The National Insurance Company ... vs Sarada
2022 Latest Caselaw 9851 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
    WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                       MACA NO. 764 OF 2014

    OP(MV) 1350/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
                         PATHANAMTHITTA

APPELLANT/4TH RESPONDENT IN OP(MV)1350/2005:

  THE NATIONAL INSURANCE COMPANY LTD.,
  KOLLAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.
  ROAD, ERNAKULAM.

  BY ADVS LAL GEORGE



RESPONDENTS/CLAIMANTS 1 TO 4 AND RESPONDENTS 1 TO 3 AND
ADDL.RESPONDENTS 5, 6 & 7 IN MV(OP)NO.1350/2005:


1 SARADA, W/O. LATE SREENIVASAN, PATHALUKUTHI HOUSE,
  PARAKKULAM, THEKKUTHODE P.O., THANNITHODE VILLAGE,
  KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT- 689699.

2 SMITHA KUMARI, AGED 30 YEARS, D/O. LATE SREENIVASAN,
  PATHALUKUTHI HOUSE, PARAKKULAM, THEKKUTHODE P.O.,
  THANNITHODE VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA
  DISTRICT- 689699.

3 SUMESHMON, AGED 25 YEARS, S/O. LATE SREENIVASAN,
  PATHALUKUTHI HOUSE, PARAKKULAM, THEKKUTHODE. P.O.,
  THANNITHODE VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA
  DISTRICT- 689699.

4 SACHIN MON, AGED 17 YEARS, S/O. LATE SREENIVASAN,
  PATHALUKUTHI HOUSE, PARAKKULAM, THEKKUTHODE P.O.,
  THANNITHODE VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA
  DISTRICT- 689699. (REPRESENTED BY HIS MOTHER SARADA).
     MACA 764 of 2014                  2



5 SIRAJUDEEN, S/O. SAINULABDEEN, MARUTHIMOODU HOUSE,
  SATHYAMANGALAM, KOLLAYIL P.O., KOLLAM (DIED)., -691541.

6 NIREESH MOHAN, PUTHEN VEETTIL, THEKKUTHODE P.O,
  THANNITHODU VILLAGE,- 689699.

7 NASIR @ NISSAR, S/O. MEERA SAHIB, CHARUVILAYIL PUTHEN
  VEEDU, THEKKUTHODE P.O., THANNITHODU VILLAGE, 689699.

8 SAINULABDEEN, MARUTHIMOODU HOUSE, SATHYAMANGALAM,
  KOLLAYIL.P.O., 691541, KOLLAM.

9 FATHIMA BEEVI, MARUTHIMOODU HOUSE, SATHYAMANGALAM,
  KOLLAYIL P.O., KOLLAM- 691541.

10 SHIHABUDIN, S/O. SAINULABDEEN, MARUTHIMOODU HOUSE,
   SATHYAMANGALAM, KOLLAYIL P.O., KOLLAM-691541.

   R1 TO R4 BY ADV SRI.M.G.SREEJITH



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 26.08.2022, THE COURT ON 31.08.2022 DELIVERED THE FOLLOWING:
 MACA 764 of 2014                3



                       JUDGMENT

The 4th respondent Insurer is the appellant herein

challenging the impugned award in OP(MV) No.1350 of

2005 on the file of the Motor Accidents Claims Tribunal,

Pathanamthitta. According to the appellant, the

compensation awarded by the Tribunal is excessive and

so it is liable to the set aside.

2. One Mr.Sreenivasan met with a road traffic

accident on 16.05.2004 at 4.15 p.m. and he succumbed

to the fatal injuries he had suffered in that accident. The

deceased Sreenivasan was the cleaner of KL-8/G-4320

lorry and for giving way to a KSRTC bus, he came out of

the lorry and while giving directions, the lorry skidded

off the road and the timber loaded in the lorry fell down

on the deceased and he sustained serious injuries. The

claimants, who are the wife and children of the

deceased, approached the Tribunal claiming

compensation of Rs.6,00,000/- and the Tribunal

awarded compensation of Rs.8,73,300/- and that is

challenged by the Insurer.

3. The appellant is disputing the amount awarded

towards loss of consortium and loss of love and

affection. Moreover, though the claim was only

Rs.6,77,000/-, the Tribunal awarded compensation

exceeding the claim and so, the award is liable to be set

aside.

4. The deceased was a 43 year old lorry cleaner on

the date of his death. The accident was in the year

2004. So going by the decision Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Limited [AIR 2011 SC 2951], his notional

income ought to have been fixed as Rs.4,500/-. The

Tribunal took only Rs.3,000/- as his notional income.

But even according to the claimants, his monthly income

was only Rs.4,000/-. So, his income ought to have been

fixed as Rs.4,000/-. Since he was a lorry cleaner, aged

only 43, towards future prospects, he was eligible to get

an addition of 25%. So his income could have been

fixed as Rs.5,000/-. On deducting ¼ towards personal

expenses, as he was having four dependents, his

monthly income could have been taken as Rs.3,750/-.

So the loss of dependency could have been assessed as

Rs.6,30,000/- (3750X12x14). But the Tribunal awarded

only Rs.4,36,800/-. So, there was difference of

Rs.1,93,200/-, which was in fact due to the dependents.

5. Under the head funeral expenses, Rs.25,000/-

was awarded in the place of eligible amount of

Rs.15,000/-. So, Rs.10,000/- was awarded in excess by

the Tribunal.

6. Towards pain and suffering, the legal heirs were

not entitled to get any amount. But the Tribunal

awarded Rs.5,000/- and that amount is liable to be

deducted.

7. Towards love and affection, the wife and three

children were eligible to get Rs.44,000/- each, which will

come to Rs.1,76,000/-. But the Tribunal awarded

Rs.4,00,000/- in total under the head loss of love and

affection and loss of consortium. So an excess amount

of Rs.2,24,000/- was awarded by the Tribunal under that

head.

8. Towards loss of estate, the Tribunal awarded

only Rs.5,000/- whereas the claimants were eligible to

get Rs.15,000/-. So, there is deficit of Rs.10,000/-

under the head 'loss of estate'. So, on going through

the amount awarded and the amount ought to have

been awarded by the Tribunal, according to the

appellant, Rs.2,39,000/- was awarded in excess. But,

when the income of the deceased is taken as

Rs.4,000/-, he was eligible to get excess amount of

Rs.1,93,200/- and also Rs.10,000/- towards loss of

estate amounting to Rs.2,03,200/- in total. So, the

difference is only Rs.35,800/-.

Head of claim Amount Amount Amounts Difference to awarded by awarded in deducted in be drawn as the Tribunal appeal appeal enhanced compensation

Loss of Rs.4,36,800/- Rs.6,30,000/- Rs.1,93,200 /- dependency

Funeral Rs.25,000/- Rs.15,000/- Rs.10,000/- expenses

Pain and Rs.5,000/- ..... Rs.5,000/- suffering

Love and Rs.4,00,000/- Rs.1,76,000/- Rs.2,24,000/- affection

Loss of estate Rs.5,000/- Rs.15,000/- Rs.10,000/-

Total Rs.2,39,000/- Rs.2,03,200/-

Excess amount awarded by the Tribunal is Rs.35,800/- (2,39,000 - 2,03,200)

9. So, the appeal is allowed in part finding that the

amount awarded by the Tribunal was Rs.35,800/- in

excess of what was due to respondents 1 to 4.

10. The appellant has already deposited 50% of

the amount awarded by the Tribunal as per direction of

this Court. From the balance amount to be deposited,

the appellant can deduct Rs.35,800/- (Rupees Thirty

Five Thousand Eight Hundred only) with proportionate

interest. The deposit must be in terms of the directives

issued by this Court in Circular No.3 of 2019 dated

06/09/2019 and clarified in O.M.No.D1/62475/2016 dated

07/11/2019 after deducting the liabilities, if any, of the

respondents towards Tax, balance court fee and legal benefit

fund.

The appeal is allowed in part to that extent. No

order as to costs.

Sd/-

SOPHY THOMAS JUDGE DSV/25.08.2022