Kerala High Court
Shriram General Insurance Co.Ltd vs P.A.Mathew @ Thankachan on 6 January, 2025
2025:KER:274
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
MACA NO. 3495 OF 2016
AGAINST THE AWARD DATED 06.05.2016 IN OP(MV) NO.1152 OF 2011
OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-III,
PATHANAMTHITTA
APPELLANT/3RD RESPONDENT :-
SHRIRAM GENERAL INSURANCE CO.LTD
REP. BY IT'S LEGAL OFFICER
SHRIRAM GENERAL INSURANCE CO.LTD., ERNAKULAM
BY ADV JOHN JOSEPH VETTIKAD
RESPONDENTS/CLAIMANTS :-
1 P.A.MATHEW @ THANKACHAN
AGED 55 YEARS, S/O. THOMAS
ABRAHAM,PARAYILPURAYIDATHIL, THYMARAVUMKARA MURI,
KUTTOOR VILLAGE, THIRUVALLA TALUKPIN-689551
2 SUSAN MATHEW @ SUSAN, AGED 53 YEARS,
S/O. P.A.MATHEW @ THANKACHAN,
PARAYLPURAYIDATHIL, OTHARA WEST PO.,689551
3 JEENA MATHEW @ JEENA
AGED 28 D/O. P.A.MATHEW @
TRHANAKACHAN,PARAYLPURAYIDATHIL,
PATHANAMTHITTA DISTRICT
OTHARA WEST PO., 689551
4 JINSU MATHEW @ JINSU
AGED 20 D/O. P.A.MATHEW @THANKACHAN,
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PARAYLPURAYIDATHIL, PATHANAMTHITTA DISTRICT.
OTHARA WEST PO., 689551
BY ADV SRI.T.R.HARIKUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 06.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 06th day of January, 2025
The 3rd respondent in the OP (MV).No.1152 of 2011 on the file of
the Motor Accidents Claims Tribunal-III, Pathanamthitta is the appellant and
the petitioners therein are the respondents herein. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before the
Tribunal)
2. The petitioners are the parents and unmarried sisters of deceased
by name Jibin P Mathew. He was aged 24 years at the time of accident on
30.09.2010 and was studying in the Oxford Polytechnic, Bangalore for the
course Electronics Instrumentation and Control. According to them, on
30.09.2010, at about 02.45 p.m. while the deceased was riding the motorcycle
having Reg.Number KL-03-M-3268, the bus bearing Registration No. KL-13-
H-576 driven by the 2nd respondent respondent in a rash and negligent manner
dashed against the motorcycle and as a result of which he sustained serious
injuries and later on he succumbed to the injuries, while under treatment.
3. The 1st respondent is the owner, 2nd respondent is the driver and
3rd respondent is the insurer of the offending vehicle. According to the
claimants, the accident occurred due to the negligence of the driver of the
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offending vehicle. Therefore, they filed the OP claiming a compensation of
Rs.38,91,000/-.
4. The 1st and 2nd respondent remained ex-parte. The 3rd
respondent/insurer filed a written statement, admitting the policy and disputing
the negligence on the part of the driver of the offending vehicle. It was further
contended that the accident occurred due to the negligence of the deceased.
5. The evidence in the case consists of documentary evidence
Exts.A1 to A19. No evidence was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal awarded a
total compensation of Rs.28,67,000/-.
7. Challenging the quantum of compensation awarded by the
Tribunal, the appellant/insurance company preferred this appeal.
8. Now Now the point that arises for consideration is the
following:
Whether the quantum of compensation awarded by the Tribunal is
just and reasonable?
9. Heard Sri.John Joseph Vettika, the learned Standing Counsel
appearing for the appellant, and Sri.T.R.Harikumar, learned Counsel for the
respondent.
10. The Point: In this case the accident and valid policy of the
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offending vehicle are admitted. Though in the written statement the 3rd
respondent has contended that the accident occurred due to the negligence of
the deceased, at the time of arguments such a contention was not taken. The
petitioners produced Ext.A8, certified copy of the Final Report involved in the
crime registered against the driver of the offending vehicle, in respect to the
above accident. In the light of the above charge sheet, negligence on the part of
the driver of the offending vehicle stands proved. Therefore, the 3rd respondent,
being the insurer, is liable to pay the compensation, which is liable to be
awarded against the owner of the offending vehicle.
11. The main grievance of the appellant namely the 3rd respondent
in the OP is that the notional income of the deceased fixed by the tribunal is
excessive. At the time of the incident, the deceased was aged 24 years. The
incident was on 30.09.2010. The Tribunal fixed the income of the deceased as
Rs.12,000/- on the ground that, if the deceased was alive, he would have
obtained employment in a Government Department as a Supervisor or an
Overseer and assumed that Rs.12,000/- is the salary of such an employee. The
learned counsel for the appellant argued that, as per the dictum laid down in
Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC
236], notional income of a coolie during the year 2010 would come to only
Rs.7,500/- and therefore, he has no objection in fixing the notional income of
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the deceased at a sum little above Rs.7,500/-. Considering the fact that the
deceased was only a polytechnic student on the date of the accident and he had
no permanent job, I hold that his notional income fixed by the Tribunal at
Rs.12,000/- is on the higher side. Therefore, I hold that fixing the notional
income of the deceased at Rs.10,000/- will be reasonable, and hence I do
accordingly.
12. Since, on the date of accident, the deceased was aged 24 years,
40 % of his income is to be added towards future prospects, in the light of the
decision in National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680].
His age being 24, the multiplier to be applied is 18. Since he was a bachelor at
the time of death, ½ of the income is to be deducted towards his personal and
living expenses, in the light of the decision of Hon'ble Supreme Court in Sarla
Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]. Therefore, the
loss of dependency will come to Rs.15,12,000/-.
13. The Tribunal has not awarded any compensation towards
transport to hospital, damage to clothing and motorcycle. The petitioners have
not produced any additional evidence to prove the damage to motorcycle. In
the above circumstances, I hold that a sum of Rs.1,000/- can be awarded
towards transportation expense, and a sum of Rs.1,500/- can be awarded
towards damage to clothing.
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14. Towards funeral expenses, the tribunal awarded Rs.25,000/-.
Towards loss of estate a sum of Rs.50,000/- was awarded and towards loss of
love and affection a sum of Rs.2,00,000/- was awarded. In the light of the
dictum laid down in Pranay Sethi (supra), the appellants are entitled to get
only a consolidated sum of Rs.15,000/- towards loss of estate, Rs.15,000/-
towards funeral expenses, and Rs.40,000/- each towards loss of consortium,
with an increase of 10% for every three years. Therefore, the amount of
compensation on account of loss of estate and funeral expense will come to
Rs.18,150/- each.
15. In this case, the dependents of the deceased are his parents and
two unmarried sisters. The learned counsel for the petitioners would argue that
all of them are entitled to get compensation towards loss of consortium. On the
other hand, the learned counsel for the 3 rd respondent would argue that since
his parents are alive, the sisters could not be treated as the dependents of the
deceased. The petitioners produced Ext.A19 - attested copy of the judgment in
OP(Div) 789/07 on the file of the Family Court, Thiruvalla to prove that the
marriage between petitioners 1 and 2 was dissolved as per judgment dated
12.01.2008. Therefore, it was argued that, after the dissolution of the marriage
between the petitioners 1 and 2, the petitioners 3 and 4 were depending on the
elder brother, the deceased. It is true that no oral evidence was adduced in this
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case to substantiate the above argument. However, in the light of Ext.A19
judgment, it can be safely presumed that, after the divorce between the parents,
the unmarried sisters depended upon their elder brother. Therefore, I hold that
all the petitioners are entitled to get compensation towards loss of consortium
at the rate of Rs.40,000/- with 10% increase in every three years. Therefore,
towards loss of consortium, the petitioners are entitled to get a sum of
1,93,600/- (48,400x4).
16. The Tribunal has awarded a sum of Rs.2,00,000/- towards love
and affection. Since compensation for loss of consortium was given, further
amount for love and affection cannot be granted, in view of the decision in
New India Assurance Company Ltd. v. Somwati and Others, (2020) 9 SCC
644. Therefore, the above sum of Rs.2,00,000/- given towards love and
affection is to be deducted.
17. Towards the head 'pain and sufferings', no amount is seen
awarded. The learned counsel for the 3rd respondent would argue that since the
deceased died on the very same day, compensation towards pain and suffering
need not be awarded. However, the fact remains that the deceased had to
undergo pain and suffering of highest degree, before he succumbed to the
injuries. In the light of section 2 of Kerala Torts ( Miscellaneous Provisions)
Act, 1977, the legal representatives are entitled to claim compensation on
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account of the injuries sustained by the deceased and as such I hold that a sum
of Rs.25,000/- can be awarded towards pain and suffering.
18. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and reasonable.
19. Therefore, the petitioners/appellants are entitled to get a total
compensation of Rs.17,69,400/-, as modified and recalculated above and given
in the table below, for easy reference.
Sl. No. Head of claim Amount awarded by The amount given
the Tribunal(Rs) in appeal (Rs.)
1 Loss of earning Nil Nil
2 Partial loss of earnings Nil Nil
3 Transport to hospital Nil 1000
4 Extra nourishment Nil Nil
5 Damage to clothing and Nil 1,500
damage to motorcycle
6 Funeral expenses 25000 18150
7 Compensation for pain and suffering Nil 25000
8 Loss of dependency 25,92,000 15,12,000
9 Compensation for loss of bereavement Nil Nil
10 Loss of love and affection 2,00,000 Nil
11 Loss of estate 50,000 18,150
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12 Loss of expectancy of life Nil Nil
13 Loss of consortium Nil 1,93,600
Total 2867000 17,69,400
Amount reduced 10,97,600 (-)
20. In the result, this Appeal is allowed in part, and the 3rd
respondent is directed to deposit a total compensation of Rs.17,69,400/-
(Rupees Seventeen Lakhs Sixty Nine Thousand Four Hundred Only), less the
amount already deposited, if any, along with interest @ 9% per annum, from
the date of the petition till realisation, with proportionate costs, within a period
of two months from today.
21. On depositing the aforesaid amount, the Tribunal shall disburse
the entire amount to the petitioners, in the ratio fixed by the Tribunal,
excluding court fee payable, if any, without delay and as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
SMA
