Rejani vs Micheal
2023 Latest Caselaw 2404 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA,
                              1944
                    MACA NO. 1188 OF 2012
AGAINST THE JUDGMENT IN OPMV 2217/2009 DATED 19.01.2012
        OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANTS/PETITIONERS:

    1      REJANI
           W/O.LATE ABHILASH P.R., ABHIRAMAM, WEST
           LINE,CHANGAMPUZHA ROAD, EDAPPALLY P.O.,
           EDAPPALLY VILLAGE, ERNAKULAM DISTRICT.
    2      KALYANI (MINOR)
           D/O.ABHILASH P.R., REP. BY NEXT FRIEND MOTHER
           REJANI.
    3      RAMACHANDRAN NAIR
           F/O.LATE ABHILASH P.R., -DO- -DO-
           BY ADVS.
           SRI.P.V.BABY
           SRI.A.N.SANTHOSH

RESPONDENTS/RESPONDENTS 1 TO 3:

    1      MICHEAL
           VALIYA VEEDU, MARARIKULAM SOUTH, ALAPPUZHA
           688549.
    2      JITHENDRANATH SINGH
           S/O.THANKAPPAN NAIR, THAKIDIVELIYIL HOUSE,EAST
           OF RADIO STATION, PATHIRAPPALLY,ALAPPUZHA, 688
           521.
    3      HDFC ERGO GENERAL INSURANCE CO.LTD
           NEAR SARAF HOSPITAL, PALLIMUKKU, COCHIN 682
           016.
           BY ADV SRI.K.B.RAMANAND


THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.02.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA NO.1188 OF 2012

                                   2


                            JUDGMENT

This appeal is impelled against the Award of the Motor

Accidents Claims Tribunal, Ernakulam ('Tribunal' for short) in

OP(MV) No. 2217/2009.

2. The claimants are the legal heirs of Abhilash, who

unfortunately died in a road accident on 28.04.2009 - while

he was riding a two wheeler and being hit by two other

offending vehicles. Abhilash was seriously injured and

succumbed to it soon thereafter; and the appellants filed the

afore Original Petition before the learned Tribunal, seeking

compensation of Rs.23,00,000/-, but which has been awarded

only to an extent of Rs.7,94,500/-. They impugn it on that

ground.

3. Sri.A.N.Santhosh - learned counsel appearing for

the appellants, pointed out that the primary reason why the

compensation awarded by the Tribunal is so low is because, it

has adopted the notional income of the deceased to be

Rs.5,000/-, when, going by Ramachandrappa v. Manager,

Royal Sundaram Alliance Insurance Company Ltd. :

[(2011) 13 SCC 236], it ought to have been Rs.7,000/-

even in the case of a person with unascertainable income in

the year 2009. He added that, in fact, the income of the MACA NO.1188 OF 2012

deceased has been properly proved through Ext.A10 - Salary

Certificate, in which it has recorded it as Rs.9,000/- per

month. He then pointed out that the compensation awarded

by the Tribunal under the heads 'Funeral Expenses', 'Loss of

Estate' and 'Loss of Consortium' is inadequate because, in

National Insurance Company Ltd. v. Pranay Sethi

[2017(4) KLT 6621], the Honourable Supreme Court has

held that compensation under the first two of the afore it

ought to be a minimum of Rs.15,000/- each; and

Rs.40,000/- each to the claimants under the third head. He

thus prayed this appeal be allowed.

4. Smt.Dhanya Babu - learned counsel appearing for

the Insurance Company, conceded that, as per

Ramachandrappa (supra), the minimum income to be taken

for the deceased should have been Rs.7,000/- per month;

but argued that the Tribunal was completely without error in

having disregarded Ext.A10 - Salary Certificate, since it was

not spoken to by any witness. She then argued that no

compensation for 'Pain and Suffering' and 'Love and Affection'

ought to have been granted, going by the judgment of the

Honourable Supreme Court in Pranay Sethi (Supra). MACA NO.1188 OF 2012

5. I have considered the afore submissions and have

also gone through the evidence on record.

6. On the question of compensation under the head

'Loss of Dependency', the contention of the appellants carry

great weight because, even Ext.A10, cannot be accepted for

the reason that it has not be spoken to by any witness. The

learned Tribunal then, ought to have adopted a minimum of

Rs.7,000/- as notional income of the deceased, as per

Ramachandrappa (supra). It also ought to have added 40%

as 'Future Prospects', and deducted one-third towards

personal expenses of the deceased. This not having been

done, the computation by the Tribunal cannot find my favour.

7. Similarly, in the case of 'Funeral Expenses' and

'Loss of Estate', the appellants are right in saying that

Rs.15,000/- each ought to have been granted, relying upon

Pranay Sethi (supra); while, under the head 'Loss of

Consortium' each of the appellants is entitled to Rs.40,000/-,

going by the said precedent.

8. That being so said, Smt.Dhanya Babu cannot be

faulted in asserting that the Tribunal could not have granted

compensation under the heads 'Pain and Suffering' and 'Love

and Affection', because it has been so declared in Pranay MACA NO.1188 OF 2012

Sethi (Supra), as well as in United India Insurance Co.Ltd

v. Satinder Kaur @ Satwinder Kaur [2020(3) KHC 760].

Resultantly, this appeal is partly allowed with the

following manner:

(a) The compensation for 'Loss of Dependency' is

revised to Rs.14,11,200/-, taking the notional income of the

deceased to be Rs.7,000/- per month and adding 40% 'Future

Prospects' and deducting one-third as the personal expenses

of the deceased.

(b) The compensation under the head 'Funeral Expenses'

is enhanced to Rs.15,000/-, from Rs.7,500/- awarded by the

Tribunal.

(c) The compensation under the head 'Loss of Estate'

is enhanced to Rs.15,000/-, from Rs.5,000/- awarded by the

Tribunal.

(d) The compensation for 'Loss of Consortium' is

enhanced to Rs.1,20,000/-, from Rs.25,000/- as awarded by

the Tribunal - at the rate of Rs.40,000/- each to the

appellants.

(e) The compensation under the heads 'Pain and

Suffering' and 'Love and Affection' are both deleted. MACA NO.1188 OF 2012

Consequently, the appellants will be at full liberty to

recover the compensation, as enhanced by this Court, from

the Insurance Company, along with interest at the rate of 8%

as awarded by the Tribunal, from the date of claim until it is

recovered. They will also be entitled to proportionate costs on

the enhanced amount, as ordered by the Tribunal.

Needless to say, all other findings of the learned

Tribunal, including the liberty given to the Insurance Company

to pay the claimants and recover it from the owner of the

offending vehicle, are left intact.

Sd/-DEVAN RAMACHANDRAN, JUDGE lsn