Partly allowed

Valsala v. Divisional Manager

Kerala HC11 Aug 2021MACA/637/2015

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded in a motor accident case arising from the death of Mohanan. The Court increased the deceased's monthly income estimate and recalculated dependency and consortium damages per Pranay Sethi standards, raising the total from Rs.8.37 lakh to Rs.13.22 lakh.

What did the court decide?

Claim allowed in part; compensation enhanced to Rs.13,22,000 with interest directed to be paid by the insurer within two months.

Valsala Vs Divisional Manager — 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 A. BADHARUDEEN

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WEDNESDAY, THE 11^TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943

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MACA NO. 637 OF 2015

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AGAINST THE ORDER/JUDGMENT IN OPMV 1593/2011 OF MOTOR ACCIDENT

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CLAIMS TRIBUNAL ,KOLLAM, KOLLAM

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APPELLANT/S:

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1 VALSALA W/O. LATE MOHANAN, PAYATTTU VADAKKATHIL VEEDU,MANAPPALLY SOUTH, PAVUMBA

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2 ASWATHY AGED 12 YEARS D/O. LATE MOHNANAN, PARAYATTU VADAKKATHIL VEEDU, MANAPPALLY SOUTH, PAVUMBA (MINOR REPRESENTED BY HER MOTHER, 1ST APPELLANT)

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3 ASWANIDO.LATE MOHANAN AGED 12 YEARS PARAYATTU VADAKKATHIL VEEDU, MANAPPALLY SOUTH, PAVUMBA (MINOR REPRESENTED BY HER MOTHER, 1ST APPELLANT)

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4 BHASKARAN AGED 73 YEARS F/O.LATE MOHANAN,PARAYATTU VADAKKATHIL VEEDU, MANAPPALLY SOUTH, PAVUMBA (MINOR REPRESENTED BY HER MOTHER, 1ST APPELLANT)

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5 AMMUKKUTTY AGED 63 YEARS M/O. LATE PARAYATTU VADAKKATHIL VEEDU, MANAPPALLY SOUTH, PAVUMBA (MINOR REPRESENTED BY HER MOTHER, 1ST APPELLANT)

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BY ADVS. SRI.PRATHEESH.P SMT.NIMA JACOB SMT.S.SEETHA

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RESPONDENT/S:

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DIVISIONAL MANAGER

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MACA NO. 637 OF 2015

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M/S. ORIENTAL INSURANCE CO. LTD, KOLLAM691 001 BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI

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OTHER PRESENT:

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ADVOCATE K.S SANTHI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 637 OF 2015

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JUDGMENT C.R.

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The petitioners, who are aggrieved by the award of the MACT, Kollam, in OP (MV). No.1593 of 2011 dated 11.04.2014, have approached this Court seeking enhancement of compensation granted by the Tribunal. The respondent herein is the original 3^rd respondent before the Tribunal.

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One Mohanan died in a motor cycle accident occurred on 21.04.2011 at about 8.30 am, while riding his motor cycle, since he was hit down by an autorikshaw driven by the 1^st respondent in a rash and negligent manner. The claimants claimed Rs.25 lakh as compensation.

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The insurance company filed a written statement and admitted the policy. Negligence was disputed and quantum of compensation was challenged. Respondents 1 and 2 remained ex-parte before the Tribunal.

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Learned Tribunal, after adducing evidence, passed the impugned award granting Rs.8,37,000/- along with 9% interest. The above award is under challenge before this Court.

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Learned Counsel for the petitioners submitted that the Tribunal fixed Rs.6,000/- as monthly income of the deceased for the purpose of

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MACA NO. 637 OF 2015

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assessing loss of dependency income, though specific plea claiming Rs.50,000/- was raised, supported by documents marked as Exts. A8 to A14. He submitted further that the deceased was a contractual worker doing the job of 'batching plant operator' in Libya and he earned Rs.50,000/- Indian Rupee per month. In support of his contention, Ext.A8 pay slip during December 2010 showing net salary of 1582.146 LYD was produced without disclosing the actual amount as per the value of Indian currency. Ext.A9 produced in this case is the termination of employment certificate. Ext.A11 is the passport of the deceased; Ext.A12 is the document showing posting of the deceased as 'batching plant operator' during March 2005 in Libya. It is submitted

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by the learned Counsel for the petitioners that Ext.A13 series are slips showing transfer of money by the deceased through Western Union Money Transfer. Ext.A14 is the renewal premium receipt issued by the LIC of India dated 12.07.2003. Remittance of Rs.4,502/- could be gathered there from towards the policy taken on 14.07.1997.

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Learned Counsel for the insurance company vehemently opposed consideration of these documents to fix a higher income in excess of what has been permitted as per the dictum laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] . It is

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MACA NO. 637 OF 2015

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submitted that Rs.8,000/- is liable to be fixed following the ratio of the above said ruling and nothing more is liable to be fixed.

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Per contra, learned Counsel for the petitioners pressed increase more than Rs.8,000/- on the submission that, going by the documents Exts.A8 to A14, employment of the deceased as 'batching plant operator' in Libya, prior to his death could be gathered.

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On a scrutiny of Exts. A1 to A14, the same do not suggest what actually was the income of the deceased even as per the documents. In PW1's chief affidavit, more than Rs.40,000/- is stated as the income of the deceased. That would show that PW1 also is not certain about what actually was the monthly income of the deceased. However, the documents if read together, the job of the deceased as 'batching plant operator' could be gathered, though the petitioners miserably failed to establish the technical qualification of the deceased to do the work. However, long tenure of the deceased in Libya as a 'batching plant operator' could be gathered from the documents. Taking note of the said fact, I am inclined to take a lenient view in this matter to enhance the monthly income of the deceased something more than Rs.8,000/-. Therefore, I am inclined to fix Rs.10,000/- as the monthly income of the deceased for the purpose of calculating loss of dependency. It is not

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MACA NO. 637 OF 2015

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in dispute that 10% addition towards future prospects is also permissible following the ratio in the decision reported in National Insurance Company Limited v. Pranay Sethi and Ors. [(2017) 16 SCC 680] . Therefore, the loss of dependency income is recalculated as Rs.11,000/x 11 x 12 x ¾ = Rs.10,89,000/-.

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It is submitted by the learned Counsel for the petitioners that, Rs.1 lakh is granted as loss of consortium, and in view of the decision in

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Pranay Sethi 's case ( supra ), the same requires to be refixed at the rate of Rs.40,000/- each. The submission is not opposed, as the same is the ratio in Pranay Sethi' s decision. Thus, the loss of consortium is recalculated as 40000 x 5 = 2 lakhs. Therefore, Rs.1 lakh more is granted under the head loss of consortium.

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Coming to the other heads, learned Counsel for the insurance company canvassed deduction, following the ratio in Pranay Sethi 's case. Funeral expenses granted by the Tribunal is Rs.25,000/- and the same is required to be reduced to Rs.15,000/-. Rs.10,000/- was granted by the Tribunal under the head love and affection and the same is not permissible. Therefore, the said amount also is reduced. Further, Rs.1 lakh was granted under the head loss of care and guidance of the minor children. The same also is not permissible and as such, the said

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MACA NO. 637 OF 2015

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sum stands deducted.

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Accordingly, the award is modified as follows:

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Sl No.	Head of claim	Amount awarded(Rs.)	Modified Amount in Appeal (Rs.)
1	Transportation to hospital	2000/-	2000/-
2	Damages to clothing	1000/-	1000/-
3	Funeral expenses	25,000/-	15,000/-
4	Compensation for pain and sufferings - Loss of Love and affection	10,000/-
5	Compensation for loss of consortium	1,00,000/-	2,00,000/-
6	Loss of estate	5000/-	15,000/-
7	Compensation for loss of dependency	5,94,000/-	11,000 x 12 x 11/4 = 10,89,000/-
8	Loss of care and guidance to minor	1,00,000/-
	Total	8,37,000/-	13,22,000/-

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In the result:

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

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MACA NO. 637 OF 2015

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b) Modified award passed and the compensation enhanced to the tune of Rs.13,22,000/-(Rupees Thirteen lakh twenty two thousand only ) to be paid by the 3^rd respondent with 9% interest granted by the Triubunal and the amount shall be deposited by the insurance company being the indemnifier of the insured.

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c) The respondent/3^rd respondent insurer is directed to deposit the entire amount of compensation as apportioned by the Tribunal within a period of two months from this date. On deposit, the petitioners are at liberty to release the same forthwith.

Sd/-

A. BADHARUDEEN

JUDGE

12.08.2021

Valsala v. Divisional Manager

Case brief

What is this about?

What did the court decide?

Valsala v. Divisional Manager

Case brief

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