Kerala High Court
Reliance General Insurance Co. Ltd vs Rema on 5 April, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
MACA NO. 1670 OF 2018
AGAINST THE AWARD DATED 10.06.2016 IN OP(MV) NO.665 OF 2011 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD
APPELLANT/4TH RESPONDENT:
RELIANCE GENERAL INSURANCE CO. LTD.
COCHIN, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL
OFFICE, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS/CLAIMANTS 1 TO 3:
1 REMA
W/O. LATE KRISHNAN, KIZHAKKETHARA,
KOTTEKKAD, PALAKKAD.
2 KIRAN
S/O. LATE KRISHNAN, KIZHAKKETHARA,
KOTTEKKAD, PALAKKAD.
3 KRIPA (MINOR)
DATE OF BIRTH 17.09.1998, D/O. LATE KRISHNAN,
KIZHAKKETHARA, KOTTEKKAD, PALAKKAD,
REPRESENTED BY GUARDIAN AND NEXT FRIEND MOTHER FIRST
RESPONDENT.
BY ADVS.
P.K.MOHANAN(PALAKKAD)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NOs.1670/2018
2
'C.R'
JUDGMENT
Dated this the 05th day of April, 2024
The appeal on hand is originated from an award passed by
Motor Accidents Claims Tribunal, Palakkad (for short, 'the
Tribunal') on 10.06.2016 in O.P(M.V) No.665/2011. The
appellant is the 4th respondent in the above Original Petition,
who is the insurer of the offending vehicle. Challenge is raised
mainly against the quantum of compensation stood awarded by
the Tribunal for the reason that it is exorbitant.
2. For the sake of convenience, the parties to this
appeal will hereinafter be referred to as petitioners 1 to 3 and
respondent No.4 in accordance with their status in the Original
Petition.
3. It is contended by the learned counsel that the victim
of the motor accident who died, was not having regular and
permanent employment and therefore, the Tribunal ought not
to have added 30% to the monthly income in consideration of
loss of future prospects. According to her, the age of the
deceased was not proved by petitioners before the Tribunal and
therefore, the multiplier of 13 adopted by the Tribunal and
addition of 30% to the monthly income in consideration of loss
of future prospects are without any basis. According to her, the
Tribunal ought to have deducted 1/3rd , instead of 1/4th towards
the expenses the victim would have spend, had he been alive.
According to her, Tribunal went wrong in awarding `1,00,000/-
as compensation towards loss of consortium only in favour of
the spouse of the deceased, ignoring the fact that minor
children, two in numbers and the mother also survived him
and are entitled to get compensation under that head.
According to her, `25,000/- each was awarded by the Tribunal
towards loss of estate and funeral expenses which are excess
than `15,000/-, the sum petitioners are legally entitled to
receive. According to her, `25,000/- and `1,00,000/-
respectively were also awarded by the Tribunal as
compensation towards pain and suffering and loss of love and
affection, which they are not entitled to receive. Accordingly,
the compensation stood awarded by the Tribunal under various
heads is sought to be modified and awarded in favour of the
petitioners, afresh.
4. Challenge was not raised against the monthly income
fixed. Salary certificate was produced by the petitioners and
marked in evidence as Ext.A9 through the HR of a firm namely
United Breweries examined as PW1. Thus, relying on the oral
evidence of PW1 and Ext.A9, `12,965/- was fixed as the
monthly income of the deceased. It being reasonable, is
maintained.
5. It is true that an authentic document to prove the age
of the deceased was not marked in evidence. Therefore, relying
on the postmortem certificate marked in evidence as Ext.A4,
the age of the deceased was taken by the Tribunal as 49 years.
Thus 13 was adopted as the multiplier. In that backdrop, the
Tribunal cannot be found fault with in adopting 13 as the
multiplier, it being appropriate to 49 years. The employer of
the deceased was examined as PW1 and he deposed that the
deceased was an employee of United Breweries. Evidence has
not come to the effect that the petitioner was employed in
United Breweries under a contract of employment. Therefore,
his employment can be considered as a permanent one and
having fixed salary. When viewed in the light of the dictum in
National Insurance Co.Ltd. V. Pranay Sethi and others
[2017 (4) KLT 662(SC)] a man employed permanently and
died untimely at his age above 40 years is entitled to have 25%
of the monthly income fixed, added to it in consideration of loss
of future prospects, while calculating the compensation
payable.
6. The deceased was survived by his wife, two children
and mother. The mother died during the pendency of the
Original Petition and based on the submission made that apart
from the petitioners already in the array, others are not there to
be brought on record as her legal representatives, that was
recorded.
7. The learned counsel for the 4th respondent advanced
an argument that in view of the death of the mother of the
deceased after raising a claim for compensation, compensation
for loss of consortium is not liable to be awarded in her favour.
An argument was also advanced that in view of the death of the
mother of the victim during pendency of the Original Petition,
the surviving family members can only be treated as three and
1/3rd alone can be deducted from the monthly income in
consideration of personal expenditure the deceased would have
met, had he been alive.
8. True that the mother of the deceased died during the
pendency of the Original Petition before the Tribunal. She
being alive at the relevant time when the cause of action for
raising a claim for compensation originated, undoubtedly
compensation towards loss of consortium is payable to her and
deduction for personal expenditure of the deceased can also be
applied, she being alive at the time when cause of action was
originated. The cause of action for the legal representatives to
raise a claim for compensation in the case on hand being the
death of the victim in the motor accident, the death of a legal
representative after filing of the Original Petition and during its
pendency, who may be the spouse, children and parents in their
relationship with the victim are also to be reckoned while
considering the personal expenditure for livelihood, the victim
would have spent, had he been alive. The mother died in the
case on hand in the year 2015, whereas the Original Petition
seeking compensation was filed in the year 2011. The
impugned award was passed on 10.06.2016. For the reason that
the award was passed belatedly, the petitioners shall not be
deprived of just and reasonable compensation which they are
entitled to get as on the date when the cause of action was
originated. Compensation has to be calculated based on the
status of the case on the date, when the cause of action was
originated. In the case on hand, the cause of action for raising a
claim for compensation is nothing but the death of the victim in
the motor accident in question.
9. In the above circumstances, 1/4th is deducted in
consideration of the personal expenditure of the victim, since
four family members survived him at the relevant time of filing
of the Original Petition. Since the Tribunal arrived at
`22,52,834/- as compensation in a calculation based on
incorrect factors, this Court finds it appropriate to discard the
compensation stood awarded and to calculate it afresh. In the
absence of a challenge raised against the monthly income fixed,
`12,965/- itself is taken into consideration. 25% is added to it in
consideration of loss of future prospects and thus, `16,206/-
(`12,965/- + 25% of `12,965/-) is arrived at. When
compensation is calculated afresh applying the correct factors,
`18,96,102/- (`16,206/- x 12 x 13 x ¾) is arrived at and that is
payable as compensation towards loss of dependency in favour
of the petitioners.
10. `15,000/- each is also awarded as compensation
towards funeral expenses and loss of estate and `1,60,000/-
(`40,000/- x 4) towards loss of consortium in favour of the
petitioners who are four in numbers. Apart from the above,
`1,500/- and `1,000/- respectively are also awarded as
compensation towards transportation expenses and damages to
clothing. Thus a sum of `20,88,602/- (`18,96,102/- +
`1,60,000/- + `15,000/- + `15,000/- + `1,500/- + `1,000/-)
(Rupees twenty lakh eighty eight thousand six hundred and two
only) is arrived at as the modified compensation in the fresh
calculation and that is payable to the petitioners with interest
accrued on it at the rate of 7.5% per annum from the date of
filing of the Original Petition till the date of realisation.
Proportionate costs is also ordered to be paid. 4 th respondent
being the insurer of the offending vehicle shall deposit the
compensation arrived at as above alongwith interest accrued on
it at the rate fixed and proportionate costs in favour of
petitioners 1 to 3, on themselves furnishing the particulars of
the accounts maintained by them with a bank. While
disbursing the amount, the Tribunal shall see that the
guidelines issued by this Court in Circular No.03/2019 dated
06.09.2019 are followed.
MACA is allowed accordingly.
Sd/-
MARY JOSEPH
JUDGE
JJ
