Kerala High Court

Ramseena vs The Oriental Insurance Company Limited on 13 March, 2025

                                                  2025:KER:25203


           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

          THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

  THURSDAY, THE 13TH DAY OF MARCH 2025/22ND PHALGUNA, 1946

                     MACA NO. 4079 OF 2018

        AGAINST THE ORDER/JUDGMENT DATED 18.06.2018 IN OPMV

NO.85 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA

APPELLANTS:

    1      RAMSEENA,
           AGED 27 YEARS,
           D/O.LATE MOIDU, PURANGELERI PUTHOORVATTAM HOUSE,
           BALUSSERY, THAMARASSERY THALUK,
           KOZHIKODE DISTRICT.

    2      NUSRATH.E.P,
           AGED 25 YEARS,
           D/O.LATE MOIDU, M.M.PARAMBATH HOUSE,
           EMMAMPARAMBA, UNNIKULAM,
           KOZHIKODE DISTRICT - 673 574.

    3      NASEERA.M.P,
           AGED 20 YEARS,
           D/O.LATE MOIDU, M.M.PARAMBATH HOUSE,
           EMMAMPARAMBA, UNNIKULAM,
           KOZHIKODE DISTRICT - 673 574.

           BY ADV ZUBAIR PULIKKOOL


RESPONDENT:

           THE ORIENTAL INSURANCE COMPANY LIMITED,
           KADAPPAKKADA, KOLLAM AMARJYOTHI COMPLEX,
           QUILON, PIN - 691 008.


           BY ADV SRI.VPK.PANICKER
 M.A.C.A.No.4079 of 2018

                                             2025:KER:25203
                            -2-



      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 13.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.4079 of 2018

                                                             2025:KER:25203
                                    -3-

                            JUDGMENT

(Dated this the 13th day of March, 2025)

The petitioners in O.P.(M.V.) No.85/2016 on the file of the

Motor Accident Claims Tribunal, Vatakara are 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 daughters of the deceased by name

Nafeesa, who died in a motor vehicle accident that occurred on

20.09.2015. According to them, on 20.09.2015, at about 5.45 p.m.,

while the deceased along with his husband were trying to cross the

zebra line near 20th Mile bus stop, a car bearing Registration No.KL-

61/B-1094 driven by the 2nd respondent in a rash and negligent

manner, knocked them down and as a result of which both of them

sustained serious injuries and later on she succumbed to the injuries,

on the same day.

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 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.31,75,750/- limited to

Rs.18,00,000/-.

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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.

5. The evidence in the case consists of the oral

testimony of PW1 and documentary evidence Exts.A1 to A15. No

evidence was adduced by the respondents.

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.7,34,000/- 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.Zubair Pulikool, the learned Counsel

appearing for the petitioners/appellants, and Sri.V.P.K.Panicker, 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 them,

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the deceased was working as a tailor, earning Rs.500/- per day, but

the Tribunal fixed her monthly income at Rs.8,000/-.The learned

counsel for the insurer would argue that the income fixed by the

tribunal is reasonable.

11. It is true that the petitioners could not prove the

income of the deceased, as claimed in the OP. However from the

evidence it is proved that the deceased was a tailor by profession. 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 2015 will come to Rs.10000/-.

Therefore, considering the fact that the deceased was a tailor by

profession, her notional income is fixed at Rs.11000/-, for the purpose

of computing the loss of dependency.

12. On the date of accident, the deceased was aged 49

years. Therefore, 25% 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 13, as held in Sarla Verma v. Delhi Transport Corporation, (2009) 6

SCC 121. Since the deceased was married who left behind 3

dependents, towards personal and living expense, 1/3 of the income

is liable to be deducted, as held in Sarla Verma (supra). In the above

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circumstances, the loss of dependency will come to Rs.14,30,000/-.

13. The Tribunal has awarded Rs.15,000/- towards loss

of estate, Rs.15,000/- towards funeral expenses and Rs.50,000/-

towards love and 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.1,45,200/- (48,400 x 3).

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 not awarded any compensation. The deceased died in

this case on the date of the accident. In the above circumstances, I

hold that an amount of Rs.25,000/- to be awarded under the head

'pain and sufferings'.

16. No change is required, in the amounts awarded on

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other heads, as the compensation awarded on those heads appears to

be just and reasonable.

17. Therefore, the petitioners/appellants are entitled to

get a total compensation of Rs.16,42,500/-, 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 Rs.) in Appeal (in Rs.)

  1 Loss of dependency                     6,48,000/-                   14,30,000/-
  2 Transport to hospital                   5,000/-                       5,000/-
  3 Damage to clothings                     1,000/-                       1,000/-
  4 Pain and sufferings                          ...                     25,000/-
  5 Loss of love and                        50,000/-                        Nil
    affection
  6 Funeral expenses                        15,000/-                     18,150/-
  7 Loss of estate                          15,000/-                     18,150/-
  8 Loss of consortium                           ....                     1,45,200/-
       Total                               7,34,000/-               16,42,500/-
       Enhanced Rs.9,08,500/-