Partly allowed

V.C.Balachandran v. the Divisional Manager, New India Assurance Co. Ltd.

Kerala HC8 Jan 2021MACA/27/2016

Case brief

AI extract

What is this about?

High Court modified compensation awarded in a motor accident death case involving loss of dependency, pain and suffering, funeral expenses, and loss of consortium, increasing total relief to Rs.17.87 lakhs based on salary evidence and Supreme Court guidelines.

What did the court decide?

Total compensation fixed at Rs.17,87,184/- with additional sum of Rs.4,81,384/- payable to appellants with 9% interest from date of filing till payment.

V.C.Balachandran Vs the Divisional Manager, New India… — Motor Accident Claims | 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 T.V.ANILKUMAR

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FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

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MACA.No.27 OF 2016(C)

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AGAINST THE AWARD IN OP(MV) 1205/2014 DATED 11-09-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM

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APPELLANTS/PETITIONERS:

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1 V.C.BALACHANDRAN AGED 53 YEARS, S/O.KESAVAN,

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VAZHAKALAYIL HOUSE, CHEERAMCHIRA P.O., CHETHIPUZHA VILLAGE, CHANGANACHERY, KOTTAYAM DISTRICT.

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2 SREEVIDHYA BALACHANDRAN AGED 28 YEARS D/O.BALACHANDRAN, VAZHAKALAYIL HOUSE, CHEERAMCHIRA P.O., CHETHIPUZHA VILLAGE, CHANGANACHERY, KOTTAYAM DISTRICT.

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3 KANNAN V. BALACHANDRAN AGED 25 YEARS S/O.BALACHANDRAN, VAZHAKALAYIL HOUSE, CHEERAMCHIRA P.O., CHETHIPUZHA VILLAGE, CHANGANACHERY, KOTTAYAM DISTRICT.

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4 UNNIKUTTAN BALACHANDRAN AGED 23 YEARS S/O.BALACHANDRAN, VAZHAKALAYIL HOUSE, CHEERAMCHIRA P.O., CHETHIPUZHA VILLAGE, CHANGANACHERY, KOTTAYAM DISTRICT.

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BY ADVS.

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SHRI.P.M.JOSHI SMT.ELIZABETH KOSHY SRI.K.J.GLADIS SMT.SIJI K.PAUL

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RESPONDENTS:

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM - 1, KOTTAYAM.

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R1 BY ADV. SMT.M.MEENA JOHN R1 BY ADV. SRI.VIJU THOMAS

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

M.A.C.A.No.27/2016

JUDGMENT

Dated this the 8th day of January 2021

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This appeal is filed by the petitioners in O.P.(M.V.)No.1205 of 2014 on the file of the Motor Accidents Claims Tribunal, Kottayam, challenging the award dated 11.9.2015 on the ground of inadequacy of compensation.

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The appellants are dependents of Sheela Balachandran, who died in a motor accident that occurred on 3.5.2014. They are the husband and three major children of the deceased. The injured died after ten days of the accident. The appellants claimed that the deceased was employed in a private firm and produced Exhibit A7 salary certificate to prove that she was drawing monthly salary of Rs.9,500/-. They claimed compensation under various heads which are detailed in the impugned award. The respondent Insurance Company admitted the accident as well as the policy coverage.

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The learned Tribunal, after fixing the monthly income of the deceased as Rs.7,000/-, on notional basis, adding future prospects of 30% and deducting personal and living expenses

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M.A.C.A.No.27/2016

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by 1/3, fixed a total amount of loss of dependency for an amount of Rs.10,24,800/-, applying multiplier of 14. The quantification of loss of dependency is challenged on the ground that the monthly income adopted was below her actual income and another 1/3 deducted towards personal and living expenses exceeded ¼. Another contention raised is that Rs.25,000/- awarded for pain and suffering was much lower.

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I heard the learned counsel for the appellants as well as the respondent Insurance Company.

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Exhibit A7 salary certificate was not proved by examining the official who issued it. Nevertheless the learned Standing Counsel for the Insurance Company did not object to Exhibit A7 being considered as part of the evidence. Even otherwise I am satisfied that at the relevant time of the accident, it was only reasonable that the deceased would have been drawing a monthly salary of Rs.9,500/- as mentioned in Exhibit A7. The dependents being four in number, the court below should have deducted only 1/4 of the personal and living expenses as per the guidelines issued in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] . In that event, the

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M.A.C.A.No.27/2016

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annual multiplicant should be fixed in the following formula : Rs.9,500/- + 30% of Rs.9,500/- = Rs.12,350/- less ¼ = Rs.9,263/- x 12 = Rs.1,11,156/-

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Applying the multiplier 14 as set forth in Sarla Verma 's case, the total amount of loss of dependency would rise to Rs.15,56,184/- from Rs.10,24,800/- fixed by the Tribunal.

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Considering the fact that the deceased was hospitalised for ten days and had undergone sufferings during the period, the amount of Rs.25,000/- fixed by the Tribunal is modified to a reasonable amount of Rs.35,000/-.

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The learned counsel for the respondent points out

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that the court below went wrong in granting increased amounts towards compensation under conventional heads, i.e., loss of estate, loss of consortium and funeral expenses.

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The submission appears to be correct. As per the decision reported in National Insurance Company Limited v. Pranay Sethi and others [(2017) 16 SCC 680] , the loss of estate and funeral expenses cannot exceed Rs.15,000/-. Therefore, Rs.10,000/- and Rs.35,000/- have to be deducted respectively from the funeral expenses and loss of estate

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M.A.C.A.No.27/2016

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awarded by the Tribunal. Applying the principles laid down in Pranay Sethi 's case and Magma General Insurance Company Ltd. v. Nanu Ram Alias Chuhru Ram and others [(2018) 18 SCC 130] , consortium amount of Rs.40,000/- is awarded to each of the four petitioners. In order to avoid duplication of claims, amount awarded under the head of loss of love and affection is deleted. In all other aspects, the impugned award is approved.

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The table of claims and compensation awarded by the

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Tribunal is modified as below :

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Sl No.	Head of Clai	m	Amount claimed Rs.		Amount awarded Rs.
1	Transport hospital	to	5,000/-		3,000/-
2	Extra nourishment		3,000/-		1,000/-
3	Damage clothings	to	1,000/-		1,000/-
4	Loss dependency	of	9,00,000/-		15,56,184/-
5	Pain sufferings	and	1,00,000/-		35,000/-
6	Funeral expenses		60,000/-		15,000/-
7	Loss consortium	of	1,00,000/-		1,60,000/-
8	Loss of esta	te	1,00,000/-		15,000/-
9	Medical expenses		50,000/-		1,000/-
	Total		17,19,000/- limited 15,00,000/-	to	17,87,184/-

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M.A.C.A.No.27/2016

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In the light of the above, it is declared that appellants, being entitled to a total compensation of Rs.17,87,184/-, will receive additional compensation of Rs.4,81,384/(Rs.17,87,184/- – Rs.13,05,800/-) from the respondent with interest at the rate of 9% per annum from the date of O.P. till the date of payment. The respondent will satisfy the award within a month from the date of receipt of certified copy of this judgment. No order as to costs.

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Sd/-

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T.V.ANILKUMAR JUDGE

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csl

V.C.Balachandran v. the Divisional Manager, New India Assurance Co. Ltd.

Case brief

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V.C.Balachandran v. the Divisional Manager, New India Assurance Co. Ltd.

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