Kerala High Court
Savitha vs The New India Assurance Co. Ltd on 27 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
MACA NO. 1703 OF 2017
AGAINST THE AWARD DATED 20.12.2016 IN O.P(M.V) NO.403/2014 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL, VATAKARA
APPELLANTS/PETITIONERS:
1 SAVITHA,
AGED 33 YEARS
W/O LATE SHAGESH,
AGED 33 YEARS,
VALLAMPRATH HOUSE,PUTHUPPANAM,
SIDDHANDAPURAM,VATAKARA-673 105.
2 ASWATHY,
D/O.LATE SHAGESH,AGED 9 YEARS,
MINOR,REP.BY IST PETITIONER MOTHER,VALLAMPRATH
HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105.
3 ASWABTGM
S/O.LATE SHAGESH,AGED 4 YEARS,
MINOR,REP.BY 1ST PETITIONER MOTHER,VALLAMPRATH
HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105.
4 MUKUNDAN
F/O LATE SHAGESH,AGED 61 YEARS,VALLAMPRATH
HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105.
5 SARADA
M/O LATE SHAGESH,AGED 51 YEARS,VALLAMPRATH
HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105.
BY ADV
SRI.ZUBAIR PULIKKOOL
RESPONDENT/RESPONDENT:
THE NEW INDIA ASSURANCE CO. LTD.,
KANNOOR ROAD,CALICUT,PIN-673001.
BY ADVS.
SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD.
LAL K JOSEPH
SURESH SUKUMAR(K/634/1997)
ANZIL SALIM(K/000447/2018)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
JUDGMENT
Dated this the 27th day of October 2023.
The appeal on hand is directed against an award passed by
the Motor Accidents Claims Tribunal, Vatakara (for short, 'the
Tribunal') in O.P.(M.V) No.403 of 2014.
2. For the sake of convenience, the parties to this
appeal will hereinafter be referred to as petitioners 1 to 5 and
respondents 1 to 3 in accordance with their status in the
Original Petition.
3. As per the averments in the Original Petition, one
Mr.Shagesh aged 34 years while travelling in his Motorcycle
bearing Registration No.KL-19-AA-1151 through Kalaripadi
National Highway was hit by a Lorry bearing Registration
No.KL-57-H-1558, which was driven by its driver in a rash and
negligent manner. He sustained serious injuries and
succumbed to those at the spot of accident itself. Alleging that
the motor accident was occurred due to the rash and negligent
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driving of the Lorry by its driver and claiming a total sum of
`1,70,000/- as compensation, the above Original Petition was
filed.
4. All respondents were served with notice but 2 nd
respondent remained absent and therefore was declared as ex
parte. 1st and 3rd respondent filed written statement raising
identical contentions which includes that the motor accident
was occurred due to negligence of Mr.Shagesh himself and not
due to negligence of the 2nd respondent. Compensation claimed
is also disputed for its exorbitant nature. Issuance of a policy in
respect of Lorry bearing Registration No.KL-57-H-1558,
covering the date of accident was admitted.
5. The quantum of compensation stood awarded by the
Tribunal is under challenge for the reasons mainly that
adequate monthly income was not considered for the purpose
of arriving at the compensation. Contention secondly raised was
that though the petitioners are entitled to get compensation
under the conventional heads as directed by the Apex Court
in National Insurance Company Ltd. v. Pranay Sethi and
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Others [2017 (4) KLT 662 (SC)], the Tribunal failed to award
those in favour of them.
6. The learned counsel for the 3rd respondent has raised
a contention that 50% was added to the monthly income of the
victim by the Tribunal in consideration of loss of future
prospects in the place of 40%, the addition actually required.
The learned counsel has also pointed out that the petitioners
being legal representatives of the victim who died in the motor
accident are not entitled to get compensation towards pain and
suffering and loss of love and affection already stood awarded
by the Tribunal.
7. In the backdrop of the rival contentions, this Court
has gone into the evidence on record. It is found therefrom that
evidence is not forthcoming to establish the job as well as
monthly income of the deceased at the relevant time of the
motor accident. As per the pleadings of the petitioners in the
Original Petition, the victim of the motor accident was a skilled
painter earning `30,000/- monthly. It is noticed from the
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impugned award that the Tribunal has taken `5,000/- as the
monthly income of the victim on a notional basis. It is
contended by the learned counsel that the deceased was
survived by five members including his wife, two minor
children and parents. The surviving members being five in
numbers, the Tribunal is totally unjustified in fixing the
monthly income as `5,000/- and calculating compensation on
its basis. He canvassed for re-fixation of the monthly income as
`12,000/-. Neeta W/o Kallappa Kadolkar and Others Vs.
Divisional Manager, MSRTC, Kolhapur [2015 KHC 4027] was
also relied on by him to fortify his argument.
8. It is noticed by this Court that the deceased was
survived by five members but no evidence was adduced to
establish that the deceased was the only son of his parents and
they were residing with him at the relevant time of the motor
accident. Nevertheless, the monthly income fixed notionally
appears to this Court too low, since it was considered with
reference to the year 2014, the year in which the motor accident
in question was occurred. Therefore, this Court is inclined to
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enhance the monthly income to `11,000/- and do accordingly.
As rightly pointed out by the learned counsel for the 3 rd
respondent, 50% added by the Tribunal in consideration of loss
of future prospects being incorrect, is replaced by 40%.
9. The Constitution Bench of the Apex Court has held in
National Insurance Company Ltd. v. Pranay Sethi and Others [2017
(4) KLT 662 (SC)] that the petitioners are entitled to get
`16,500/- each as compensation towards loss of estate and
funeral expenses and `44,000/- for loss of consortium to the
surviving members who would come within the categories of
spouse, children and parents.
10. This Court has already decided to enhance and re-fix
the monthly income to `11,000/- and to add 40% to that in
consideration of future prospects. Thus `15,400/- (`11,000/- +
40% of `11,000/-) is arrived at.
11. The deceased being survived by five members and
therefore, ¼th needs to be deducted in consideration of
personal expenditure liable to be met with by him, had he been
alive. When compensation for loss of dependency is calculated
MACA NO. 1703 OF 2017
based on the modified factors as above, `22,17,600/-
(`15,400/- x 12 x 16 x ¾) is arrived at. `11,52,000/- stood
awarded by the Tribunal when adjusted against, the petitioners
will get `10,65,600/- (`22,17,600/- - `11,52,000/-) as
additional compensation under that head.
12. In the case on hand, the surviving members includes
the wife, two minor children and parents of the deceased.
Therefore each of them are entitled to get `44,000/- as
compensation towards loss of consortium and thus
`2,20,000/- (`44,000/- x 5) is arrived at. `1,00,000/- stood
awarded by the Tribunal when adjusted against the sum now
arrived at, the petitioners will get `1,20,000/- (`2,20,000/- -
`1,00,000/-) as additional compensation towards loss of
consortium.
13. The Tribunal has awarded `25,000/- each as
compensation towards funeral expenses and loss of estate,
against the entitlement of the petitioners for `16,500/- each.
Therefore, `8,500/- each stood awarded by the Tribunal in
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excess need to be deducted from the total additional
compensation arrived at as payable.
14. It is settled position that the petitioners, the legal
representatives of the victim who died in the motor accident are
not entitled to get compensation towards loss of love and
affection and pain and suffering. Therefore, `1,15,000/-
(`1,00,000/- + `15,000/-) stood awarded by the Tribunal as
compensation under the above heads is deducted from the total
sum arrived at as additional compensation.
15. In the above manner of calculation of compensation
afresh, the petitioners will get `10,53,600/- (Rupees Ten Lakh
Fifty three thousand six hundred only) [(`10,65,600/- +
`1,20,000/-) - (`8,500/- + `8,500/- + `1,15,000/-)] as total
additional compensation. It will also carry interest at the rate of
7.5% per annum from the date of filing of the Original Petition
till the date of realisation. The 3 rd respondent shall pay the
above amount within two months from the date of receipt of
a certified copy of this judgment, in accordance with the
MACA NO. 1703 OF 2017
directions issued by this Court in Circular No.03/2019 dated
06.09.2019.
M.A.C.A stands allowed accordingly.
Sd/-
MARY JOSEPH
JUDGE
JJ
