Kuttiyamma vs Joy, S/o Varkey

A. Badharudeen, J

Award dated 07.01.2012 in O.P.(MV)No.975 of 2006 on the file of the Motor Accidents Claims Tribunal, Pala is under challenge in this appeal at the instance of the additional petitioners 2 to 4 who are the legal heirs of Devasia Thomas. Respondent herein are the respondents 1 to 3 before the Tribunal.

This matter, in fact, earlier considered by the Tribunal and award passed as early on 05.12.2008. However, the matter was taken in appeal and this Court remanded this matter for fresh consideration.

The crux of the appellants case is that one Devasia Thomas met with an accident on 02.09.2006 at about 7.30 p.m. at Erattupettta, when he was hit down by a Jeep bearing registration No.KL-5/G 8465 driven by the second respondent in a rash and negligent manner, who had driven the vehicle at the time of accident. Attributing negligence against the second respondent, Devasia Thomas preferred compensation for injuries. While on treatment, he passed away and his legal heirs brought on record. Rs.10,00,000/- claimed as compensation.

R3 filed written statement and admitted the policy but, liability was disputed pointing out absence of the driving license.

After remand, PW1 and PW2 were examined. A32 to A41 were marked in addition to Exts.A1 to A31 marked prior to remand. RW1 to RW4 and Exts.B1 and B2 were marked on the side of the respondents. Ext.X1 to X2(d) were also marked.

After discussing the evidence, the Tribunal granted Rs.6,13,957/- as total compensation. Now the appellants are aggrieved in the matter of quantum of compensation.

While canvassing increase, the learned counsel for the appellants submitted that Rs.4,000/- was the income claimed in the petition on the assertion that the deceased was an Agriculturist by profession. However, the Tribunal reduced the monthly income to Rs.3,000/-. It is submitted by the learned counsel for the appellants that following the ratio in [(2011) 13 SCC 236], Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., the monthly income at the rate of Rs.4,000/- per month is to be fixed in this case. This submission is not seriously opposed since in Ramachandrappa's case (Supra), the Honourable Apex Court fixed monthly income of a coolie during the year 2004 as Rs.4,500/-. By applying the said ratio, the income to be fixed is more than Rs.4,000/-. Considering the claim as Rs.4,000/-, the learned counsel pressed for fixing the same at Rs.4,000/- and the said plea is not seriously opposed by the learned counsel for the insurance company also. Accordingly, Rs.4,000/- is fixed as the monthly income.

Following the ratio in [2017 16 SCC 650], National Insurance Company Ltd. v. Pranay Sethi & Ors., 10% addition is permissible in this case where, the age of the deceased was 52. Therefore, the loss of dependency income is re-calculated as under;

Rs.4,400x12x11x2/3= 3,87,200/-

Out of which, Rs.2,64,000/- was granted by the Tribunal and the balance Rs.1,23,200/- more is granted under this head.

The learned counsel for the appellants pressed for granting amounts under the conventional heads following the ratio in Pranay Sethi's case (supra).

This submission also not opposed by the learned counsel for the insurance company, since the claim was based on the ratio in Pranay Sethi's case (supra).

On perusal of the award, I could notice that Rs.5,000/- alone is granted under the head funeral expenses, though Rs.15,000/- is entitled. Therefore, Rs.10,000/- more is granted under the head funeral expenses. Towards loss of consortium, Rs.35,000/- was granted by the Tribunal, though appellants 1 to 3 being the wife and children are entitled to get Rs.1,20,000/- (at the rate of Rs.40,000/- each). Therefore, Rs.85,000/-more is granted under the head loss of consortium.

It is submitted by the learned counsel for the insurance company that Rs.20,000/- was granted by the Tribunal under the head pain and sufferings and Rs.10,000/- was granted under the head loss of amenities. According to the learned counsel for the insurance company, the amounts granted under the said heads cannot be granted in view of the ratio in [AIR 2020 SC 3076], United India Insurance Co.Ltd. v. Satinder Kaur.

This submission appears to be convincing at the first blush treating the case as one of death. However, a second thought would convince that Devasia Thomas, who sustained injuries on 02.09.2006 died only on 01.07.2010. Thus, the above said Devasia Thomas died after struggling to survive for a period of three years and ten months. In such a case, the general principle of deduction under the heads pain and sufferings and loss of amenities cannot be applied, since the injured suffered pain and sufferings and also lost enjoyment of life during the period of treatment he struggled to survive. Thus, I am not inclined to reduce the said amounts.

In the result, this appeal is allowed in part.  It is ordered that the appellants are entitled to get enhanced compensation to the tune of Rs.2,18,200/-(Rupees Two lakh Eighteen Thousand Two Hundred only) at the rate of 7.5% interest granted by the Tribunal, excluding the amount already granted by the Tribunal, from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellants in equal proportion within two months from today and on deposit, the appellants are at liberty to release the same.