Kerala High Court
Suma Dinesan vs The Manager, New India Assurance ... on 1 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
MACA NO. 1587 OF 2014
OPMV 733/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA
APPELLANTS/PETITIONERS 2 TO 4:
1 SUMA DINESAN
W/O.DINESAN, THAZHAPPALLY HOUSE, THALAYOLAPARAMBU,
KOTTAYAM DISTRICT.
2 ANJU DINESAN (MINOR)
D/O.DINESAN, THAZHAPPALLY HOUSE, THALAYOLAPARAMBU,
KOTTAYAM DISTRICT,
REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN,
SUMA DINESAN.
3 ANANDHU DINESAN (MINOR)
S/O.DINESAN, THAZHAPPALLY HOUSE, THALAYOLAPARAMBU,
KOTTAYAM DISTRICT,
REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN,
SUMA DINESAN.
BY ADV SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
RESPONDENTS/RESPONDENT NO.3 AND 1ST PETITIONER:
1 THE MANAGER, NEW INDIA ASSURANCE CO. LTD.
REPRESENTED BY ITS BRANCH MANAGER,
NEW INDIA ASSURANCE CO.LTD., PALA, PIN-686575.
2 MYTHILY SREEDHARAN
W/O.SREEDHARAN, THAZHAPPALLY HOUSE, THALAYOLAPARAMBU,
KOTTAYAM DISTRICT-686605.
BY ADV SRI.VPK.PANICKER -R1
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 1587 OF 2014
2
JUDGMENT
The petitioners who are the wife, mother and children of
the deceased Dinesan are the appellants. They claim
compensation under Section 166 of the Motor Vehicles Act of
the death of Dineshan who died in a motor accident.
2. The petitioners case is that, on 24.07.2010, at
2.45.P.M., the deceased was walking through Vaikom -
Thalayolaparambu public road and when he reached a place
called Chanthappalam, a KSRTC bus driven by the 1 st
respondent with registration No.KL-15/7442 came in a rash and
negligent manner and knocked down the deceased. He
sustained fatal injuries. Though, he was admitted in
Government Hospital, Vaikom, he succumbed to the injuries.
The accident occurred due to the negligence of the 1st
respondent.
3. The 1st respondent remained ex-parte. Respondents 2
and 3 entered appearance and filed a written statement,
contending that the petition is not maintainable and the amount
claimed is highly exorbitant. The accident happened due to the
MACA NO. 1587 OF 2014
negligence of the deceased who suddenly crossed the road.
4. The Tribunal award a total compensation of
Rs.9,10,500/- against the claim of Rs.15,72,000/- limited to
Rs.10,00,000/-.
5. The learned counsel for the appellant submits that the
Tribunal has taken the monthly income of the deceased in the
year 2010 as Rs.5,000/- only, though, he has produced
documents which show that monthly income was Rs.8,000/-. He
was working in a furniture shop. PW-2 was examined to prove
his income. The Tribunal took monthly income as Rs.5,000/- as
the petitioners had submitted that he is a coolie worker. Relying
on a decision reported in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236] the notional income be taken for an
accident which happened in the year 2010 is Rs.7,500/-. Since
the deceased was aged 45 years as per postmortem report
produced as Ext.A2. 25% can be increased as future prospectus.
Thus, the monthly income can be re-fixed as Rs.9,375/-. Since
the deceased was aged 45 years, the multiplier to be taken is
14. The Tribunal has taken it as 13. Taking the income as
MACA NO. 1587 OF 2014
Rs.9,375/- loss of dependency can be worked out as
Rs.9,375x14x12x3/4 which comes to Rs.11,81,250/-. The
Tribunal has already awarded an amount of Rs.7,60,500/-. As far
as the loss of consortium is concerned, the appellants are the
wife, children and the mother of the deceased who are four in
number. As per the decision reported in Magma General
Insurance Co.Ltd. v. Nanu Ram Allias Chuhru Ram &
Others [(2018) 18 SCC 130] the loss of consortium to be paid
as Rs.40,000/-. They are also entitled to 10% increase every
three years as per the decision reported in Pranay Sethi (supra)
and thus, the 10% increase would come to Rs.44,000 x 4, i.e.,
Rs.1,76,000/-. The Tribunal has awarded Rs.1,00,000/- under the
said head. But the Tribunal has awarded a compensation of
Rs.10,000/- towards loss of love and affection. When loss of
consortium is awarded loss of love and affection cannot be
awarded over and above the loss of consortium. Hence, the
amount of Rs.10,000/- awarded by the Tribunal on the head of
loss of love and affection is set aside. As far as the
compensation for loss of estate is concerned, the Tribunal has
awarded only Rs.5,000/- against the claim of Rs.3,00,000/-.
MACA NO. 1587 OF 2014
Relying on the decision mentioned in Pranay Sethi (supra), the
maximum amount of compensation for lost of estate is
Rs.15,000 + 10% escalation for three years which comes to
Rs.16,500/-. The maximum amount there can be awarded under
the head funeral expenses is Rs.15,000+10% escalation for
three years which come to Rs.16,500/-, the Tribunal awarded
Rs.25,000/- which has to be brought down to Rs.16,500/-.
Accordingly, the following enhancements are made to the
award passed by the Tribunal:
Sl. Head of Claim Amt. Awarded by Amt. Enhanced
Tribunal (Rs.)
No. in appeal (Rs.)
1 Loss of dependency 7,60,500/- 11,81,250/-
2. Loss of consortium 1,00,000/- 1,76,000/-
3. Loss of estate 5,000/- 16,500/-
Total 8,65,500/- 13,73,750/-
Amount enhanced 13,73,750 - 3,65,500 = 5,08,250/-
Less
Love and affection - 10,000/-
Funeral Expense - 8,500/-
[25,000-16,500]
Total (deductions) 18,500/-
Total amount enhanced 5,08,250 - 18,500 = 4,89,750/-
MACA NO. 1587 OF 2014
In the result, the appeal is allowed, the awarding of amount
under the head loss of love and affection set aside. The Insurance
Company shall pay interest for the amounts awarded by the
Tribunal at the rate directed in the impugned award and for the
enhanced amounts at the rate of 8% from the date of petition. If
any amounts have already been paid, the same shall be granted
set off. The claimants shall produce the details of the Bank account
before the Insurance Company/Tribunal within one month from the
date of receipt of a certified copy of this judgment and amount
shall be transferred to the Bank account directly through
NEFT/RTGS mode, within a period of one month thereafter. If the
Bank account is not furnished within the time stipulated, it is made
clear that no interest shall run on the enhanced amount after the
period stipulated by this Court. However, if the Insurance Company
fails to deposit the amount as directed, interest shall run at the
rate ordered by the Tribunal from the date of petition.
sd
BASANT BALAJI
JUDGE
nak
