Thanka vs The United India Insurance Co.Ltd
2023 Latest Caselaw 3341 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                       MACA NO. 4182 OF 2017
AGAINST THE JUDGMENT IN OPMV 2510/2009 OF MOTOR ACCIDENT
   CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES,
                             THRISSUR
APPELLANTS/PETITIONERS:

    1      THANKA
           W/O. LATE RAGHAVAN, HOUSE WIFE, 190,
           KURIYAKULAM HOUSE, P.0 MULLASSERY, THRISSUR
           DISTRICT.
    2      SAROJINI @ LAILA
           D/O. LATE RAGHAVAN, 190, KURIYAKULAM HOUSE,
           P.0 MULLASSERY, TRICHUR DISTRICT.
    3      AMBIKA
           D/O. LATE RAGHAVAN, 190, KURIYAKULAM HOUSE, P.0
           MULLASSERY, THRISSUR DISTRICT.
           BY ADVS.
           A.R.NIMOD
           M.A.AUGUSTINE


RESPONDENT/RESPONDENT NO.2:

           THE UNITED INDIA INSURANCE CO.LTD
           PARK HOUSE BLDG., 2ND FLOOR, ROUND NORTH,
           THRISSUR.
           BY ADV SRI.T.V.AJAYAKUMAR


        THIS   MOTOR   ACCIDENT   CLAIMS   APPEAL   HAVING   BEEN
FINALLY HEARD ON 24.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA 4182/2017
                               ..2..




                           JUDGMENT

The appellants are the mother and sisters of Manikandan,

who was unfortunately killed in a road accident on 09.08.2009,

when the motorcycle he was riding collided with the offending

motorcycle, ridden in a rash and negligent manner. He

sustained injuries, and succumbed to it soon; constraining the

appellants to file OP(MV)No.2510/2009 before the Motor

Accidents Claims Tribunal, Thrissur ('Tribunal' for short),

seeking compenstion of an amount of Rs.17,46,000/-, but

which has been allowed only to a sum of Rs.8,11,250/-. The

appellants call into question the adequacy of the compensation

awarded by the Tribunal.

2. Sri.M.A.Augustine - learned counsel for the

appellants, argued that the sole reason why compensation has

been fixed low by the Tribunal is because, it has adopted the

notional income of the deceased to be Rs.4,500/-, though he

was working as a Motor Mechanic, earning Rs.7,500/- at the

time of the accident. He then argued that the compenstion

awarded under the head 'Loss of Estate' is lower than what is

legally warranted; while, denial of compensation under the MACA 4182/2017 ..3..

head 'Loss of Consortium' is illegal. He thus prayed that this

appeal be allowed.

3. Sri.Ajay Kumar - learned Standing Counsel for the

Insurance Company, on the other hand, submitted that the

computations arrived at by the Tribunal are without error

because, the accident happened in the year 2009, when the

present day fiscal standards could not have been adopted. He,

however, pointed out that the learned Tribunal has granted

more than what is eligible under the head 'Funeral Expenses';

also Rs.1,00,000/- under the head 'Loss of Love and Affection';

and therefore, that no further amounts could have been

granted, either under the head 'Loss of Consortium' or any

other; asserting that the compensation under the head 'Pain

and Sufferings' was also impermissible. He thus prayed that

this appeal be dismissed.

4. I have considered the afore submissions on the

touchstone of the evidence and documents on record, which I

have evaluated carefully.

5. As rightly argued by Sri.M.A.Augustine, the learned

Tribunal has adopted the notional income of the deceased to

be a mere Rs.4,500/-. This is because, it has found, correctly,

that there is nothing in evidence to show or establish that the MACA 4182/2017 ..4..

deceased was, either a Motor Mechanic, or that he was earning

Rs.7,500/- as monthly income, as asserted. The Tribunal

certainly, therefore, could have only adopted a notional

income; however, while doing so, it ought to have certainly

been guided by the postulations in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Company

Ltd. [(2011) 13 SCC 236], which mandates that, even for a

'Coolie', or a person with unascertainable income, in the year

2009 - when the accident occurred - the minimum income to

be reckoned is Rs.7,000/- per month. Since, the deceased was

only 32 years at the time of accident, as per National Insur-

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

(SC)], only 40% of it ought to have been added as future

prospects; and thus adoption of 50% by the Tribunal in such

regard, is certainly a mistake.

6. However, Pranay Sethi (supra) has declared that, if

the deceased is survived by a widowed mother and two

dependent sisters, the amount to be deducted towards his

personal expenses can only be treated as being one third. In

the case at hand, it is uncontroverted that appellants 2 and 3

are unmarried and that both were depending upon the

deceased at the time of the accident, even financially. I, MACA 4182/2017 ..5..

therefore, have no doubt that, being guided by Pranay Sethi

(supra), the amount of personal expenses to be deducted from

the notional income of the deceased can only be one third and

not more.

7. That said, Pranay Sethi (supra) authorises a

minimum amount of Rs.15,000/- under the head 'Loss of

Estate', but orders that the compensation under the head

'Funeral Expenses' also be confined to such figure.

8. Further in United India Insurance Company Ltd.

v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780],

the Hon'ble Supreme Court has stipulated that no amounts

under the head 'Pain and Sufferings' be awarded, when

compensation for 'Loss of Depedency' is adequately taken care

of.

In the afore circumstances, this appeal is partly allowed

in the following manner:

a. The compensation under the head 'Loss of

Dependency' is enhanced to Rs.12,54,400/-, reckoning the

notional income of the deceased to be Rs.7,000/-, with 40%

future prospects added to it and one third deducted towards

his personal expenses, as per Pranay Sethi (supra).

b. The compensation under the head 'Loss of Estate' is MACA 4182/2017 ..6..

enhanced to Rs.15,000/-, from Rs.10,000/- as awarded by the

Tribunal, as per Pranay Sethi (supra).

c. The compensation under the head 'Funeral

Expenses' is reduced to Rs.15,000/-, from Rs.25,000/- awarded

by the Tribunal, as per Pranay Sethi (supra).

d. The compensation under the head 'Pain and

Sufferings' of Rs.10,000/- awarded by the Tribunal is deleted,

as per Satwinder Kaur (supra).

e. The compensation under the head 'Loss of Love

and Affection' granted by the Tribunal is deleted; and, in its

place, compensation under the head 'Loss of Consortium' is

awarded to a sum of Rs.40,000/- for the 1 st appellant - mother,

as per Pranay Sethi (supra).

In all other heads, the compensation awarded by the

Tribunal will remain unaltered.

Consequently, the appellant will be entitled to recover the

compensation, as enhanced by this Court, from the Insurance

Company, along with interest at the rate of 8% per annum,

(modifying the rate of interest 9% per annum as ordered by

the Tribunal, in view of the escalation granted by this Court),

from the date of claim until it is realised. The appellant will

also be entitled to proportionate costs as awarded by the MACA 4182/2017 ..7..

Tribunal on the enhanced amounts.

Needless to say, while calculating interest on the amount

enhanced by this Court, a period of 271 days - being the delay

in filing this Appeal - shall stand excluded.

In view of the afore, the amount as fixed above shall be

deposited by the Insurance Company before the learned

Tribunal, within a period of two months from the date of receipt

of a copy of this judgment.

Sd/-

DEVAN RAMACHANDRAN, JUDGE ACR