Kerala High Court
Thankamony vs National Insurance Co.Ltd on 21 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
MACA NO.1490 OF 2018
AGAINST THE ORDER/JUDGMENT IN OPMV 405/2012 OF ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA
APPELLANTS/PETITIONERS:
1 THANKAMONY
AGED 51 YEARS, W/O. LATE THANKACHAN,
RANDUPANTHIYIL,KUMARAPURAM VILLAGE,
KARTHIKAPALLY TALUK.
2 AMBUJAKSHI
AGED 76 YEARS, W/O. MADHAVAN, RANDUPANTHIYIL,
KUMARAPURAM VILLAGE,KARTHIKAPALLY TALUK.
BY ADV SRI.NIRMAL V NAIR
RESPONDENT/ 3RD RESPONDENT:
THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD.
PARAMESWARA PILLAI BHAVAN,HOSPITAL ROAD, KOLLAM
691 001.(NO RELIEF IS CLAIMED AS AGAINST
RESPONDENTS 1 AND 2 IN THE O.P(MV) BEFORE THE
MACT AND THEREFORE, THEY ARE NOT NECESSARY
PARTIES AND NOT ARRAYED AS PARTIES TO THIS
APPEAL AND THEY WERE SET EX-PARTE BEFORE THE
MACT).
BY ADV SRI.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 21.10.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A No.1490 of 2018 2
SOPHY THOMAS, J.
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M.A.C.A No.1490 of 2018
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Dated this the 21st day of October, 2022
JUDGMENT
This appeal has been preferred by the claimants in
OP(MV) No.405 of 2012 on the file of Addl.Motor Accidents Claims
Tribunal, Mavelikkara. They are challenging the impugned Award
on the ground of inadequacy of the compensation.
2. On 26.01.2012 at 6.15 p.m while Sri.Thankachan was
walking through the western side of Kollam-Alappuzha National
Highway, he was knocked down by KL 02 AG 252 car driven by the
1st respondent in the above O.P, in a rash and negligent manner.
He sustained fatal injuries and he was rushed to Govt. Hospital,
Haripad. But, on the way, he succumbed to the injuries. The 2nd
respondent is the owner and the 3rd respondent is the insurer of
the offending vehicle. The incident, death of Sri.Thankachan and
the policy of the vehicle are admitted.
3. The legal heirs of deceased Thankachan claimed
compensation of Rs.7 lakh. No oral evidence was adduced from
either side. Exts.A1 to A7 were marked.
4. The Tribunal, on analysing the facts and evidence,
awarded compensation of Rs.8,11,052/- with interest @ 7.5%.
5. The appellants are of the view that, the notional income
of deceased Thankachan was not properly assessed by the Tribunal
and so, the compensation awarded was not the 'just'
compensation. They amended the claim petition at the appellate
stage as per order in I.A No.1 of 2019 making their total claim
amount as Rs.10,19,104/-.
6. The deceased Thankachan was stated to be a mason
earning a monthly income of Rs.12,000/-. But no reliable evidence
was adduced to prove his monthly income as Rs.12,000/-. So, the
Tribunal fixed his notional income as Rs.5,000/-. Going by the
decision Ramchandrappa vs. Manager, Royal Sundaram
Alliance Insurance Company Limited (AIR 2011 SC 2951),
even a vegetable vendor in the year 2012 would have been getting
monthly income of Rs.8,500/-. Deceased Thankachan, who was a
mason, may not have been getting a monthly income lesser than
that. So, his notional income could have been fixed @ Rs.8,500/-.
Since he was aged 50 and self employed, towards future
prospects, 25% enhancement also could have been given.
Towards personal expenses, 1/3rd ought to have been deducted as
he was having two dependents. So, his monthly income for
determining loss of dependency could have been taken as
Rs.7,083/-. Since he was aged 50, the multiplier applicable was
13. So, the compensation for loss of dependency could have been
assessed as Rs.11,04,948/- (7083x12x13). The claimants were
already paid Rs.6,50,052/- towards loss of dependency. So, they
are eligible to get the balance amount of Rs.4,54,896/- towards
enhanced compensation for loss of dependency.
7. Since Sri.Thankachan died of the fatal injuries suffered by
him, the legal heirs are not entitled for compensation towards pain
and sufferings. Rs.10,000/- awarded by the Tribunal towards pain
and sufferings is liable to be deducted.
8. Towards loss of consortium, spousal as well as parental,
the appellants are entitled to get Rs.44,000/- each going by the
decision National Insurance Company Ltd. vs. Pranay Sethi
and Others, [(2017) 16 SCC 680]). But, the amount already
awarded towards loss of love and affection as well as consortium
totalling Rs.1,15,000/- is liable to be deducted. Rs.27,000/-
received in excess is liable to be deducted. So, from the enhanced
compensation of Rs.4,54,896/-, Rs.37,000/- is liable to be
deducted, including the compensation for pain and sufferings. So,
the balance entitled is Rs.4,17,896/-.
9. The compensation awarded under all other heads seems
to be just and proper and it needs no interference.
Head of Amount Amount Amounts Difference to
claim awarded by awarded in deducted in be drawn as
the Tribunal appeal appeal enhanced
(2) (3) (4) compensatio
(1) n
Loss of Rs.6,50,052/- Rs.11,04,948/- Rs.4,54,896/-
dependency
Pain and Rs.10,000/- Rs.10,000/-
sufferings
Loss of love Rs.1,15,000/- Rs.88,000/- Rs.27,000/-
& affection & (1,15,000-
consortium 88000)
Total Rs.37,000/- Rs.4,54,896/-
Enhanced compensation (454896-37000) Rs.4,17,896/-
10. In the result, the appellants are entitled to get enhanced
compensation of Rs.4,17,896/- (4,54,896-37,000).
The respondent-National Insurance Company Limited is
directed to deposit the enhanced compensation in the Bank
Account of the appellants with interest @ 7.5% per annum from
the date of petition till the date of deposit within a period of two
months from the date of receipt of a copy of this judgment. 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 appellants towards Tax, balance court fee
and legal benefit fund.
This appeal is allowed accordingly. No order as to costs.
Sd/-
SOPHY THOMAS
JUDGE
smp
