Kerala High Court
Nisha K.M vs Bajaj Alliance General Insurance Co. ... on 10 March, 2025
2025:KER:22259
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF MARCH 2025/19TH PHALGUNA, 1946
MACA NO. 4232 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 28.11.2013 IN OPMV
NO.806 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
PERUMBAVOOR.
APPELLANTS:
1 NISHA K.M.,
W/O. LATE HAMEED, CHERUVALLIKUDY HOUSE,
PARAPPURAM, PERUMBAVOOR.
2 PAREED C. (MINOR),
(D/B-25/02/2003), S/O. LATE HAMEED,
CHERUVALLIKUDY HOUSE, PARAPPURAM,
PERUMBAVOOR.
3 FARISHA (MINOR),
(D/B-01/07/2004), D/O. LATE HAMEED,
CHERUVALLIKUDY HOUSE, PARAPPURAM,
PERUMBAVOOR.
4 FARZANA (MINOR),
(D/B-27/01/2009), S/O. LATE HAMEED,
CHERUVALLIKUDY HOUSE, PARAPPURAM,
PERUMBAVOOR. (REPRESENTED BY THEIR MOTHER
SMT. NISHA K.M., W/O. HAMEED, CHERUVALLIKUDY
HOUSE, PARAPPURAM, PERUMBAVOOR).
BY ADV ELSON SIMON
M.A.C.A.No.4232 of 2018
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RESPONDENT:
BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.,
PEOPLES PARK, 3RD FLOOR,
GOVT. ARTS COLLEGE ROAD, COIMBATORE - 641 018.
BY ADV SRI.THOMAS M.JACOB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 10.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.4232 of 2018
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JUDGMENT
(Dated this the 10th day of March, 2025)
The petitioners in O.P.(M.V.) No.806/2010 on the file of the
Motor Accident Claims Tribunal, Perumbavoor is the appellant
herein. (For the purpose of convenience, the parties are hereafter
referred to as per their rank before the Tribunal)
2. The O.P. was filed under under Section 166 of the
Motor Vehicles Act, 1988, by the wife, children, and mother of the
deceased by name Hameed, who died in a motor vehicle accident
that occurred on 06.05.2010. According to them, on 06.05.2010, at
about 3.30 a.m., while the deceased was loading fish in a mini lorry,
a scorpio van driven by the 2 nd respondent in a rash and negligent
manner, hit on the mini lorry and as a result of which he sustained
serious injuries and later on he succumbed to the injuries, on the
next day.
3. The 1st respondent is the owner and 3rd
respondent is the insurer of the offending vehicle. According to the
petitioners, the accident occurred due to the negligence of the driver
of the offending vehicle. The quantum of compensation claimed in
the O.P. was Rs.15,50,000/- limited to Rs.10,00,000/-.
4. The insurance company filed a written statement,
admitting the accident as well as policy, but disputing the negligence
on the part of the driver of the offending vehicle.
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5. The evidence in the case consists of documentary
evidence Exts.A1 to A5 series. Ext.B1 is marked from the side of the
3rd respondent.
6. After evaluating the evidence on record, the
Tribunal found negligence on the part of the driver of the offending
vehicle, awarded a total compensation of Rs.7,76,000/- and directed
the insurer to pay the same.
7. Aggrieved by the quantum of compensation
awarded by the Tribunal, the petitioners preferred this appeal.
8. 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.Elson Simon, the learned Counsel
appearing for the petitioners/appellants, and Sri.Thomas M Jacob,
the learned Standing Counsel for the 3rd respondent.
10. The Point: In this case the accident as well as valid
policy of the offending vehicle are admitted. One of the contentions
raised by the learned counsel for the petitioners is regarding the
income of the deceased as fixed by the Tribunal. According to him,
the deceased was working as loading and unloading worker, earning
Rs.8,500/- per month, but the Tribunal fixed his monthly income at
Rs.4,000/-.The learned counsel for the insurer would argue that the
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income fixed by the tribunal is reasonable.
11. As per the dictum laid down by the Hon'ble
Supreme Court in the decision in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC
236], the notional income of a coolie, during the year 2010 will come
to Rs.7,500/-. Since the petitioners could not prove the job or income
of the deceased, as claimed in the OP, in the light of the dictum laid
down by the Hon'ble Supreme Court in Ramachandrappa (supra),
his notional income is liable to be fixed as that of a coolie, at
Rs.7,500/-.
12. On the date of accident, the deceased was aged 38
years. Therefore, 40% of the monthly income is liable to be added
towards future prospects, as held in the decision in National
Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] and the
multiplier to be applied is 15, as held in Sarla Verma v. Delhi
Transport Corporation, (2009) 6 SCC 121. Since the deceased was
married who left behind 4 dependents, towards personal and living
expense, 1/4 of the income is liable to be deducted, as held in Sarla
Verma (supra). In the above circumstances, the loss of dependency
will come to Rs.14,17,500/-.
13. The Tribunal has awarded Rs.2,500/- towards loss
of estate, Rs.25,000/- towards funeral expenses, Rs.1,00,000/-
towards loss of consortium and Rs.1,00,000/- towards love and
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affection. In the light of the decision in Pranay Sethi (supra), the
appellants are entitled to get a consolidated sum of Rs.15,000/-
towards loss of estate, Rs.15,000/- towards funeral expenses, and the
dependents (parents, children and spouse) are entitled to get a sum
of Rs.40,000/- each towards loss of consortium, with an increase of
10% in every three years. Therefore, towards loss of estate and
funeral expense they are entitled to get a sum of Rs.18,150/- each.
Towards loss of consortium, petitioners together are entitled to get a
sum of Rs. 1,93,600/- (48,400 x 4).
14. Since compensation for loss of consortium was
given, further compensation 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
compensation awarded towards love and affection is to be deducted.
15. Towards the head 'pain and sufferings', the
Tribunal has awarded Rs.5,000/-, which according to the learned
counsel for the petitioners, is on the lower side. The deceased died in
this case on the next day of the accident. In the above
circumstances, I hold that the compensation awarded towards pain
and suffering is on the lower side, and hence, it is enhanced to
Rs.25,000/-.
16. No change is required, in the amounts awarded on
other heads, as the compensation awarded on those heads appears
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to be just and reasonable.
17. Therefore, the petitioners/appellants are entitled
to get a total compensation of Rs.16,75,900/-, as modified and
recalculated above and given in the table below, for easy reference:
Sl.
No Head of Claim Amount awarded Amount Awarded
. by Tribunal (in in Appeal (in Rs.)
Rs.)
1 Transport to hospital 3,000/- 3,000/-
2 Damage to clothes etc. 500/- 500/-
3 Funeral expenses 25,000/- 18,150/-
4 Loss of estate 2,500/- 18,150/-
5 Pain and suffering 5,000/- 25,000/-
6 Dependency 5,40,000/- 14,17,500/-
7 Love and affection 1,00,000/- Nil
8 Loss of consortium 1,00,000/- 1,93,600/-
Total 7,76,000/- 16,75,900/-
Enhanced Rs. 8,99,900/-
18. In the result, this Appeal is allowed in part, and
the 3rd respondent is directed to deposit a total sum of
Rs.16,75,900/- (Rupees Sixteen lakhs seventy five thousand and nine
hundred Only), less the amount already deposited, if any, along with
interest @ 8% per annum from the date of the petition till
realisation/deposit, excluding interest for a period of 1742 days, the
period of delay, in filing the appeal, with proportionate costs, within
a period of two months from today.
19. On depositing the aforesaid amount, the Tribunal
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shall disburse the entire amount to the petitioners, in the ratio fixed
by the Tribunal, excluding court fee payable, if any, without delay, as
per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
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