Partly allowed

Dhanya, v. Abu

Kerala HC21 Nov 2023MACA/3635/2021

Case brief

AI extract

What is this about?

The High Court, in_motor accident_ appeals, remade the income of the deceased and recalculated compensation based on uncontroverted evidence. The court granted additional sums for dependency, consortium, and estate, clarified consolidation of awards,_corrected_ interest rates,_and_ setaparticular_rate._and_ rate for accrued interest.

What did the court decide?

Additional compensation of ₹1,30,000 granted at 7.5% interest; bonus compensation at 8% interest; total estimated compensation adjusted accordingly._and_ interest rates_modified.

Dhanya, Vs Abu — Motor Accident Claims | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 21ST DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945

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MACA NO. 3635 OF 2021

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AGAINST THE AWARD DATED 01.02.2021 IN OP(MV) NO.805 OF 2019 OF MOTOR ACCIDENTS

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CLAIMS TRIBUNAL, MANJERI

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APPELLANTS/PETITIONERS:

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1DHANYA,
36 YEARS,
W/O.LATE SUNILRAJ, PUNNARATH HOUSE, ERNAD TALUK, PANDIKAKD AMSOM
AND POST, VALARD DESOM, MALAPPURAM DISTRICT-676 521.
2NIVEDITHA,
AGED 17 YEARS
(DOB 26.11.2004), (MINOR), D/O.LATE SUNIL RAJ, PUNNARATH HOUSE,
PANDIKKAD POST, MALAPPURAM DISTRICT-676 521, REPRESENTED BY THE
NEXT FRIEND DHANYA, 36 YEARS, W/O.LATE SUNILRAJ, PUNNARATH HOUSE,
PANDIKKAD POST, ERNAD TALUK, MALAPPURAM DISTRICT-676 521.
3SIVATHMIKA,
AGED 8 YEARS
(DOB 03.01.2013), (MINOR), D/O.LATE SUNIL RAJ, PUNNARATH HOUSE,
PANDIKKAD POST, MALAPPURAM DISTRICT REPRESENTED BY THE NEXT FRIEND
DHANYA, 36 YEARS, W/O.LATE SUNILRAJ, PUNNARATH HOUSE, PANDIKKAD
POST, ERNAD TALUK, MALAPPURAM DISTRICT-676 521.
BY ADV R.SREEHARI

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RESPONDENTS:/RESPONDENTS:

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1ABU,
S/O.KUNHIKKOYA, MUNDATH HOUSE, ORAVAMPURAM, THACHINGANADAM POST,
MALAPPURAM DISTRICT-679 325.
2RELIANCE GENERAL INSURANCE CO.LTD.,
VISHNU BUILDINGS, K.P. VALLOM ROAD, KADAVANTHARA POST, ERNAKULAM
DISTRICT, COCHIN-682 020, REPRESENTED BY BRANCH MANAGER.
R2 BY ADVS.SMT.LATHA SUSAN CHERIAN
 SRI.GEORGE A.CHERIAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2023, ALONG

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WITH MACA.3332/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA Nos3635 of 2021 & 3332 of 2022

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-:2:-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶17

PRESENT

¶18

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶19

TUESDAY, THE 21ST DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945

¶20

MACA NO. 3332 OF 2022

¶21

AGAINST THE AWARD DATED 01.02.2021 IN OP(MV) NO.805 OF 2019 OF MOTOR ACCIDENTS

¶22

CLAIMS TRIBUNAL, MANJERI

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APPELLANT/2ND RESPONDENT:

¶24

RELIANCE GENERAL INSURANCE CO. LTD
VISHNU BUILDING, K.P.VALLAM ROAD, KADAVANTHARA,
KADAVANTHARA. P. O. , COCHIN-20, ERNAKULAM DIST. 682020,
REPRESENTED BY ITS MANAGER REGIONAL OFFICE 4TH FLOOR, IMPERIAL
TRADE BUILDING, M.G. ROAD, KOCHI, PIN - 682035
BY ADVS.SMT.LATHA SUSAN CHERIAN
 SRI.GEORGE CHERIAN (SR.)
 SRI.GEORGE A.CHERIAN

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RESPONDENTS/PETITIONERS:

¶26

1DHANYA,
36 YEARS,
W/O SUNILRAJ, PUNNARATH(H), ERNAD TALUK, PANDIKKAD AMSOM, VALARAD
DESOM, PANDIKKAD.P.O. MALAPPURAM DIST.,
676521
2NIVEDITHA,
16 YEARS,
MINOR, DB: 26-11-2004, D/O SUNILRAJ, PUNNARATH(H),
ERNAD TALUK, PANDIKKAD AMSOM, VALARAD DESOM, PANDIKKAD.P.O.
MALAPPURAM DIST-676521
REPRESENTED BY NEXT FRIEND DHANYA, 1ST RESPONDENT,
3SIVATHMIKA,
8 YEARS,
MINOR, DB: 03-01-2013, D/O SUNILRAJ, PUNNARATH(H),
ERNAD TALUK, PANDIKKAD AMSOM, VALARAD DESOM, PANDIKKAD.P.O.
MALAPPURAM DIST.676521REPRESENTED BY NEXT FRIEND DHANYA,
1ST RESPONDENT,
BY ADVS. SRI.SREEHARI R
 SRI.HAMZA A.V.

¶27

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2023, ALONG

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WITH MACA.3635/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA Nos3635 of 2021 & 3332 of 2022

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-:3:-

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JUDGMENT

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Dated this the 21^st day of November, 2023

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MACA No.3635/2021 was filed by the claimants in OP (MV) No.805/2019 on the files of Motor Accidents Claims Tribunal, Manjeri (for short ‘the Tribunal’) and MACA No.3332/2022 was filed by the insurer of the offending vehicle who was the 2^nd respondent in the above Original Petition.

¶34

The appellants in MACA No.3635/2021 were petitioners in OP(MV)No.805/2019 on the files of the Tribunal and the appellant in MACA No.3332/2022 was the 2^nd respondent therein.

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Both parties raised challenge against the quantum of compensation stood awarded by the Tribunal. According to the appellants in MACA No.3635/2021, the Tribunal has fixed the monthly income of the deceased as ` 12,000/- without considering the oral evidence adduced by the 1^st appellant as PW1 in that regard. According to them the deceased was pleaded in the Original Petition as a construction worker

¶36

MACA Nos3635 of 2021 & 3332 of 2022

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earning 24,000/-. According to him, the 1<sup>st</sup> appellant who was the wife of the deceased has deposed before the Tribunal as PW1 that the deceased was the sole bread winner of their family and that, herself and her two children were depending upon his income from the job of her husband as a construction worker for their sustenance. PW1 has deposed further that except 2,3 days in a month, her husband was having engagements as a construction worker. But, the Tribunal fixed the monthly income notionally as 12,000/-. The learned counsel for the appellants also urged that the compensation stood awarded by the Tribunal under the conventional heads is not in tune with the guidelines laid down by the Apex Court in National Insurance Co.Ltd. V. Pranay Sethi and others [2017 (4) KLT 662(SC)]. According to them, as per Pranay Sethi supra, each of the petitioners are entitled to get 44,000/- per head as compensation towards loss of consortium and 16,500/- each as compensation towards loss of estate and funeral expenses. Compensation towards loss of

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MACA Nos3635 of 2021 & 3332 of 2022

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-:5:-

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dependency is also sought to be calculated afresh based on a reasonable monthly income re-fixed.

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In MACA No.3332/2022, the main challenge raised by the appellant/insurer was against 25,000/- stood awarded by the Tribunal as compensation towards pain and suffering. The learned counsel for the appellant also seeks for reducing the rate of interest from 9% ordered by the Tribunal and also for adjusting 25,000/- already stood awarded as compensation towards pain and suffering in the total additional compensation that would be arrived at in the appeal on hand as payable.

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In the backdrop of the contentions raised by the respective counsel, an analysis of the evidence on record is done. 1^st appellant was examined as PW1 and she gave evidence to the effect that her husband was the sole bread winner of their family, that they were totally depending on his income for their livelihood and that except 2, 3 days in a month he has engagements as a construction worker, but

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MACA Nos3635 of 2021 & 3332 of 2022

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-:6:-

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those were not controverted by the 2^nd respondent during cross examination. The motor accident being occurred in the year 2019, this Court finds every reason to re-fix the monthly income as `13,000/- on the basis of the uncontroverted oral evidence of PW1. The age of the deceased was taken by the Tribunal as 42 years and in the absence of a challenge raised against that by the insurer, 25% addition to that is reasonable, in consideration of loss of future prospects on account of the untimely death of the victim in the motor accident in question. 14, the multiplier adopted by the Tribunal being correct for the age of the deceased at the relevant time, is maintained.

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When 25% is added to monthly income re-fixed by

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this Court, 16,250/- (13,000/- + 25% of 13,000/-) is arrived at. Compensation for loss of dependency when calculated afresh on the basis of the modified factors, 18,20,000/- is arrived at ( 16,250/-x 12 x 14 x 2/3).16,80,000/- stood awarded by the Tribunal when adjusted against, petitioners will get ` 1,40,000/- as additional

¶48

MACA Nos3635 of 2021 & 3332 of 2022

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-:7:-

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compensation under that head. `44,000/- each is also

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awarded as compensation towards loss of consortium in favour of the three petitioners who survived the deceased as his wife and two minor children. Thus 1,32,000/- (44,000/- x 3) is arrived at. 16,500/- each is also awarded as compensation towards loss of estate and funeral expenses. 15,000/- each stood awarded as compensation towards loss of estate and funeral expenses when adjusted against the sum now awarded as compensation, petitioners will get `1,500/- each as additional compensation under the respective heads.

¶52

It is found from the impugned award that Rs.1,20,000/- (Rs.40,000/- x 3) was awarded by the Tribunal as compensation towards loss of love and affection. In fact Rs.1,20,000/- was awarded towards loss of consortium infavour of petitioners 1 to 3, but mistakenly it was referred to in the impugned award as compensation awarded towards loss of love and affection. Therefore, Rs.1,20,000/- stood awarded is required to be adjusted against Rs.1,32,000/- now arrived at

¶53

MACA Nos3635 of 2021 & 3332 of 2022

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-:8:-

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as compensation payable towards loss of consortium. Thus the petitioners will get Rs.12,000/- (Rs.1,32,000/- - Rs.1,20,000/-) as additional compensation under that head. Petitioners are not entitled to get 25,000/- stood awarded by the Tribunal as compensation towards pain and sufferings. Therefore, 25,000/- is deducted from the total sum now arrived at as additional compensation.

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It is found that the Tribunal has ordered interest at

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the rate of 9% per annum for the compensation originally awarded. The learned counsel for the appellant in MACA No.3332/2022 contended that the motor accident was occurred in the year 2019 and the impugned award was passed in the year 2021. According to him, only a rate lower than 9% was prevailing as interest during that period. The argument advanced is found to have basis and this Court is inclined to reduce the rate of interest to 8%.

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In the above manner of calculation afresh, petitioners

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will get 1,30,000/- [ 1,40,000/- + 12,000/- + 1,500/- +

¶60

MACA Nos3635 of 2021 & 3332 of 2022

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-:9:-

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1,500 /- ) - ( 25,000/-)] (Rupees One lakh and thirty thousand only) as additional compensation and it will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The original sum stood awarded by the Tribunal, in view of the modification, will only carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of deposit. Disbursal of the compensation in favour of the petitioners shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. Apportionment of compensation in favour of the petitioners shall be in conformity with the directions issued by the Tribunal in that regard in the impugned award.

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Both appeals are allowed in part accordingly.

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MARY JOSEPH

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MJL

Dhanya, v. Abu

Case brief

What is this about?

What did the court decide?

Dhanya, v. Abu

Case brief

What is this about?

What did the court decide?

What the court decided

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