Mercy Babu vs The Branch Manager
2021 Latest Caselaw 19991 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                      MACA NO. 2133 OF 2015
[AGAINST THE AWARD DATED 19.11.2014 IN OP(MV) NO.360/2012 ON THE
     FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,
                         PATHANAMTHITTA]
APPELLANTS/PETITIONERS IN THE OP(MV):

    1     MERCY BABU
          AGED 41 YEARS
          W/O. LATE BABU VARGHESE, CHARIVUKALAYIL HOUSE,
          NANNUVAKADU NORTH, PATHANAMTHITTA P.O.


    2     BRILLA BABU
          AGED 21 YEARS
          D/O. LATE BABU VARGHESE, CHARIVUKALAYIL HOUSE,
          NANNUVAKADU NORTH, PATHANAMTHITTA P.O.

    3     BRIGITH BABU
          AGED 13 YEARS
          (MINOR), S/O. LATE BABU VARGHESE, CHARIVUKALAYIL
          HOUSE, NANNUVAKADU NORTH, PATHANAMTHITTA P.O.

    4     SKARIAH VARGHESE
          AGED 83 YEARS
          S/O. SKARIAH, CHARIVUKALAYIL HOUSE, NANNUVAKADU NORTH,
          PATHANAMTHITTA P.O.

    5     CHINNAMMA VARGHESE
          AGED 80 YEARS
          W/O. SKARIAH VARGHESE, CHARIVUKALAYIL HOUSE,
          NANNUVAKADU NORTH, PATHANAMTHITTA P.O. ( DECEASED)


          LEGAL REPRESENTATIVES RECORDED
          IT IS RECORDED THAT THE APPELLANTS 1 TO 3 ARE THE
          LEGAL REPRESENTATIVES OF THE DECEASED APPELLANTS 4 AND
          5 IN VIEW OF THE MEMO DATED 28/06/2021 AS PER THE
          ORDER DATED 14/7/2021 IN MACA 2133/2015.
 MACA No.2133 of 2015                   2



             BY ADVS.
             T.K.BIJU (MANJINIKARA)
             ANNIE M.ABRAHAM



RESPONDENT/3RD RESPONDENT IN OP(MV):

             THE BRANCH MANAGER
             UNITED INDIA INSURANCE COMPANY LIMITED, KIZHAKKEDATHU
             BUILDINGS, PATHANAMTHITTA - 689 647.

             BY ADVS.
             SRI.JOHN JOSEPH VETTIKAD




      THIS   MOTOR     ACCIDENT   CLAIMS   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No.2133 of 2015               3




                             JUDGMENT

The petitioners in OP(MV)No.360 of 2012 on the file

of the Motor Accidents Claims Tribunal, Pathanamthitta

are the appellants herein.

2. The aforesaid claim petition was filed by them

seeking compensation for the death of one Babu Varghese,

the husband of the 1st appellant, father of the 2nd and 3rd

appellants and the son of the 4th and 5th appellants. The

4th ad 5th appellants in this appeal passed away during

the pendency of the appeal and appellants 1 to 3 were

declared as the legal representatives of the said

appellants. According to the appellants, the deceased

was aged 44 years and was a driver with a monthly income

of Rs.8,000/-. The accident occurred when an autorikshaw

driven by the deceased collided with a car driven by the

1st respondent, owned by the 2nd respondent and insured

with the 3rd respondent. As compensation, they claimed an

amount of Rs.9,95,000/-.

3. The 3rd respondent-Insurance Company alone

contested the matter by filing a written statement

wherein they admitted the coverage of policy in respect

of the offending vehicle. However, they disputed the

negligence and quantum of compensation. From the side of

the appellants PW1 and PW2 were examined. Exhibits A1 to

A10 were marked on the side of the appellants. No

evidence was adduced from the side of the respondents.

4. After the trial, the Tribunal held that the

accident occurred due to the negligence of the 1st

respondent and the 2nd and 3rd respondents were,

therefore, held to be liable for paying the

compensation. The quantum of compensation was fixed as

Rs.11,61,000/- and the 3rd respondent was directed to

deposit the said amount along with the interest at the

rate of 9% per annum. Being dissatisfied with the said

compensation, this appeal is filed.

5. Heard both sides. The learned counsel for the

appellants would submit that the quantum of compensation

awarded by the Tribunal is very low. According to him,

the monthly income fixed by the Tribunal was only

Rs.5,000/- as against the claim of Rs.8,000/-.

6. Per contra, the learned counsel for the

Insurance Company would point out that the Tribunal has

awarded excess amount under the head of loss of

consortium which is Rs.1,00,000/- and an amount of

Rs.2,00,000/- has been granted under the head of loss of

love and affection. According to the learned counsel, in

the light of the judgment rendered by the Hon'ble

Supreme Court in United India Insurance Co.Ltd. v.

Satinder Kaur @ Satwinder Kaur and Others (AIR 2020 SC

3076), no amount ought to have been granted under the

head of loss of love and affection, when compensation is

awarded under the head of loss of consortium.

7. When we consider the question of compensation

under the head of loss of dependency, the Tribunal

proceeded to determine the compensation by taking the

monthly income as Rs.5,000/-. It is true that, there is

no proper document to substantiate the income of the

deceased. It is the case of the appellants that the

deceased was a driver. The said fact is evident from the

accident itself, as he was driving the autorikshaw

involved in the accident at the relevant time. From the

said aspect, it is evident that he is a driver by

profession. In Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011)13 SCC 236],

the Hon'ble Supreme Court was pleased to fix the monthly

income of a coolie as Rs.4,500/- in respect of an

accident occurred in the year, 2004. Similarly in Syed

Sadiq v. Divisional Manager, United Indian Insurance

Company Limited [(2014)2 SCC 735], Rs.6500/- was fixed

as the monthly income of a vegetable vendor in respect

of an accident occurred in the year, 2008. Considering

the principles laid down by the Hon'ble Supreme Court in

the aforesaid judgments, an amount of Rs.8,000/- as

claimed by the appellants as the monthly income of the

deceased in respect of an accident occurred in the year

2012, cannot be treated as excessive. In such

circumstances, I am inclined to fix the monthly income

as Rs.8,000/-. Since the deceased comes within the age

group of 40-50, an addition of 25% of his income as

future prospects is to be made, as laid down by the

Hon'ble Supreme Court in National Insurance Company Ltd.

v. Pranay Sethi[2017(4)KLT 662], When compensation for

loss of dependency is re-worked, with the above

revised criteria, it comes to Rs.12,60,000/-

(Rs.(8000+25%)x12x14x3/4). The Tribunal has already

awarded an amount of Rs.8,19,000/- and hence the balance

amount receivable by the appellants under this head

comes to Rs.4,41,000/-.

8. When we examine the other heads, it can be seen

that the Tribunal has awarded an amount of Rs.1,00,000/-

under the head of loss of consortium. As per the

principles laid down in Satwinder Kaur's case (supra)

the wife is entitled for spousal consortium, children

are entitled for parental consortium and the parents are

entitled for filial consortium. The compensation to be

awarded under these heads is fixed as Rs.40,000/- each.

In such circumstances, the amount of Rs.1,00,000/-

awarded by the Tribunal under the head of spousal

consortium is to be set aside. Instead of that, all the

petitioners shall be entitled for compensation for

spousal, parental and filial consortium at the rate of

Rs.40,000/- each which comes to Rs.2,00,000/-. Even

though the 4th and 5th petitioners are not alive, being

the legal representatives of the deceased petitioners,

the appellants herein, are entitled for the amounts

awarded as filial consortium, to the deceased

appellants.

9. Regarding the amount under loss of love and

affection, I find some force in the contention of the

learned counsel for the Insurance Company in this

regard. In Satwinder Kaur's case (supra) the Hon'ble

Supreme Court held that when compensation is awarded

under the head of loss of consortium, no separate amount

needs to be awarded under the head of loss of love and

affection, as the amount awarded under the loss of

consortium takes care of the head of loss of love and

affection as well. In such circumstances, the amount of

Rs.2,00,000 awarded under the head of loss of love

affections is set aside. The amount awarded under the

head of funeral expenses is Rs.25,000/- which is in

excess of Rs.10,000/-. However, I am not interfering

with the said amount on the reason that the amount

awarded under the head of loss of estate is only 5,000/-

which is lesser by Rs.10,000/-.

In the above circumstances, the appellants are found

entitled for an additional amount of Rs.3,41,000/-

(Rupees Three Lakhs and Fortyone thousand only)

[Rs.4,41,000+2,00,000-(2,00,000+1,00000)]. The Insurance

Company shall deposit the said amount along with

interest at the rate of 9% per annum and proportionate

costs within a period of three months from the date of

receipt of a copy of this judgment.

Sd/-

ZIYAD RAHMAN A.A.,JUDGE

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