Allowed

Nalini Sasidharan @ P.T.Nalini v. Narayana Pillai

Kerala HC6 Jul 2021MACA/1202/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed a motor accident claims appeal, modifying an order by the Tribunal to enhance compensation for the family of a deceased motorcyclist. The Court adjusted the multiplier for loss of dependency, increased funeral expenses, consortium damages, and other heads based on recent Supreme Court judgments.

What did the court decide?

Award modified to Rs. 2,194,101/- with 9% interest; insurer directed to deposit amount within two months.

Nalini Sasidharan @ P.T.Nalini Vs Narayana Pillai — Medical Negligence | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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TUESDAY, THE 6^TH DAY OF JULY 2021 / 15TH ASHADHA, 1943

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MACA NO. 1202 OF 2009

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AGAINST THE JUDGMENT IN OPMV 20/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANTS:PETITIONERS

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1 NALINI SASIDHARAN @ P.T.NALINI W/O.LATE C.G.SASIDHARAN, SREE NILAYAM, 498-A,, BTC ROAD, MARADU P.O., MARADU VILLAGE, ERNAKULAM DISTRICT.

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2 UMA SASIDHARAN DO.LATE C.G.SASIDHARAN SREE NILAYAM, 498-A, BTC ROAD, MARADU P.O., MARADU VILLAGE, ERNAKULAM DISTRICT.

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3 THULASI SASIDHARAN, D/O.LATE C.G.SASIDHARAN, SREE NILAYAM, 498-A, BTC ROAD, MARADU P.O., MARADU VILLAGE, ERNAKULAM DISTRICT.

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4 VIDYA SASIDHARAN (MINOR) AGED 13 YEARS D/O.LATE C.G.SASIDHARAN, SREE NILAYAM, 498-A, BTC ROAD, MARADU P.O., MARADU VILLAGE, ERNAKULAM DISTRICT, REPRESENTED BY HER NEXT FRIEND-MOTHER, 1ST APPELLANT NALINI SASIDHARAN@ P.T.NALINI. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH

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RESPONDENTS:

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1 NARAYANA PILLAI, S/O.CHELLAPPAN PILLAI PUTHEN VEEDU, CHATHAKULAM, PORUVAZHY, KUNNATHOOR, KOLLAM DISTRICT.

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2 K.K.NAZAR, S/O.KHADER MANNITTATHARA HOUSE, BEHIND P.H.CENTRE, EZHIKKARA, (VIA) N.PARUR.

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M.A.C.A.No.1202/2009

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3 THE NEW INDIA ASSURANCE CO. LTD. REGIONAL OFFICE, COCHIN-11.

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ADVOCATES :

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M.HEMALATHA FOR R3

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T.D.ROBIN FOR R2

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K.S.MANU FOR R1

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P.SREEKUMAR FOR R1

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1202/2009

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A. BADHARUDEEN, J.

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================================

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M.A.C.A No.1202 of 2009

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================================ Dated this the 6^th day of July, 2021

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J U D G M E N T

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The petitioners in O.P(MV) No.20 of 2002 on the files of the Motor

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Accidents Claims Tribunal, Ernakulam are the appellants and they are challenging award dated 11.03.2008 passed by the Tribunal as the same is insufficient. The respondents herein are the original respondents before the Tribunal.

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2 . The brief facts of the case :

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The appellants/petitioners are the widow and minor children of deceased Sasidharan, who met with an accident on 08.10.2001 at 8.10 a.m

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while riding his motorcycle KL-7/x 5008. According to the petitioners, while the deceased was travelling from east to west along the southern side of Thevara-Kundannur-Madhura National Highway, near the Kundannur bridge, lorry KL-2/925 driven by the 2 nd respondent came in the opposite direction in a rash and negligent manner, went off its side and hit the

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M.A.C.A.No.1202/2009

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motorcycle. The said Sasidharan fell on the road and sustained severe injuries. Immediately he was taken to Medical Trust Hospital, Ernakulam. But he succumbed to the injuries at 9.25 a.m on the same day. The incident had occurred due to the rash and negligent driving of the 2 nd respondent. The 1 st respondent is the owner and the 3 rd respondent is the insurer of the vehicle. The deceased was an Assistant Engineer in Cochin Shipyard Ltd., earning a monthly income of Rs.14,992/-. He was 44 years old. Thus the petitioners have claimed a compensation of Rs.20,00,000/- from the respondents under Sections 166 and 140 Motor Vehicles Act.

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The Tribunal, by the impugned award, directed payment of a total amount of Rs.13,11,096/- as per the details given in para.10 of the

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impugned award, which I extract below:

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Sl.N o.	Head of claim	Amount awarded
1	Transportation and funeral expenses	Rs. 5,000.00
2	Shock,pain and sufferings	Rs. 10,000.00
3	Loss of dependency	Rs.12,66,096.00
4	Loss of consortium	Rs. 10,000.00
5	Loss of love and affection	Rs. 10,000.00
6	Loss of estate	Rs. 10,000.00
	Total	Rs.13,11,096.00

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The 3 rd respondent/insurer was made entirely liable to satisfy the impugned

M.A.C.A.No.1202/2009

award.

4 . Heard the learned counsel for the appellants/petitioners as well

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as the insurance company. The learned counsel for the appellants canvassed increase under various heads in view of the judicial pronouncement by the Apex Court as well as this Court by refixing monthly income and compensation under the other heads.

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5 . The first point argued by the learned counsel for the petitioners is that the multiplier applied by the Tribunal is incorrect in relation to the deceased by placing him under the age group of 46-50. In this connection he submitted that the date of birth of the deceased as born out from Ext.A7 employment certificate is 15.11.1956 and he died on 08.10.2001. Therefore, the deceased completed only 45 years on the date of death and accordingly the multiplier would be 14 instead of 13 taken by the Tribunal. He submitted further that 30% addition is also entitled by the claimants herein in view of the decision reported in National Insurance Company Limited v. Pranay Sethi and Ors. [(2017) 16 SCC 680] . He submitted further that the deduction effected under the head `personal expenses' also is higher. According to the learned counsel, the Tribunal reduced 1/3 instead of ¼. The learned counsel for the insurance company conceded the

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M.A.C.A.No.1202/2009

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arguments as the enhancement claimed was based on settled legal proposition. In view of the matter, loss of dependency income calculated by the Tribunal required to be refixed as : 12174X12X130/100X14X3/4 = Rs.19,94,101/- minus the amount awarded by the Tribunal - Rs.12,66,096/- = Rs.7,28,005/- . Therefore, Rs.7,28,005/- is more to be awarded and I grant the same.

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6 . The learned counsel for the appellants/petitioners submitted that

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as per the decisions reported in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] and National Insurance Company Limited v. Pranay Sethi and Ors. [(2017) 16 SCC 680], funeral expense entitled by the appellants/petitioners is only Rs.15,000/- by following the ratio in Sarla Verma (supra) and Pranay Sethi (supra). The submission appears to be correct though a formal objection was raised by the learned counsel for the insurance company. In view of the matter, Rs.10,000/- more under the head `funeral expenses' is also liable to be granted.

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7 . Coming to consortium, the Tribunal granted Rs.10,000/-. The learned counsel for the appellants/petitioners submitted that as per the decision reported in United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors. [2020 3 ILR 334] followed in Sannasi & Ors. v.

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M.A.C.A.No.1202/2009

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The Manager, National Insurance Co. Ltd. [2020 ACJ 2010], the petitioners, 4 in numbers, in fact are entitled to get Rs.40,000/- each under the head loss of consortium. This legal position is not in dispute. In view of the matter, the petitioners are entitled to get Rs.1,50,000/- more under this head.

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8 . Similarly, by following the ratio in Sarla Verma ( supra ) and Pranay Sethi ( supra ), the learned counsel for the appellants/petitioners advanced an argument that Rs.5,000/- more under the head loss of estate is to be granted. The same also is liable to be granted.

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9 . The learned counsel for the appellants/petitioners argued that no amount under the head `transport to hospital' is granted by the Tribunal. Therefore, I grant Rs.4,000/- under the said head.

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10. The learned counsel for the insurance company submitted that the Tribunal went wrong in granting the compensation under the head Love and affection to the tune of Rs.10,000/- as the same is impermissible in those cases, where death was instantaneous. In fact, grant of compensation for pain and sufferings in a case of death is not impermissible. In Sannasi & Ors. v. The Manager, National Insurance Co. Ltd. ( supra ) it has been held that Rs.5,000/- to Rs.15,000/- could be awarded in cases of instantaneous

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M.A.C.A.No.1202/2009

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death as well as in the cases where deceased was conscious between the time of accident and the time of death. Therefore, Rs.10,000/- under this head

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need not be reduced as the same is legally permissible.

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11. Therefore, the award is modified and enhancement granted as

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follows:

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Sl. No.	Head of claim	Amount awardedby the Tribunal	Modified award amount
1	Transportation and funeral expenses	Rs. 5,000.00	Rs. 15,000.00
2	Shock,pain and sufferings	Rs. 10,000.00	Rs. 10,000.00
3	Loss of dependency	Rs.12,66,096.00	Rs.19,94,101.00
4	Loss of consortium	Rs. 10,000.00	Rs. 1,60,000.00
5	Loss of love and affection	Rs. 10,000.00
6	Loss of estate	Rs. 10,000.00	Rs. 15,000.00
	Total	Rs.13,11,096.00	Rs.21,94,101.00

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In the result:

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a) This M.A.C.A is allowed;

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b) The appellants/petitioners are found entitled to a further amount

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of Rs.8,83,005/- (Rupees Eight lakhs eighty three thousand and five only)

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in addition to the amount already awarded by the Tribunal under the impugned award;

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M.A.C.A.No.1202/2009

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c) The entire amount of compensation shall carry interest at the rate of 9% from the date of petition till the date of deposit or realisation.

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But it is made clear that no interest amount on the enhanced amount of compensation will be payable for the period of delay in filing this appeal, ie. 26 days, as delay was condoned at the time of admission on such a condition;

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d) The 3^rd respondent/insurer is directed deposit the entire amount

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of compensation within a period of two months from this date.

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e) Proportionate cost in the proceedings before the Tribunal on the entire amount of compensation shall be payable to the appellants as held in

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Jeena V. Satheesh Babu.K [2011(3) KLT 943];

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f) All other directions of the Tribunal are upheld.

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Sd/- (A. BADHARUDEEN, JUDGE)