Kerala High Court
National Insurance Co.Ltd vs Ammini on 28 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 28TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943
MACA NO. 831 OF 2016
AGAINST THE AWARD DATED 30.11.2015 IN OPMV 220/2012 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR, ERNAKULAM
APPELLANT/3RD RESPONDENT:
NATIONAL INSURANCE CO.LTD
THIRUVANANTHAPURAM,
REP. BY THE MANAGER, KOCHI REGIONAL OFFICE,
M.G.ROAD, ERNAKULAM, COCHIN - 682035.
BY ADV SRI.E.M.JOSEPH
RESPONDENTS/CLAIMANTS:
1 AMMINI, AGED 54, W/O.LATE VIJAYAN,
MANIYELIL HOUSE, RAYAMANGALAM, KURUPPAMPADY,
PERUMBAVOOR - 683545.
2 RAJESH, AGED 36, S/O. LATE VIJAYAN,
MANIYELIL HOUSE, RAYAMANGALAM, KURUPPAMPADY,
PERUMBAVOOR - 683545.
3 JAYESH, AGED 34, S/O.LATE VIJAYAN
MANIYELIL HOUSE, RAYAMANGALAM, KURUPPAMPADY,
PERUMBAVOOR - 683545.
BY ADVS.
SMT.M.MANJU, R1 TO R3
SRI.R.SUDHISH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 28.09.2021, ALONG WITH MACA.3532/2017, THE COURT ON
28.10.2021 DELIVERED THE FOLLOWING:
M.A.C.A. Nos. 831 of 2016 & 3532 of 2017
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 28TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943
MACA NO. 3532 OF 2017
AGAINST THE AWARD DATED 30.11.2015 IN OPMV 220/2012 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR, ERNAKULAM
APPELLANTS/PETITIONERS:
1 AMMINI, AGED 55 YEARS, W/O. LATE VIJAYAN,
MANIYELIL HOUSE, RAYAMANGALAM, ERNAKULAM DISTRICT.
2 RAJESH, AGED 36 YEARS, S/O. LATE VIJAYAN,
MANIYELIL HOUSE, RAYAMANGALAM, ERNAKULAM DISTRICT.
3 JAYESH, AGED 34 YEARS, S/O. LATE VIJAYAN,
MANIYELIL HOUSE, RAYAMANGALAM, ERNAKULAM DISTRICT.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENTS/RESPONDENTS:
1 BIJUMON P.S.
S/O. MANUEL, ELAVATHINKAL, KANJIKUZHY P.O.,
KOTTAYAM - 686004.
2 THE CHIEF EXECUTIVE OFFICER
KERALA NON RESIDENT KERALITES WELFARE BOARD,
GROUND FLOOR, MANIKANTA TOWERS, NEAR TENNIS CLUB,
JAWAHAR NAGAR, TRIVANDRUM-695014.
3 THE MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
ST. JOSEPH'S PRESS BUILDING, VAZHUTHACAUD,
TRIVANDRUM-695014.
BY ADV SRI.E.M.JOSEPH, FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 28.09.2021, ALONG WITH MACA.831/2016,
THE COURT ON 28.10.2021 DELIVERED THE FOLLOWING:
M.A.C.A. Nos. 831 of 2016 & 3532 of 2017
3
T.R. RAVI, J.
--------------------------------------------
M.A.C.A. Nos. 831 of 2016 & 3532 of 2017
--------------------------------------------
Dated this the 28th day of October, 2021
JUDGMENT
M.A.C.A. No.831/2016 is filed by the 3rd respondent in O.P.
(MV) No.220/2012 of Motor Accident Claims Tribunal, Perumbavoor,
who was the insurer of the offending vehicle and
M.A.C.A.No.3532/2017 is filed by the claimants in the said claim
petition. While the insurer submits that what has been awarded is
excessive, the claimants submits that what has been awarded has to
be enhanced.
2. Heard both sides.
3. The facts regarding the accident are admitted. While late
Sri.Vijayan was walking along the road, he was hit by a car and he
died as a result of the accident. The legal representatives preferred
the claim. The Tribunal awarded a sum of ₹9,07,000/- towards
compensation. According to the insurer, the amount awarded under
the heads loss of dependency, funeral expenses, pain and sufferings
and loss of love and affection, are all excessive. Regarding loss of
dependency, it is submitted that 15% was added to the monthly
income towards future prospects and only 10% ought to have been
added having regard to the fact that the deceased was a mason
M.A.C.A. Nos. 831 of 2016 & 3532 of 2017
aged 52 years. Regarding funeral expenses, it is submitted that a
sum of ₹25,000/- was awarded, which ought to have been
₹15,000/-. It is submitted that having regard to the decision in
United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder
Kaur & Ors. reported in [2020 (3) KHC 760], the legal
representatives are not entitled to claim compensation under the
head pain and sufferings and the amount of ₹5,000/- granted under
the said head is not justified. It is further submitted that the
Tribunal has granted a sum of ₹2,50,000/- to the wife and two
children towards loss of love and affection and a further sum of
₹1,00,000/- towards loss of consortium totalling to ₹3,50,000/-
which is not justified. In the light of the judgment rendered by the
Hon'ble Supreme Court in the decision in New India Assurance
Company Ltd. v. Somwati & Ors. reported in [(2020) 9 SCC
644], it is submitted that a total sum of ₹1,20,000/- alone could
have been granted, even if it is to be assumed that major sons are
entitled to parental consortium and the sum of ₹3,50,000/- awarded
under the head is highly excessive.
4. The learned counsel for the appellants in M.A.C.A.
No.3532/2017 on the other hand submitted that going by the
dictum laid down in Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011
M.A.C.A. Nos. 831 of 2016 & 3532 of 2017
SC 2951], the notional income ought to have been taken as
₹8,000/- and adding 10% towards future prospects, the monthly
income should have been taken as ₹8,800/-. The learned counsel
submits that the contention of the counsel for the insurer regarding
the amount paid under the head loss of consortium is correct.
5. Having heard the counsel for the appellants in both the
appeals, I am of the opinion that the award of the Tribunal is liable
to be modified. An amount of ₹10,000/- is to be deducted from
the compensation awarded under the head funeral expenses. An
amount of ₹5,000/- granted towards pain and sufferings is also
liable to be deducted from the total amount of compensation. An
amount of ₹2,30,000/- is to be deducted from the compensation
awarded under the two heads loss of love and affection and loss of
consortium. Regarding the loss of dependency, the amount awarded
has to be reworked on the basis of a notional income of ₹8,800/-
which would come to ₹7,74,400/-. After deducting the amount of
₹5,06,000/- awarded by the Tribunal, the appellants in
M.A.C.A.No.3532/2017 will be entitled to an additional
compensation of ₹2,68,400/- under the head.
6. In the result, both the appeals are allowed. The
appellants in M.A.C.A.No.3532/2017 are entitled to an additional
compensation of ₹23,400/- (Rupees Twenty Three Thousand Four
M.A.C.A. Nos. 831 of 2016 & 3532 of 2017
Hundred only) after deducting the sum of Rs.2,45,000/- found to be
awarded in excess from Rs.2,68,400/- found due to the appellants
as additional compensation under the head loss of dependency, with
interest at the rate of 9% per annum from the date of filing of the
claim petition till the date of realisation, with proportionate costs.
M.A.C.A.No.3532/2017 was filed with a delay of 598 days. The
delay was condoned by order dated 07.11.2017, on condition that
the appellants will not be entitled to interest on the enhance
compensation awarded by this Court for 598 days. The interest
payable on the additional compensation awarded by this judgment
will be excluding the interest on the enhanced amount for the period
of 598 days. The 3rd respondent insurer shall deposit the additional
compensation granted in M.A.C.A.No.3532/2017 along with interest
and proportionate costs, before the Tribunal within two months from
the date of receipt of a certified copy of this judgment, after
deducting any amount to which the appellants are liable towards
balance court fee and legal benefit fund. The disbursement of the
compensation to the appellants shall be in accordance with law.
Sd/-
T.R. RAVI
JUDGE
Pn
