Kerala High Court
The New India Assurance Company ... vs Sabeena on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
MACA NO. 506 OF 2016
[AGAINST THE AWARD IN OP(MV) NO. 1406/2011 DATED 13.08.2015 ON THE
FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS
TRIBUNAL-1,PATHANAMTHITTA]
APPELLANT/2ND RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LIMITED
PATHANAMTHITTA NOW REPRESENTED BY ITS MANAGER, REGIONAL
OFFICE, M.G.ROAD, KOCHI-11.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
RESPONDENT/S:
1 SABEENA
W/O SHANAVAS, PALLIPADINJATTETHIL, ANGAMOOZHI P.O.,
PIN:68964.
2 LANA FATHIMA (MINOR)
D/O SHANAVAS, PALLIPADINJATTETHIL, ANGAMOOZHI P.O.,
PIN:689645 REPRESENTED BY HER MOTHER IST RESPONDENT.
BY ADV SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.506 of 2016 2
JUDGMENT
This appeal is filed by the Insurance Company
challenging the quantum of compensation in
OP(MV)No.1406 of 2011 on the file of the Additional
Motor Accidents Claims Tribunal-1, Pathanamthitta.
2. The claim petition was filed by respondents
in the appeal who are the wife and child of one
Shanavas, who died due to the injuries sustained in a
motor accident occurred on 3.12.2011. According to
the claimants/respondents, the deceased was aged 36
years and was a driver by profession. In addition to
that, he was also conducting a medical shop and the
total monthly income claimed was Rs.25,000/-. The
amount of compensation claimed was Rs.44,37,000/-
(Even though the original claim was Rs.16,75,000/-,
the same was later amended as Rs.44,37,000/-).
3. The appellant-Insurance Company who is the 2nd
respondent in the claim petition filed a written
statement admitting the coverage of policy but
disputed the liability on various grounds. The age,
occupation, income of the deceased and the negligence
were disputed. In the trial followed, the 1 st
respondent was examined as PW1 and Exts. A1 to A11
were marked. No evidence was adduced from the side of
the appellant. After the trial, the Tribunal passed
an award allowing an amount of Rs.35,87,000/- as
compensation and the Insurance Company was directed
to deposit the said amount along with interest at the
rate of 9% per annum. Being aggrieved by the quantum
of compensation as above, this appeal is filed.
4. Heard both sides.
5. The learned Senior Counsel for the appellant,
Sri.Mathews Jacob mainly contended that, the Tribunal
committed an error while fixing the monthly income as
18,000/- and also in making an addition of 50%
towards future prospects. In response to the said
contention, the learned counsel for the respondents
would contend that with respect to the monthly
income, it has come out in the evidence of PW1, the
wife of the deceased, that the deceased was
conducting a medical shop and consequent to his
death, the said shop was closed. She would rely upon
Exts.A8 and A9 certificates issued by the President
of Seethathode Grama Panchayat and also by the Drugs
Controller in support of her contentions. On perusal
of the said documents, I find that, the contention
raised by the learned counsel for the respondents is
having some force. When there are documents
supporting the claim of the respondents, showing the
business of the deceased, validity of which are not
seriously challenged, I do not find any grounds to
disregard the same. The Tribunal, has appreciated the
said evidence and fixed the monthly income based on
the same. I am unable to find any discrepancy in
fixing the monthly income as Rs 18,000/-. In such
circumstances, I am not inclined to interfere with
the monthly income fixed by the Tribunal. However, I
find some force in the contention put forward by the
learned Senior Counsel with regard to the addition
made by the Tribunal towards future prospects. As per
the decision of the Hon'ble Supreme Court in National
Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT
662], in respect of persons who are self-employed,
the proper addition to be made is 40% and 50%
addition is contemplated for regular salaried
persons. As the deceased was a self-employed person,
the proper deduction should be 40% and not 50% as
taken by the Tribunal. In such circumstances, the
loss of dependency has to be re-worked by making the
addition towards future prospects as 40% and this
would come to Rs.30,24,000[(18,000+7200)x12x15x2/3].
Thus, the excess amount awarded by the Tribunal under
this head is Rs.2,16,000/-.
6. Other heads to which the Learned Senior
Counsel brought the notice of this Court are the
amounts awarded under the heads of loss of
consortium, loss of love and affection, loss of
estate and funeral expenses. It is seen that, an
amount of Rs.1 lakh was granted under the head of
loss of consortium. However, as per the principles
laid down in Pranay Sethi' case (supra) and United
India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder
Kaur and Others (AIR 2020 SC 3076), the 1st respondent
is entitled for spousal consortium at the rate of
Rs.40,000/- whereas the 2nd respondent is entitled for
parental consortium at the same rate. The amount of
Rs.1 lakh granted under the head of loss of
consortium is, therefore, re-fixed as Rs.80,000
(Rs.40,000 x 2). In Satwinder Kaur's case (super), it
was further held by the Hon'ble Supreme Court that,
when compensation is awarded under the head of loss
of consortium, no separate amount is to be granted
under the head of loss of love and affection. As
rightly pointed out by the learned Senior Counsel, in
this case, an amount of Rs.1 lakh is seen granted
under this head and the same is set aside. It is also
seen that, an amount of Rs.1 lakh is granted under
the head of loss of estate which is extremely high as
according to the principles laid down in
Pranay Sethi' case (supra), the eligible amount under
this head is Rs.15,000/-. Therefore, an amount of
Rs.85,000/- is to be deducted from the total amount
of compensation awarded by the Tribunal. Similarly,
the amount awarded under the head of funeral expenses
is excessive by Rs.10,000/- and this is also to be
deducted. The learned Senior Counsel further points
out that, by relying upon the observations contained
in Satwinder Kaur's case (super), an amount of
Rs.20,000/- granted under the head of pain and
suffering is unwarranted and hence to be deducted.
However, I am not interfering with the said amount,
taking into account of the fact that substantial
deductions have already been made under the other
heads. The deceased left behind a wife aged 27 years
only and a daughter just aged 10 months. Considering
the factual situation in this case, I do not deem it
appropriate to interfere with the compensation
granted under the head of pain and suffering in this
case.
In the light of the findings mentioned above it
is found that, the excess amount awarded
by the Tribunal would come to Rs.4,31,000
[Rs.216000+20000+85000+10000+100000]. Accordingly the
total amount of compensation receivable by the
respondents is re-fixed as Rs.31,56,000/- (Rupees
Thirtyone Lakhs and Fifty six thousand only)
[Rs.35,87,000-4,31,000]. The appellant- Insurance
Company shall deposit the said amount along with
interest at the rate of 9% per annum from the date of
petition till realisation. It is reported that 50% of
the said amount has been deposited by the appellant
in compliance of the condition imposed by this Court
while granting stay of proceedings. In the light of
the above, the Insurance Company shall deposit the
balance amount after adjusting the payments already
affected by them.
The appeal is disposed of as above.
Sd/-
ZIYAD RAHMAN A.A.,
JUDGE
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