Kerala High Court
Roshini Somarajan vs The Divisional Manager on 24 February, 2025
M.A.C.A. No. 2231/2020 & 118/2022 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
MACA NO. 2231 OF 2020
AWARD DATED 03.03.2020 IN OP(MV) NO.88 OF 2017 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL - III, PATHANAMTHITTA
APPELLANT/3RD RESPONDENT IN OP(MV):
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY, DIVISIONAL OFFICE, KOLLAM,
REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD,
ERNAKULAM.
BY ADV SEBASTIAN VARGHESE(K/141/2000)
RESPONDENTS/PETITIONERS 1 TO 3 AND RESPONDENTS 1 AND 2:
1 ROSHINI SOMARAJAN
W/O. LATE SOMARAJAN, AGED 46 YEARS, KUTTIVILAYIL POOZHIKKADU,
KUDASSANADU P.O., ADDOR TALUK, 689 501, PATHANAMTHITTA
DISTRICT.
2 ATHIRA SOMARAJAN,
D/O. LATE SOMARAJAN, AGED 23 YEARS, KUTTIVILAYIL POOZHIKKADU,
KUDASSANADU P.O, ADDOR TALUK, 689 501, PATHANAMTHITTA
DISTRICT.
3 AKSHAYA SOMARAJAN,
D/O. LATE SOMARAJAN, AGED 18 YEARS, KUTTIVILAYIL POOZHIKKADU,
KUDASSANADU P.O., ADDOR TALUK - 689 501, PATHANAMTHITTA
DISTRICT.
4 RAJESH R.,
S/O. RAJAN ACHARI, THACHUVELIL KIZHAKKETHIL VEEDU,
ARATHIMUKKU, MUDIYOORKONAM P.O., PANDALAM - 689 516.
5 BIJU M.A.,
MULLACKAL HOUSE, MUDIYOORKONAM P.O., PANDALAM - 689 516.
M.A.C.A. No. 2231/2020 & 118/2022 :2:
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BY ADVS.
R1 TO R3 BY SRI.T.K.BIJU (MANJINIKARA)
SMT.ANNIE M.ABRAHAM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
21.02.2025, ALONG WITH MACA.118/2022, THE COURT ON 24.02.2025
DELIVERED THE FOLLOWING:
M.A.C.A. No. 2231/2020 & 118/2022 :3:
2025:KER:15096
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
MACA NO. 118 OF 2022
AWARD DATED 03.03.2020 IN OPMV NO.88 OF 2017 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL -III, PATHANAMTHITTA
APPELLANT/PETITIONERSIN THE OP(MV):
1 ROSHINI SOMARAJAN
AGED 46 YEARS
W/O.LATE SOMARAJAN, KUTTIVILAYIL, POOZHIKADU, KUDASSANADU
P.O., ADOOR TALUK, PATHANAMTHITTA DISTRICT.
2 ATHIRA SOMARAJAN
AGED 23 YEARS
D/O.LATE SOMARAJAN, KUTTIVILAYIL, POOZHIKADU, KUDASSANADU
P.O.,ADOOR TALUK, PATHANAMTHITTA DISTRICT.
3 AKSHAYA
AGED 18 YEARS
D/O.LATE SOMARAJAN, KUTTIVILAYIL, POOZHIKADU, KUDASSANADU
P.O., ADOOR TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.
T.K.BIJU (MANJINIKARA)
ANNIE M.ABRAHAM
RESPONDENT/S:
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE,
CHINNAKKADA P.O.,KOLLAM DISTRICT, PIN - 691 001.
BY ADV. SRI. SEBASTIAN VARGHESE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
21.02.2025, ALONG WITH MACA.2231/2020, THE COURT ON 24.02.2025
DELIVERED THE FOLLOWING:
M.A.C.A. No. 2231/2020 & 118/2022 :4:
2025:KER:15096
JOHNSON JOHN, J.
---------------------------------------------------------
M.A.C.A Nos. 2231 of 2020 &
118 of 2022
--------------------------------------------------------
Dated this the 24th day of February, 2025.
JUDGMENT
The 3rd respondent insurance company and the claim petitioners in
O.P.(MV) No. 88 of 2017 on the file of the Motor Accident Claims
Tribunal-III, Pathanamthitta filed the above appeals challenging the
quantum of compensation fixed by the Tribunal under various heads.
2. The claim petitioners are the legal heirs of the deceased
Somarajan, who died in a motor vehicle accident. According to the claim
petitioners, on 05.01.2016, while the deceased was walking through the
side of the road, autorickshaw driven by the 1 st respondent in a rash and
negligent manner caused to hit him and thereby, he sustained serious
injuries and subsequently, succumbed to his injuries while undergoing
treatment in the hospital on 08.01.2016. The 2 nd respondent is the
owner of the offending vehicle and the 3rd respondent is the insurer.
3. Before the Tribunal, Exhibits A1 to A11 were marked from the
side of the petitioners and no evidence adduced from the side of the
respondents
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4. Heard Sri. Sebastian Varghese, the learned counsel for the
appellant insurance company in M.A.C.A No. 2231 of 2020 and Sri. T.K.
Biju (Manjinikara), the learned counsel for the appellants/claim
petitioners in M.A.C.A No.118 of 2022.
5. The deceased was aged 51 years at the time of the accident
and he was working as an Offset Machine Operator. The learned counsel
for the appellants/claim petitioners argued that the Tribunal has not
stated any reason for not accepting Exhibit A9 salary certificate issued
by the Manager of St. Joseph Orphanage Press & Book Stall stating that
the deceased was drawing a salary of Rs.28,584/-. In the absence of any
serious dispute regarding the genuineness of Exhibit A9 salary certificate
and the occupation of the deceased, I find that the Tribunal is not
justified in fixing a notional income of Rs.20,000/- and I find that the
Tribunal ought to have accepted Exhibit A9, salary certificate, for fixing
the monthly income of the deceased at the time of the accident.
6. The learned counsel for the appellant insurance company
pointed out that the Tribunal deducted only one-fourth towards the
personal and living expenses of the deceased, in spite of the fact that
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there are only 3 dependents. As per the decision of the Honourable
Supreme Court in Sarla Varma v. Delhi Transport Corporation
[2010 (2) KLT 802 (SC)], the appropriate deduction towards personal
and living expenses of the deceased is one-third, when the number of
dependents is only 3.
7. Considering the age of the deceased, the Tribunal applied the
multiplier of 11 and both sides conceded that the correct multiplier
applicable is 11. The Tribunal also granted 10% addition towards future
prospects and the same is also not challenged. Thus, while reassessing
the compensation for loss of dependency as per the revised criteria, the
amount would come to Rs.27,66,931/-[(28584 + 10%) x 12 x 11 x 2/3].
The Tribunal has already granted Rs.21,78,000/- under this head.
Therefore, an additional compensation of Rs.5,88,931/- is granted to the
claim petitioners under this head.
8. The learned counsel for the appellants/claim petitioners argued
that the Tribunal has not granted loss of consortium separately to each
of the claim petitioners. In National Insurance Co. Ltd. v. Pranay
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Sethi [(2017) 16 SCC 680 = 2017 ACJ 2700 (SC)], the Hon'ble
Supreme Court held thus:
"...The conventional and traditional heads, needless to say,
cannot be determined on percentage basis because that would
not be an acceptable criterion. Unlike determination of income,
the said heads have to be quantified. Any quantification must
have a reasonable foundation. There can be no dispute over the
fact that price index, fall in bank interest, escalation of rates in
many a field have to be noticed. The court cannot remain
oblivious to the same. There has been a thumb rule in this
aspect. Otherwise, there will be extreme difficulty in
determination of the same and unless the thumb rule is applied,
there will be immense variation lacking any kind of consistency
as a consequence of which, the orders passed by the tribunals
and courts are likely to be unguided. Therefore, we think it
seemly to fix reasonable sums. It seems to us that reasonable
figures on conventional heads, namely, loss of estate, loss of
consortium and funeral expenses should be Rs 15,000, Rs
40,000 and Rs 15,000 respectively. ..."
In Shriram General Ins. Co. Ltd. v. Bhagat Singh Rawat [2023
KHC Online 7244], the Honourable Supreme Court considered the
question whether each of the dependents are separately entitled for
consortium and held that the compensation payable under the
conventional heads as per the decision in Pranay Sethi (supra) is in
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toto and each of the dependents are not entitled for a separate amount
towards loss of consortium and in view of the above legal position, I find
no reason to interfere with the finding of the Tribunal in this regard. I
find that the compensation granted by the Tribunal under the other
heads are reasonable and requires no interference.
9. In the result, M.A.C.A. No. 2231 of 2020 is dismissed and
M.A.C.A No. 118 of 2022 is allowed in part and the appellants/claim
petitioners are entitled to the enhanced compensation as given below:
Additional
amount
Compensation
granted by
Particulars awarded by the
this Court
Tribunal (Rs.)
(Rs.)
5,88,931/-
Loss of dependency 21,78,000/-
Total enhanced compensation
5,88,931/-
10. Thus, a total amount of Rs.5,88,931/- (Rupees Five Lakhs
Eighty Eight Thousand Nine Hundred and Thirty One only) is awarded as
enhanced compensation. The said amount shall carry interest at the rate
of 9% per annum from the date of the application till realization. The
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appellants/claim petitioners would also be entitled to proportionate costs
in the case. The claimants shall furnish the details of the bank account
to the insurance company for transfer of the amount.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
