Kerala High Court

Chandrika vs Cholamandalam M.S.General ... on 30 March, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                     MACA NO. 88 OF 2016
 AGAINST THE ORDER/JUDGMENT OPMV 336/2011 OF MOTOR ACCIDENT
                  CLAIMS TRIBUNAL, PALAKKAD
APPELLANTS/PETITIONERS:
    1    CHANDRIKA
         AGED 44 YEARS, W/O. RAJAMANI,347/5,
         VADAKARAPATHY VILLAGE, CHITTOOR TALUK, PALAKKAD.
    2    RAJU
         S/O. LATE RAMANKUTTY, CHERIYA THENAKULAM,
         KULUKAPARA, PALANIYAR PALAYAM POST, KOZHINJAMPARA
         VILLAGE, CHITOOR TALUK, PALAKKAD.
    3    SURESH R.
         S/O. LATE RAMANKUTTY, AGED 41 YEARS,
         CHERIYA THENAKULAM, KULUKAPARA,
         PALANIYAR PALAYAM POST, KOZHINJAMPARA VILLAGE,
         CHITOOR TALUK, PALAKKAD.
    4    UNNIR
         S/O. LATE RAMANKUTTY, AGED 37 YEARS, CHERIYA
         THENAKULAM, KULUKAPARA, PALANIYAR PALAYAM POST,
         KOZHINJAMPARA VILLAGE, CHITOOR TALUK, PALAKKAD.
    5    INDIRA
         W/O. MANIKANDAN, AGED 32 YEARS,
         PERUMPARACHALLA, VALIA VALAMPATHY VILLAGE,
         KOZHINJAMPARA POST, CHITOOR TALUK, PALAKKAD.
         BY ADVS.
         SRI.SUNIL NAIR PALAKKAT
         SRI.K.N.ABHILASH
         SRI.M.A.AHAMMAD SAHEER
         SMT.K.AASHA

RESPONDENT/3RD RESPONDENT:
         CHOLAMANDALAM M.S.GENERAL INSURANCE CO.LTD
         THRISSUR BRANCH OFFICE, THRISSUR DISTRICT.
         PIN - 680 001.
         SRI.P.JACOB MATHEW - SC


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.88 of 2016
                                :2:




                   DEVAN RAMACHANDRAN, J.
                =========================
                      M.A.C.A.No. 88 of 2016
               ==========================
               Dated this the 30th day of March, 2023

                             JUDGMENT

This matter is of the year 2016 and has not been admitted.

However, both sides are ad idem that it can be disposed of, after

being formally admitted, based on the undisputed evidence on

record, handed over by them across the Bar. I, therefore, admit

this appeal and proceed to dispose it of finally, with the consent of

both sides.

2. The siblings of Babu, who was unfortunately killed in a

road accident on 12.12.2009 - when the motorcycle he was riding,

was rammed into by the offending bus, driven in a rash and

negligent manner - have approached this Court impugning the

Award of the Motor Accidents Claims Tribunal, Palakkad (the

'Tribunal' for short), in OP(MV)No.336/2011, on the ground that

the compensation awarded therein is inadequate.

3. Sri. Sunil Nair Palakat - learned counsel for the appellants,

vehemently argued that the primary reason why the compensation

has been fixed low in favour of the appellants in this case is

because the learned Tribunal has adopted the notional income of

the deceased to be a mere Rs.21,000/- per year; while, it is on

evidence to show that he was earning Rs.10,000/- per month M.A.C.A.No.88 of 2016

working as a painter. He then argued that the learned Tribunal

ought to have granted sufficient amounts under the heads

"Damage to Clothing" and "Transportation", because, the deceased

had to be rushed to the hospital after the accident. He thus prayed

that this appeal be allowed.

4. In refutation, Sri.Mathews Jacob, learned Senior Counsel,

instructed by Smt.Preethi R. Nair - appearing for the appellant -

Insurance Company, submitted that, in the absence of any evidence

to prove the actual income or avocation of the deceased, the

Tribunal was wholly justified in having adopted his notional

income. He then argued that, in fact, more amounts have been

granted by the Tribunal under the heads "Funeral Expenses" than

allowed, while sums have been granted under the heads "Loss of

Love and Affection", which was unauthorised as per United India

Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur

[(2021) 11 SCC 780]. He thus prayed that this appeal be

dismissed, however, rectifying the afore defects.

5. I have evaluated the afore rival submissions on the

touchstone of various materials and evidence on record - copies of

which have been handed over across the Bar by the learned

counsel for the parties, with the express consent that they can be

acted upon by this Court without dispute.

6. I notice upfront that the learned Tribunal has awarded an M.A.C.A.No.88 of 2016

amount of Rs.3,36,000/- under the head "Loss of Amenities and

Conveniences of Life", when, in fact, it should have been awarded

under the head "Loss of Dependency". While computing the

compensation under this head, the Tribunal could have either

taken the income of the deceased as claimed, or proceeded to fix

the notional income, if there was no evidence to establish the

former. In this case, it is true that there is absolutely no evidence

to prove either that the deceased was a painter, or that he was

earning Rs.10,000/- per month. However, in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Company Ltd.

[(2011) 13 SCC 236], the Hon'ble Supreme Court has

standardised the figure to be adopted as notional income even in

the case of a "Coolie", or a person with an unascertainable income

in the year 2009 - when the accident occurred - to be Rs.7,000/-

per month. I certainly propose to take this figure and to add 40%

to it as future prospects, as per National Insurance Company

Ltd. v. Pranay Sethi [2017 (4) KLT 662]. The multiplier to be

adopted for computing the compensation under the head "Loss of

Dependency" is '17' as per Sarla Verma v. Delhi Transport

Corporation [2010 (2) KLT 802], because the deceased was only

29 years old at the time of the accident.

7. That said, there is force in the submissions of the learned

Senior Counsel that no amount could have been granted under the M.A.C.A.No.88 of 2016

head "Loss of Love and Affection", in view of Satinder Kaur @

Satwinder Kaur (supra); and that not more than Rs.15,000/-

could have been awarded under the head "Funeral Expenses", as

per Pranay Sethi (supra). However, an amount of Rs.15,000/-

ought to have been granted under the head "Loss of Estate"; and to

that extent, the impugned Award will require to be modified.

8. As far as the compensation under the heads "Damage to

Clothing" and "Transportation" is concerned, I notice that the

learned Tribunal has not awarded any amounts under these heads.

When there is evidence to show that the deceased had to be rushed

to a hospital after the accident, I have no doubt that an amount of

Rs.1,000/- under each of these heads would be the least apposite.

In the afore circumstances, this appeal is partly allowed in the

following manner:

(a) The compensation under the head "Loss of Amenities

and Convenience to Life" awarded by the Tribunal is

modified to be "Loss of Disability" and it is enhanced to

Rs.9,99,600/-, adopting the notional income of the

deceased to be Rs.7,000/- per month, with 40% future

prospects added and one half of the same deducted

towards his personal expenses, since he was a bachelor

at the time of the accident. The multiplier adopted for

this purpose is '17' as per Sarla Verma (supra).

(b) The compensation under the head "Loss of Estate" is M.A.C.A.No.88 of 2016

enhanced to Rs.15,000/- from Rs.5,000/-, as per Pranay

Sethi (supra).

Expenses" is reduced to Rs.15,000/-, from Rs.25,000/- as

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

(d) The compensation under the head "Loss of Love and

Affection" now awarded by the Tribunal is deleted.

(e) An amount of Rs.1,000/- is awarded under the head

"Damage to Clothing".

(f) An amount of Rs.1,000/- is additionally awarded under

the head "Transportation".

(g) In all other heads, the compensation awarded by the