Kerala High Court
Vadakkekara Shyamala vs New India Assurance Company Ltd on 20 January, 2025
MACA.692/2018
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2025:KER:5046
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
MACA NO. 692 OF 2018
OPMV NO.627 OF 2015 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL , TALIPARAMBA
APPELLANTS/PETITIONERS
1 VADAKKEKARA SHYAMALA,
AGED 54 YEARS, W/O SREEDHARAN.
2 MALAVIKA SHAJI (MINOR)
AGED 9 YEARS, D/O LATE. SREEKALA.
3 ANAMIKA SHAJI (MINOR)
AGED 4 YEARS, D/O LATE. SREEKALA.
(APPELLANTS 2 AND 3 ARE MINORS REPRESENTED BY NEXT
FRIEND AND GRAND MOTHER, THE 1ST APPELLANT
VADAKKEKARA SHYAMALA)ALL ARE RESIDING AT KANNOTH
HOUSE, KELOTH, P.O PAYYANNUR,KANNUR DISTRICT)
BY ADV SRI.M.V.AMARESAN
RESPONDENT/RESPONDENT NO.3
NEW INDIA ASSURANCE COMPANY LTD
SOUTH BAZAR, TEMPLE ROAD, PAYYANNUR,PIN.670307.
BY ADV SRI.N.S.MOHAMMED USMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 20.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA.692/2018
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JUDGMENT
Dated this the 20th day of January, 2025
The petitioners in OP(MV).627/2015 on the file of the Motor
Accidents Claims Tribunal, Taliparamba are the appellants herein. They
are the mother and minor children of deceased Sreekala, who died in a
motor vehicle accident that occurred on 11.7.2010. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before
the Tribunal)
2. According to the petitioners, while the deceased was travelling in
a motor cycle bearing registration Number KL-13E- 2260 from Vengara
to Payyannur, ridden by the 2nd respondent, in a rash and negligent
manner, the deceased was thrown out from the motor cycle and as a
result of which she sustained serious injuries and she succumbed to the
injuries. 1st respondent is the owner, 2nd respondent is the rider and 3rd
respondent is the insurer of the motor cycle.
3. The 3rd respondent/insurer filed a written statement denying the
negligence on the part of the 2nd respondent.
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4. The evidence in the case consists of the oral testimony of PW1 and
documentary evidence Exts.A1 to A12. No evidence was adduced by the
respondents.
5. After evaluating the evidence on record, the Tribunal awarded a
total compensation of Rs.7,98,000/-.
6. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioners preferred this appeal.
7. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the
Tribunal is just and reasonable?
8. Heard Sri. M.V. Amaresan, the learned Counsel appearing for the
appellants, and Sri.N.S. Mohammed Usman, learned Standing Counsel for the
3rd respondent.
9. The Point: One of the contentions raised by the learned counsel for
the petitioners is that the income of the deceased fixed by the Tribunal at
Rs.4,000/- is on the lower side. In the OP, the petitioners claimed that the
deceased was a Tailor by profession, earning Rs.6,000/- per month. However,
the petitioner failed to prove the job as well as income as claimed in the
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petition and as such the Tribunal fixed the notional income of the deceased at
Rs.4,000/-. As argued by the learned counsel for the petitioners, as per the
decision of the Hon'ble Supreme Court in Ramachandrappa v.
Manager, Royal Sundaram Alliance [(2011) 13 SCC 236], the notional
income of a Coolie during the year 2010 will come to Rs.7,500/-. In the
above circumstances, the notional income of the deceased is liable to be
fixed at Rs.7,500/-.
10. Since, on the date of accident, the deceased was aged 29 years,
40% of her 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], and the multiplier to be applied is 17.
11. Since the deceased had 3 dependents, 1/3 of her income is to be
deducted towards personal and living expense, 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.14,28,000/-.
12. The Tribunal has awarded Rs.25,000/- towards funeral
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expenses, another Rs.25,000/- towards loss of estate, Rs.1,00,000/-
towards loss of consortium and another Rs. 1,00,000/- towards love and
affection. As per the dictum laid down in Pranay Sethi (supra), the
petitioners are entitled to get a consolidated sum of Rs.15,000/- towards
loss of estate, Rs.15,000/- towards funeral expenses, Rs.40,000/- each
towards loss of consortium, with an increase of 10% in every three
years. Therefore, the petitioners are entitled for Rs.18,150/- towards
loss of estate, another Rs.18,150/- towards funeral expense and towards
loss of consortium Rs.1,45,200/- (48,400 x 3).
13. Since compensation is awarded on the head loss of
consortium, they are not entitled to get any further compensation on the
head 'love and affection', 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.1,00,000/- awarded on the head 'love
and affection' is to be deducted. Compensation awarded on the head
funeral expense and loss of estate has to be modified accordingly.
14. It appears that no compensation was awarded by the Tribunal on
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the head 'pain and sufferings', Hence, I hold that Rs.25,000/-,will be a
reasonable compensation towards pain and suffering.
15. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and
reasonable.
16. Therefore, the petitioner/appellant is entitled to get a total
compensation of Rs.16,40,300/-, as modified and recalculated above and
given in the table below, for easy reference:
Sl. Head of claim Amount awarded by the The amount given
No. Tribunal(Rs) in appeal (Rs.)
1 Transport to hospital 3,000/- 3,000/-
2 Damage to clothing and articles 1,000/- 1,000/-
3 Medical/bystander's expenses 1800 1,800/-
4 Funeral expenses 25,000/- 18,150/-
5 Loss of estate 25,000/- 18,150/-
6 Pain and suffering Nil 25,000/-
7 Loss of dependency 5,44,000/- 14,28,000/-
8 Loss of consortium 1,00,000/- 1,45,200/-
9 Compensation for love and affection 1,00,000/- Nil
Total 7,98,000/- 16,40,300/-
Amount enhanced Rs.8,42,300/-
17. In the result, this Appeal is allowed in part, and the 3rd respondent
is directed to deposit a total compensation of Rs,16,40,300/- (Rupees sixteen
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lakhs forty thousand and three hundred only) less the amount already
deposited, if any, along with interest rate ordered by the Tribunal, from the
date of the petition till realisation, excluding interest for a period of 249 days,
the period of delay in filing the appeal, with proportionate costs, within a
period of two months from today. (Interest for the enhanced amount is
limited to 8%).
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
sou.
