Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 1297 (KER)

Girija Shaji v. Pratheep K. S. , S/o. Kumaran Nair

2025-05-20

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : ( SHOBA ANNAMMA EAPEN, J. ) This appeal has been filed by the claimants in OP (MV)No.1131 of 2015 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents herein are respondents before the Tribunal. 2. According to the appellants/claimants, on 02.06.2015, at 12.45 p.m., while the deceased was walking through the side of Erumely – Kanamala public road, a maruthi car bearing registration No.KL-34-B-4277 driven by the first respondent in a rash and negligent manner hit on the deceased. As a result of the accident, the deceased sustained serious injuries and later he succumbed to the injuries. The appellants approached the Tribunal claiming a total compensation of Rs.60,00,250/-, which is limited to Rs.30,00,250/-. 3. The first and second respondents are the owner-cum-driver and the insurer of the offending vehicle respectively before the Tribunal. Though notice was served on the respondents, the first respondent remained ex parte. The second respondent-insurer filed a written statement, admitting the insurance policy, but disputing the liability and quantum of compensation claimed. Exts.A1 to A8 were examined on the side of the appellant. No oral or documentary evidence was adduced on the side of the respondents. The Tribunal, after analysing the pleadings and materials on record, awarded a sum of Rs.18,96,000/- as compensation under different heads with interest @ 9% per annum from the date of petition, till realization, against the respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants have come up in appeal. 4. Heard the learned counsel for the appellants and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellants claims enhancement mainly under the following heads:- I. Notional Income The learned counsel for the appellants submitted that the deceased was working as a cashier in a restaurant in New Delhi and was earning an amount of Rs.28,000/- per month. The learned counsel further submits that as per Ext.A7 salary certificate, his monthly income was shown as Rs.22,400/-. The learned Standing Counsel appearing for the insurance company submitted that though Ext.A7 salary certificate was produced, the same was not proved through the employer, hence that cannot be accepted. However, it is a fact that the deceased was working in New Delhi, which is not specifically denied. The living expenses are more in Delhi. The learned Standing Counsel appearing for the insurance company submitted that though Ext.A7 salary certificate was produced, the same was not proved through the employer, hence that cannot be accepted. However, it is a fact that the deceased was working in New Delhi, which is not specifically denied. The living expenses are more in Delhi. Considering the afore facts, I find it appropriate to re-fix the monthly income at Rs.15,000/- per month. Accordingly, the notional monthly income of the deceased is refixed as Rs.15,000/- (Rupees Fifteen Thousand Only). II.Loss of dependency The learned counsel for the appellants submits that the Tribunal had wrongly taken the age of the deceased as “46”, whereas as per Ext.A8 postmortem certificate, the age of the deceased was shown as “45” years. On a perusal of the petition, it is seen that the age of the deceased was shown as “44” years. However, no document was produced to prove the same. A postmortem report can provide an estimate of the deceased’s age since the autopsy is done by experts. Considering Ext.A8 postmortem certificate, I am inclined to fix the age of the deceased as “45”. Since the age of the deceased is fixed as “45” years, the multiplier to be adopted is “14”. Since there are five legal heirs, the deduction to be made towards the personal expenses is 1/4th. The learned counsel for the appellants further submits that the appellants are entitled to add 25% of monthly notional income towards future prospects for computing the compensation under the head loss of dependency, as per the judgment in National Insurance Company Ltd. v. Pranay Sethi [ 2017 (4) KLT 662 (SC)]. Following the judgment in Pranay sethi (Supra) I am inclined to add 25% of the monthly income towards future prospects. This would come to Rs.18,750/- (15,000 + 25% of 15,000). Hence, the total compensation payable under the head loss of dependency has to be recalculated thus: Rs.23,62,500/- (18,750 x 12 x 14 x 3/4). The Tribunal had granted Rs.17,55,000/- under the said head. Thus, there will be an additional amount of Rs.6,07,500/- (Rupees Six Lakh Seven Thousand Five Hundred Only) under the afore head. III. Loss of consortium The learned counsel for the appellants submitted that towards the head loss of consortium, the Tribunal has awarded only an amount of Rs.40,000/-. The Tribunal had granted Rs.17,55,000/- under the said head. Thus, there will be an additional amount of Rs.6,07,500/- (Rupees Six Lakh Seven Thousand Five Hundred Only) under the afore head. III. Loss of consortium The learned counsel for the appellants submitted that towards the head loss of consortium, the Tribunal has awarded only an amount of Rs.40,000/-. Since there are five legal heirs, the appellants are entitled for a total amount of Rs.2,00,000/- towards the said head, as per the judgment in Pranay Sethi (supra). The learned Counsel for the appellants further submits that following the judgment in Pranay Sethi (Supra) the appellants are entitled for 10% enhancement towards loss of consortium on an amount of Rs.40,000/-. Since the accident was of the year 2015, I am not inclined to grant any enhancement of 10% towards loss of consortium. Since the Tribunal has granted an amount of Rs.40,000/- towards the said head, the appellants will be entitled for an additional enhancement of Rs.1,60,000/-, towards the afore head. The learned standing counsel appearing for the insurance company submitted that an amount of Rs.50,000/- was awarded by the Tribunal under the head 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. Accordingly, I delete the compensation granted under the head loss of love and affection and I award an additional amount of Rs.1,60,000/- (Rupees One Lakh Sixty Thousand Only) under the head loss of consortium. 6. Though the appellants claimed enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the Tribunal under other heads since it appears to be just and reasonable. 7. Thus, the impugned award of the Tribunal is modified as follows: Thus the impugned award is modified as under:- Sl. 7. Thus, the impugned award of the Tribunal is modified as follows: Thus the impugned award is modified as under:- Sl. No. Head of Claim Amount claimed (in Rs.) Amount awarded by the tribunal (in Rs.) Amount modified in appeal (in Rs.) Total compensation 1 Transport to hospital 8,000 5,000 (not modified) 5,000 2 Love and affection 5,00,000 50,000 -50,000 deleted 3 Loss of consortium 2,00,000 40,000 1,60,000 2,00,000 4 Funeral expenses 94,000 15,000 (not modified) 15,000 5 Loss of estate 2,00,000 15,000 (not modified) 15,000 6 Loss of dependency 42,00,000 17,55,000 6,07,500 23,62,500 7 Pain and sufferings 1,00,000 15,000 (not modified) 15,000 8 Damage to clothing 5,000 1,000 (not modified) 1,000 Total (claim limited to) 60,00,250 30,00,250 18,96,000 7,17,500 26,13,500 Accordingly, this appeal is allowed in part and the appellants/claimants are awarded an additional compensation of Rs. 7,17,500/- (Rupees Seven Lakh Seventeen Thousand Five Hundred Only) over and above the compensation awarded by the Tribunal with interest @ 9% per annum from the date of petition till realization with proportionate cost. The respondent 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 respondent 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 appellants at the earliest, in accordance with law.