Allowed

Meenakshi.a v. Nithin Thomas

Kerala HC17 Oct 2023MACA/1983/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the Motor Accidents Claims Tribunal's order that exonerated the insurance company. The court increased the compensation award due to revisionist income calculation principles and clarified that separate compensation for loss of love and affection is not required when loss of consortium is granted.

What did the court decide?

Insurance company directed to deposit the entire compensation including an additional Rs.4,15,800/- plus interest.

Meenakshi.a Vs Nithin Thomas — Motor Accident Claims | Kerala HC (2023)

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MACA NO. 1983 OF 2014

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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 ZIYAD RAHMAN A.A.

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TUESDAY, THE 17TH DAY OF OCTOBER 2023 / 25TH ASWINA, 1945

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MACA NO. 1983 OF 2014

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AGAINST THE AWARD DATED 25.10.2013 IN OP(MV)NO.420/2011 OF

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MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KALPETTA

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APPELLANTS/PETITIONERS 1 TO 4:

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1 MEENAKSHI A, AGED 45 YEARS

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W/O.DECEASED E.K. PRABHAKARAN @ RAVI.

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2 VINEESH E.K., AGED 27 YEARS

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S/O.DECEASED E.K.PRABHAKARAN @ RAVI,

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3 REMYA E.K.AGED 27 YEARS

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D/O.DECEASED E.K.PRABHAKARAN @ RAVI,

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4 VINAYAK (MINOR), AGED 12 YEARS, REPRESENTED BY MOTHER MEENAKSHI.A, W/O.DECEASED E.K.PRABHAKARAN @ RAVI, ALL RESIDING AT IRINKOZHA HOUSE, KANNOTHUMALA THAMSAM, KAMPETTY POST, THAVINJAL VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT.

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BY ADV SMT.CELINE JOSEPH

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RESPONDENTS/RESPONDENTS:

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1 NITHIN THOMAS, AGED 19 YEARS S/O.THOMAS, KARIMBIN THOTTATHIL HOUSE, MANANTHAVADY POST, KULIRERIKKUNNU, WAYANAD DISTRICT.

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2 ANTHRU, PUTHALATHU HOUSE, KODIYUR POST, NADAPURAM. 3 THE ORIENTAL INSURANCE COMPANY LTD. SREE NIDHI BUILDING, BADAGARA, CALICUT.

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4 THOMAS, S/O.THOMAS, KARIMBIN THOTTATHIL HOUSE, MANANTHAVADY POST, KULIRERIKKUNNU, WAYANAD DISTRICT.

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R1,R4- SRI.ABRAHAM MATHEW ,
R3- SRI.GEORGE CHERIAN (SR.)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MACA NO. 1983 OF 2014

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JUDGMENT

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The appellants are the petitioners 1 to 4 in

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O.P.(MV)No.420 of 2011 on the files of the Motor
Accidents Claims Tribunal, Kalpetta.

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2.The said claim petition was filed by the

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appellants along with the 5th petitioner therein,
seeking compensation for the death of one

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E.K.Prabhakaran @ Ravi due to the injuries
sustained in a motor accident that occurred on

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26.08.2011. The accident occurred when the

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motorcycle bearing registration No.KL-18F 2903,
ridden by the 1st respondent, owned by the 2nd

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respondent and insured by the 3rd respondent, hit
the said Prabhakaran while walking through the

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road. The 1st appellant is the wife of the
deceased, and appellants 2 to 4 are the children.
The 5th petitioner in the original petition was
the father of the deceased, who passed away,

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while the original petition was pending

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consideration before the Tribunal. Subsequently,

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MACA NO. 1983 OF 2014

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the supplementary 4th respondent was impleaded in
the claim petition as he was the owner of the

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said vehicle at the time of the accident.

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According to the claimants, the deceased was an

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agriculturist aged 54 years and earning
Rs.7,000/- as monthly income. The claim petition
was submitted in such circumstances seeking
compensation.

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3.The 1st respondent appeared and filed a

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written statement denying the negligence on his
part in riding the motorcycle. He denied the
involvement of the motorcycle in the accident.

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The 3rd respondent Insurance Company filed a
written statement admitting the coverage of
policy in respect of the said vehicle. However,
it was contended that the said vehicle was being

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ridden by the 1st respondent, a minor at the
relevant time, without valid driving licence and
therefore, there was violation of policy

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conditions. They also disputed the quantum of
compensation.

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MACA NO. 1983 OF 2014

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4 4. The evidence in this case consists of the

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oral testimony of PW1 and Exts.A1 to A8 from the
side of the appellants. From the side of the
respondents, Exts.B1 to B3 were marked. After the
trial, the Tribunal came to the conclusion that
the accident occurred due to the negligence on
the part of the 1st respondent.

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5.However, as it was found that a minor was
riding the vehicle, the 3rd respondent, the
Insurance Company, was absolved from the

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liability, and respondents 1 and 4 were jointly

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and severally found liable to pay the
compensation. The quantum of compensation was
fixed as Rs.6,85,400/- and respondents 1 and 4
were directed to deposit the said amount with
interest at the rate of 7.5% per annum from the
date of petition till realisation. This appeal is

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filed by the appellants in such circumstances
challenging the order exonerating the Insurance
Company and seeking enhancement of compensation.

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6.Heard Smt.Celine Joseph, the learned

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MACA NO. 1983 OF 2014

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counsel appearing for the appellants and Adv.Sri
Abraham Mathew, the learned counsel appearing for
thefirstandfourthrespondentsand

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Adv.Smt.Latha Susan Cherian, the learned counsel
appearing for the third respondent.

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7.It is evident that the case advanced by

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the Insurance Company was related to the
violation of policy conditions. They did not
dispute the coverage of the policy in the said
vehicle. Of course, it is true that the records
would clearly establish that the first respondent
was driving the motorcycle without a valid
driving licence and he was not competent to ride
the said vehicle. However, that cannot be a
reason to completely exonerate the Insurance

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Company from the liability to pay the
compensation. As far as the claim put forward by
the claimants is concerned, it is the obligation

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of the Tribunal and this Court, to ensure that

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the amount is recovered and paid to them as
expeditiously as possible. Therefore, when the

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MACA NO. 1983 OF 2014

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6 contentions raised by the Insurance Company are

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related to the violation of policy condition,
which is essentially a dispute between the
insurer and insured, the outcome of the said
dispute cannot have an impact upon the claim of
the victim of the motor accident. Therefore,
under no circumstances, the order passed by the
Tribunal, exonerating the Insurance Company could
be sustained and it is set aside; however,
clarifying that the third respondent-Insurance
Company shall be at liberty to recover the amount
determined as compensation, from the first and
fourth respondents after satisfying the award.

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quantum of compensation. The main dispute
concerns the amount awarded under the head of
loss of dependency. For the purpose of computing
the same, the Tribunal took the monthly income of

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the deceased as Rs.4000/- In the facts and

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circumstances of the case, the said amount

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appears to be grossly inadequate. Going by the

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MACA NO. 1983 OF 2014

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principles laid down by the Hon’ble Supreme Court

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in Ramachandrappa’s V. Manager, Royal Sundaram
Alliance Insurance Co. Ltd [(2011) 13 SCC 236]
and Syed Sadiq V. Divisional Manager, United
India Insurance Company [(2014) 2 SCC 735], in
the absence of any evidence, the monthly income
of an ordinary worker has to be fixed as
Rs.4500/- in the accident occurred in the year
2004. For the subsequent years, the monthly

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income could be reckoned by adding Rs.500/- each

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per year. The said method of computation is
logical, and it is consistently followed by this
Court. When adopting the said method, the monthly
income in this case would come to Rs.8000/-, as
the accident occurred in the year 2011. Of
course, it is true that the amount claimed in the
claim petition is only Rs.7000/-. However, the
deceased was an agriculturist, and the monthly
income varies from month to month. The deceased

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was not a person with a static monthly income;
hence, the possibility of lesser amounts being

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MACA NO. 1983 OF 2014

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shown in the claim petition cannot be ruled out.
In several other decisions, including the Minu
Rout and Another v. Satyapradyumna Mohapatra and
Others [(2013)10 SCC 695], Honourable Supreme
Court took the monthly income than the one
claimed in the claim petition. Therefore, I deem
it appropriate to adopt the monthly income that
is calculated based on the principles laid down
in Ramachandrappa and Syed Sadiq’s cases (supra)
as Rs.8,000/- Therefore, while reassessing the
compensation for loss of dependency with the
monthly income of Rs.8000/- and by applying the
other parameters as per the decision of the

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Hon’ble Supreme Court inNational Insurance
Company Ltd., v. Pranay Sethi [2017(4) KLT
662(SC)],the said amount would come to
Rs.8,71,200/- [(8000 + 10%) X 12 X 11 X ¾]. Thus,
after deducting Rs.4,55,400/, the amount awarded
by the Tribunal under the said head, the
additional amount would come to Rs.4,15,800/-.
The other head, highlighted by the learned

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MACA NO. 1983 OF 2014

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counsel for the appellants, is for loss of
consortium, which was Rs.1,00,000/- The deceased
left behind five dependents, who are the wife,
three children and father. Therefore, all of the
said persons are entitled to compensation for
loss of consortium @ Rs.40,000/- each, which
would come to a total sum of Rs. 2,00,000/-
However, it is seen that in the award, in
addition to the amount already awarded for loss
of consortium, a further sum of Rs.1,00,000/- is
awarded towards loss of love and affection. As
per the decision rendered by the Hon’ble Supreme
Court in Satinder Kaur @ Satwinder Kaur and Other
[(2021)11 SCC 780], the compensation for loss of
love and affection need not be granted
when compensation is awarded for loss
of consortium. Therefore, the amount of

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Rs.1,00,000/- awarded towards loss of love and

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affection can be adjusted to the amount
receivable by the appellants for loss of
consortium. Therefore, no enhancement has to be

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MACA NO. 1983 OF 2014

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granted under the said head. Similarly, the
amount awarded by the Tribunal under the head of
funeral expenses is in excess by Rs.10,000/-,
whereas it is lesser by Rs.10,000/- under the
head of loss of estate. Therefore, these amounts
can be adjusted against each other, to ensure
just compensation. Therefore, no further addition

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is required. Thus, the total additional
compensation receivable by the appellants in this
case would come to Rs.4,15,800/-.

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observations and finding, this appeal is allowed,
andtheawarddated25.10.2013in

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OP(MV)No.420/2011 passed by the Motor Accidents
Claims Tribunal, Kalpetta is hereby modified by
granting an additional amount of Rs.4,15,800/-
(Rupees Four Lakhs Fifteen thousand Eight hundred
only). Since this Court had already found that
the order exonerating the Insurance Company from
the liability to pay the compensation was not
proper, the Insurance Company is directed to

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MACA NO. 1983 OF 2014

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deposit the entire amount of compensation as
awarded by the Tribunal along with the additional
compensation determined in this appeal with
interest at the rate as ordered by the Tribunal
and proportionate costs, within a period of three
months from the date of receipt of a copy of this
judgment. It is clarified that, upon the deposit
of the said amount, the third respondent can
recover the said compensation from respondents 1
and 4 in this appeal by executing the award.

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This appeal is allowed accordingly.

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 Sd/-

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ZIYAD RAHMAN A.A, JUDGE

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R.AV

Meenakshi.a v. Nithin Thomas

Case brief

What is this about?

What did the court decide?

Meenakshi.a v. Nithin Thomas

Case brief

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