Omana Sebastian vs Soman
2022 Latest Caselaw 6744 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
     TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                         MACA NO. 3542 OF 2015
   AGAINST THE AWARD DATED 30.04.2015 IN OPMV 697/2013 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL-II ,KOTTAYAM
APPELLANT/PETITIONERS:

    1     OMANA SEBASTIAN
          W/O.LATE SEBASTIAN JOSEPH, KAITHAYIL HOUSE,
          PULIKKUZHY MATTOM BHAGOM, KURICHY KARA,
          KURICHY VILLAGE.

    2     BIJO SEBASTIAN
          S/O.LATE SEBASTIAN JOSEPH, KAITHAYIL HOUSE,
          PULIKKUZHY MATTOM BHAGOM, KURICHY KARA,
          KURICHY VILLAGE.

    3     JOBI SEBASTIAN
          S/O.LATE SEBASTIAN JOSEPH, KAITHAYIL HOUSE,
          PULIKKUZHY MATTOM BHAGOM, KURICHY KARA,
          KURICHY VILLAGE.

    4     KUNJUMMA, W/O.LATE JOSEPH, KAITHAYIL HOUSE,
          PULIKKUZHY MATTOM BHAGOM, KURICHY KARA,
          KURICHY VILLAGE.

          BY ADV SRI.K.A.HASHIM



RESPONDENT/RESPONDENTS:

    1     SOMAN
          S/O.PACHU, KANNONKAL HOUSE, NEDUNKARAI BHAGOM,
          KONGANDOOR KARA, AIYARKUNNAM VILLAGE, PIN-686 564.

    2     THE ORIENTAL INSURANCE CO. LTD.
          DIVISIONAL OFFICE, KOTTAYAM, PIN-686 001.

          BY ADV SMT.REKHA NAIR


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 3542 OF 2015              ..2..




                            JUDGMENT

The petitioners are the claimants in O.P.(MV)No.697/2013 on

the files of the Motor Accidents Claims Tribunal-II, Kottayam.

Aggrieved by the amount of compensation awarded by the

Tribunal, they preferred this appeal. The parties are referred to as

per their status in the claim petition.

2. The 1st petitioner is the wife, petitioners 2 and 3 are the

children and the 4th petitioner is the mother of deceased Sebastian

Joseph, who died in a motor vehicle accident which happened on

07.04.2013. According to the petitioners, while deceased Sebastian

Joseph was travelling on a motor cycle as pillion rider, an

autorickshaw bearing Reg. No.KL-05-AF-3513, driven by the 1st

respondent, hit on the motor cycle and the deceased sustained

serious injuries. He was taken to the hospital and while undergoing

treatment, he succumbed to the injuries on 09.04.2013. The 1 st

respondent is the owner-cum driver of the autorickshaw and 2 nd

respondent is its insurer. According to the petitioners, the accident MACA NO. 3542 OF 2015 ..3..

happened due to the negligence on the part of the 1 st respondent.

They claimed an amount of Rs.12,00,000/- as total compensation

for the death of Sebastian Joseph, the only bread winner of the

family.

3. The 1st respondent remained ex parte before the Tribunal.

The 2nd respondent insurance company filed a written statement

admitting that the autorickshaw was having a valid policy of

insurance at the time of the accident. However, it was contended

that the accident happened due to the negligence on the part of the

deceased and that the compensation claimed is excessive and

exorbitant. They also contended that the 1st respondent was not

having a valid driving licence at the time of the accident.

4. The Tribunal found that the accident happened due to the

negligence on the part of the 1st respondent and that the 1st

respondent was not having a valid driving licence at the time of the

accident and as such, there was violation of conditions of policy.

The Tribunal awarded an amount of Rs.9,84,900/- as total

compensation with 8.5% interest per annum from the date of the MACA NO. 3542 OF 2015 ..4..

petition till realisation with proportionate costs. The 2 nd respondent

insurance company was directed to satisfy the award. However,

the right of the insurance company to recover the amount from the

1st respondent was reserved by the Tribunal, in terms of Section

149(4) of the Motor Vehicles Act, 1988.

5. The compensation awarded by the Tribunal under different

heads is as follows:-

   Sl. Head of claim (Rs)          Amount            Amount
   No.                             claimed (Rs.)     awarded
                                                     (Rs.)

   1    Loss of earnings           1,500             Nil

   2    Transport to hospital      5,000             3,000

   3    Damage to clothing and 5,000                 1,000
        articles

   4    Medical expenses           30000             5000



   6    Extra nourishment          1,000             Nil

   7    Loss of         love    and 80,000           50,000
        affection

   8    Loss of consortium         50,000            1,00,000
 MACA NO. 3542 OF 2015           ..5..




   9     Funeral expenses         25,000             25,000

   10 Compensation for loss of 15,21,000             7,60,500
      dependency

   11    Pain and suffering       75,000             20,000

   12 Loss of estate              50,000             10,000

   13 Mental     agony        and 50,000             Nil
      suffering     by         the
      dependents

         Total                    18,69,500          9,84,900
                                  limited       to
                                  12,00,000

6. Aggrieved by the quantum of compensation awarded by the

Tribunal, the petitioners have come up in appeal.

7. According to the petitioners, the deceased was a mosaic

worker and was earning an amount of Rs.13,000/- per month. He

was aged 47 years at the time of the accident. The Tribunal found

that no evidence was let in by the petitioners to prove the income

of the deceased. Accordingly, the notional income of the deceased

was fixed as Rs.5,000/- per month. Going by the decision of the MACA NO. 3542 OF 2015 ..6..

Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited [2011 (13)

SCC 236 : AIR 2011 SC 2951], the notional monthly income of the

deceased can be taken as Rs.9,000/- for the purpose of computation

of compensation. The Tribunal has added 30% of the income

towards future prospects. The deceased was aged 47 years at the

time of the accident and therefore, only 25% of the notional income

can be added towards future prospects [(National Insurance

Company Ltd. v. Pranay Sethi [2017(4) KLT 662 SC].

Therefore, the notional monthly income comes to Rs.11,250/-.

There are four dependents and hence 1/4 th of the income has to be

deducted towards personal and living expenses. The Tribunal has

rightly taken the multiplier as '13'. Accordingly, the compensation

for loss of dependency is re-calculated as Rs.13,16,250

[11,250x12x13x3/4]. The Tribunal has already awarded an amount

of Rs.7,60,500/-. After deducting the said amount, the petitioners

are entitled for an amount of Rs.5,55,750/- [13,16,250-7,60,500]

as enhanced compensation under the said head.

MACA NO. 3542 OF 2015 ..7..

8. Towards loss of consortium, the Tribunal has awarded an

amount of Rs.1,00,000/- and Rs.50,000/- was awarded for loss of

love and affection. The petitioners are the wife, children and

mother of the deceased. In the light of the decision in Pranay

Sethi, they are entitled for an amount of Rs.44,000/- each

[Rs.40,000+10% hike in every three years] under the head loss of

consortium. Thus, the compensation under the said head is re-

assessed as Rs.1,76,000/- [44,000x4]. Since an amount of

Rs.1,00,000/- has already been awarded, the petitioners are entitled

for an additional sum of Rs.76,000/- under the head loss of

consortium. The Hon'ble Supreme Court has held in United India

Insurance Co.Ltd. v. Satinder Kaur [AIR 2020 SC 3076] that,

when compensation is awarded under the head loss of consortium,

there is no justification in awarding compensation for loss of love

and affection as a separate head. Therefore, the petitioners are not

entitled for any amount under the head loss of love and affection

and amount of Rs.50,000/- awarded under the head loss of love and

affection has to be deducted from the total compensation.

MACA NO. 3542 OF 2015 ..8..

9. Towards compensation under the head funeral expenses,

the Tribunal has awarded an amount of Rs.25,000/-. Going by the

decision in Pranay Sethi (supra), the petitioners are entitled only

for an amount of Rs.16,500/- [15,000 + 10% hike for every three

years]. Therefore, an amount of Rs.8,500/- [25,000-16,500] has to

be deducted under the said head.

10. The Tribunal has awarded only an amount of Rs.10,000/-

towards loss of estate. The petitioners are entitled for an amount

of Rs.16,500/- [15,000 + 10% hike for every three years],

following the decision in Pranay Sethi (supra). Therefore,

Rs.6,500/- [16,500-10,000] more is granted under this head.

11. I find that the compensation awarded by the Tribunal

under other heads is just and reasonable.

Accordingly, the petitioners are entitled for a total enhanced

amount of Rs.5,79,750/- [5,55,750+76,000-50,000-8,500+6500].

The 2nd respondent insurance company shall deposit the said

amount before the Tribunal with 8.5% interest per annum along

with proportionate costs within a period of two months from the MACA NO. 3542 OF 2015 ..9..

date of receipt of copy of this judgment. The right of the insurance

company to recover the amount from the 1st respondent is retained.

The apportionment of the amount shall be made as directed by the

Tribunal. While calculating the interest on the enhanced

compensation, the petitioners will not be entitled for interest for a

period of 139 days in the light of the order dated 01.08.2019 in

C.M.Application No.4271/2015 in the appeal.

The appeal is disposed of.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB/15/06/2022