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2024 DIGILAW 1238 (KER)

United India Insurance Company Limited v. B. Biju

2024-09-26

SHOBA ANNAMMA EAPEN

body2024
JUDGMENT : The appeal has been filed by the 2 nd respondent insurer in O.P (MV) No.132 of 2011 on the file of the Addl. Motor Accidents Claims Tribunal-III, Thiruvananthapuram. The respondents in the appeal were the claimants before the tribunal. The claimants in the said OP (MV) have filed Cross Objection No.133 of 2021 in the appeal. 2. The brief facts of the case is as follows:- On 03.11.2010 at about 10.45 am, while the deceased was riding her Kinetic Honda scooter bearing Registration No.KL-01-T-5796 through Maruthamkuzhy – Sasthamangalam Road, a mini bus bearing registration No.KL-01-N-9205, driven by one Saji S., in a rash and negligent manner, hit against the scooter. As a result, she sustained serious injuries and succumbed to the injuries. The 1 st petitioner was the husband, 2 nd & 3 rd petitioners were the minor son and daughter of the deceased, respectively. The 4 th & 5 th petitioners were the mother and father of the deceased respectively. The 1 st respondent was the owner and 2 nd respondent was the insurer of the offending vehicle. The claimants approached the tribunal claiming a total compensation of Rs.70,97,000/-, which was limited to Rs. 52,00,000/-. 3. The 1 st respondent owner was set exparte before the Tribunal. The 2 nd respondent insurer filed a written statement, admitting the policy, but disputing the quantum of compensation claimed. Before the tribunal, no oral evidence was adduced on either side. Exts.A1 to A11 were marked on the side of the claimants. No documents were marked from the side of the respondents. The tribunal, after analysing the pleadings and materials on record, awarded a sum of Rs.27,48,080/- as compensation under different heads with interest @9% per annum from the date of petition till realization, against the respondent insurer. Challenging the quantum of compensation awarded by the tribunal, the 2 nd respondent insurer has come up with the appeal. The claimants have filed Cross Objection No.133 of 2021 in the appeal, seeking enhancement of compensation awarded by the tribunal. 4. Heard the learned standing counsel appearing for the insurance company and the learned counsel for the cross objectors. 5. The learned standing counsel appearing for the insurance company as well as the learned counsel for the cross objectors claims modification mainly under the following heads: 5.1. 4. Heard the learned standing counsel appearing for the insurance company and the learned counsel for the cross objectors. 5. The learned standing counsel appearing for the insurance company as well as the learned counsel for the cross objectors claims modification mainly under the following heads: 5.1. Loss of love and affection/ loss of consortium - The learned standing counsel appearing for the Insurance Company submitted that while awarding compensation, the tribunal has awarded an amount of Rs. 2,00,000/- towards loss of love and affection, which is on a higher side. On a perusal of the award, it is found that there are five legal heirs, husband, minor children and parents of the deceased, and it is seen that the tribunal has awarded only an amount of Rs.1,00,000/- towards loss of consortium. The tribunal ought to have been awarded an amount of Rs.2,00,000/- as compensation towards loss of consortium. It is the fact that an amount of Rs.2,00,000/- has been awarded by the tribunal towards loss of love and affection. In New India Assurance Company v. Somwati and others [2020 (5) KLT OnLine 1198 (SC)], it has been held that once compensation is awarded under the head loss of consortium, no amount shall be awarded under the head loss of love and affection, as it would amount to duplication of compensation. Hence, I am inclined to award an additional amount of Rs. 1,00,000 under the head loss of consortium and the amount of Rs.2,00,000/- granted under the head loss of love and affection is deleted. 5.2. Loss of estate - The learned standing counsel appearing for the Insurance Company submitted that, while awarding compensation, the tribunal has awarded an amount of Rs.1,00,000/- towards loss of estate, which is on a higher side. Going by the judgment in National Insurance Company Ltd. v. Pranay Sethi [ 2017 (4) KLT 662 (SC)], the appellants are entitled only for an amount of ?15,000/- under the head loss of estate. Thus, there will be a deduction of an amount of Rs. 85,000/- (Rupees Eighty five thousand only) under the afore head. 5.3. Compensation for loss of dependency - The learned counsel appearing for the appellants have filed cross objection contending that while awarding compensation for loss of dependency, the tribunal has deducted one – third instead of one fourth, since there are five legal heirs. 85,000/- (Rupees Eighty five thousand only) under the afore head. 5.3. Compensation for loss of dependency - The learned counsel appearing for the appellants have filed cross objection contending that while awarding compensation for loss of dependency, the tribunal has deducted one – third instead of one fourth, since there are five legal heirs. The learned standing counsel appearing for the insurer submitted that the claimants have not proved the dependency of the parents on the deceased daughter. Although the tribunal deducted one- third of the compensation for personal and living expenses, citing insufficient proof of parental dependency, it is crucial to recognize that the parents’ relationship with their deceased daughter transcends financial dependence. As parents, they had an inherent emotional dependency on their daughter, encompassing love, care, affection and emotional support, regardless of their physical living arrangements. Hence, I find that the respondents 4 and 5 - the parents of the deceased, are entitled for compensation under the head loss of dependency. The learned standing counsel for the insurance company submits that the 5 th respondent, the father of the deceased, has passed away subsequent to the rendering of the award and hence not entitled to get compensation. The learned counsel appearing for the claimants relying on the judgment in Kirti and another Etc. v. Oriental Insurance Company Ltd [ 2021 (1) KHC 196 (SC)], submitted that at the time of death, there were five legal heirs and subsequent death of the deceased’s dependent ought not be a reason for reduction of motor accident compensation. The claims and legal liabilities crystallize at the time of accident and the subsequent changes do not ordinarily impact the proceedings. Hence, I find that the appropriate deduction towards personal expenses is one-fourth and not one-third. Thus, the total compensation payable under the head loss of dependency has to be recalculated thus:- 19209 x 12 x 15 x ¾ = Rs. 25,93,215/-. The tribunal has already awarded an amount of Rs.23,05,080/-. Thus, there will be an additional amount of Rs. 2,88,135/- (Rupees Two lakh eighty eight thousand one hundred and thirty five only) under the afore head. 5.4. Funeral expenses - The learned standing counsel appearing for the insurance company submitted that an amount of Rs.20,000/- was awarded under the head funeral expenses, which is on a higher side. Thus, there will be an additional amount of Rs. 2,88,135/- (Rupees Two lakh eighty eight thousand one hundred and thirty five only) under the afore head. 5.4. Funeral expenses - The learned standing counsel appearing for the insurance company submitted that an amount of Rs.20,000/- was awarded under the head funeral expenses, which is on a higher side. Going by the judgment in Pranay Sethi (supra), the appellants are entitled only for an amount of Rs.15,000/-. Accordingly, I deduct an amount of Rs. 5,000/- (Rupees Five thousand only) under the afore head. 6. The appellant has also sought modification under the other heads. On a perusal of the award passed by the tribunal, I am of the opinion that the compensation paid under the other heads are just and reasonable. Therefore, I am not inclined to interfere with the award of the tribunal under the other heads. 7. Thus, the impugned award of the tribunal is modified as follows:- Sl.N o. Head of claim Amount claimed (in Rupees) Amount Awarded (in Rupees) Amount modified in appeal (in Rupees) Total compensat ion (in Rupees) 1. Loss of earning 4062000 - - - 2. Partial loss of earning - - - - 3. Transportation to hospital 5000 5,000 Not modified 5,000 4. Compensation for loss of expected future earnings 1500000 - - - 5. Damage to clothing 5000 2,000 Not modified 2,000 6. Funeral expenses 25000 20,000 -5,000 15,000 7. Medical expenses - 1,000 Not modified 1000 8. Compensation for loss of consortium - 1,00,000 1,00,000 2,00,000 9. Compensation for pain and sufferings 500000 15,000 Not modified 15,000 10. Compensation for loss of dependency 10,00,000 23,05,080 2,88,135 25,93,215 11. Compensation for loss of love and affection - 2,00,000 -2,00,000 Nil 12. Compensation for loss of estate - 1,00,000 85,000 15,000 Total 70,97,000 (Claim is limited to Rs. 52,00,00 0/- only) 27,48,080 98,135 28,46,215 Accordingly, the appeal and the cross objection are allowed in part and the cross objectors/claimants are awarded an additional compensation of Rs. 98,135/- (Rupees Ninety eight thousand one hundred and thirty five only) over and above the compensation awarded by the tribunal with interest @ 9% per annum from the date of petition till realization and proportionate costs. The appellant insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The appellant insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimants shall furnish copies of the PAN Card, AADHAAR Card and bank details before the appellant insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the claimants at the earliest in accordance with law.