Kerala High Court

United India Insurance Company ... vs A.K.John on 13 December, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943
                         MACA NO. 2180 OF 2016
AGAINST THE AWARD DATED 16.03.2016 IN OPMV 433/2008 OF ADDITIONAL
        MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, THIRUVANANTHAPURAM
APPELLANT/2ND RESPONDENT:

            UNITED INDIA INSURANCE COMPANY LIMITED
            BANGALORE, NOW REPRESENTED BY ITS BRANCH MANAGER,
            REGIONAL OFFICE,"SHARANYA", HOSPITAL ROAD, KOCHI-11.

            BY ADVS.
            SRI.MATHEWS JACOB (SR.)
            SRI.P.JACOB MATHEW
            SMT.PREETHY R. NAIR



RESPONDENT/S:

    1       A.K.JOHN, S/O KURIAN, HOUSE NO.18,
            JAYAREKHA, TC 3/2314,CHITHRA NAGAR,
            PATTOM P.O.,THIRUVANANTHAPURAM -695 004.

    2       ROSAMMA JOHN WO.A.K.JOHN
            HOUSE NO.18, JAYAREKHA, TC 3/2314,
            CHITHRA NAGAR, PATTOM P.O.,
            THIRUVANANTHAPURAM -695 004.

    3       RINCY JOHN D/O.A.K.JOHN
            HOUSE NO.18, JAYAREKHA, TC 3/2314,
            CHITHRA NAGAR, PATTOM P.O.,
            THIRUVANANTHAPURAM -695 004.

            R1 TO R3 BY ADV SRI.M.SREEKUMAR




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2180 OF 2016       ..2..


                        JUDGMENT

This appeal is filed by the Insurance Company

challenging the compensation awarded by the Additional

Motor Accidents Claims Tribunal -IV, Thiruvananthapuram

in O.P.(MV) No.433 of 2008. The respondents in this appeal

were the petitioners in the claim petition, who are the

parents and sister of deceased Ricky John. The parties in

this appeal are referred to as per the status in the claim

petition.

2. The case of the petitioners is that on 05/06/2007 at

about 8.45 p.m, while the deceased was walking through

Sarjapura main road near Agrara Circle, Bangalore, a

BMTC bus bearing registration No. KA-01/F-1706 driven by

the 3rd respondent came in a rash and negligent manner

and hit the deceased. Even though he was rushed to the

hospital, he succumbed to the injuries. The deceased was MACA NO. 2180 OF 2016 ..3..

aged 24 and was working as an Accounts Manager in

WIPRO Infotech, earning Rs. 58,334/- per month. The 1 st

respondent is the owner of the bus bearing registration No.

KA-01/F-1706 and the 2nd respondent is its insurer. The

petitioners claimed an amount of Rs. 92,00,424/- as

compensation for the death of Sri. Ricky John, which was

limited to Rs.90,00,000/-.

3. Respondents 1 and 3 were set ex-parte. The 2nd

respondent insurer filed written statement admitting that

the vehicle had a valid insurance policy at the time of the

accident; but, disputed the age, occupation and income of

the deceased. It was further contended by the insurer that

the accident happened due to the negligence of the

deceased and the claim made by the petitioners under

various heads is excessive and exorbitant.

4. On the side of the petitioners, no oral evidence was

adduced; but Exts. A1 to A13 documents were marked. On MACA NO. 2180 OF 2016 ..4..

the side of the 2nd respondent, no evidence was adduced.

5. The Tribunal found that the accident happened due

to the negligence of the 3rd respondent driver. The Tribunal

awarded an amount of Rs.88,81,000/- as total

compensation with 9% interest per annum and

proportionate costs. The insurer was directed to satisfy the

award. Compensation was awarded under various heads as

follows:

Sl.    Head of Claim        Amount claimed         Amount awarded
No


1     Transport to             Rs. 2,000/-              Rs. 1,000/-
      hospital

2     Damage to                Rs. 3,000/-              Rs. 1,000/-
      clothing and other
      articles

3     Medical expenses        Rs. 25,000/-                  Nil

4     Funeral expenses        Rs. 10,000/-              Rs. 25,000/-

5     Pain and                Rs. 10,000/-              Rs. 10,000/-
      sufferings

6     Loss of                Rs. 91,23,424/-        Rs. 86,94,000/-
 MACA NO. 2180 OF 2016        ..5..


    dependency

7   Loss of love and      Rs. 25,000/-       Rs. 1 lakh
    affection

8   Loss of estate        Rs. 2,000/-       Rs. 50,000/-

    Total               Rs. 92,00,424/-     Rs. 88,81,000/-

6. According to the Appellant insurer, the amounts

awarded under various heads are excessive and without

any basis. The main dispute is regarding the income of the

deceased taken by the Tribunal for assessing the

compensation. The petitioners have claimed that the

deceased was an Accounts Manager in WIPRO Infotech,

Bangalore, earning Rs. 58,334/- per month. It is stated in

the claim petition that the salary stack applicable after 3

months from the date of joining is Rs.67,084/. In order to

prove the educational qualifications, occupation and

income of the deceased, the petitioners have produced

Exts.A8 to A13 documents. Ext. A8 is the Secondary School MACA NO. 2180 OF 2016 ..6..

Examination Certificate, Ext. A9 is the degree certificate (B

tech - Mechanical) and Ext.A10 is the mark list of the

deceased in P.G. Programme in International Business.

Ext.A11 is the appointment order and Ext.A12 is the salary

certificate of the deceased issued by his employer WIPRO

Infotech. Ext.A13 is the statement of benefits for a period

of 18 days issued by the employer. The Tribunal took the

monthly income of the deceased as Rs.67,083/- for

assessing the compensation.

7. Ext.A11 appointment order dated 03.05.2007 shows

the gross monthly salary stack applicable for the first 3

months from the date of joining as Rs.58,334/- and the

salary stack applicable after 3 months from the date of

joining as Rs.67,084/-. Unfortunately, the deceased could

work only for 18 days after he got appointment as

Accounts Manager in WIPRO Infotech. Therefore, the

income of the deceased as on the date of the accident has MACA NO. 2180 OF 2016 ..7..

to be taken as Rs.58,334/- per month and not Rs.67,084/-

as taken by the Tribunal. In Ext.A13 statement of benefits

for the period of 18 days the deceased worked in WIPRO

Infotech, Ranchi, the employer has assessed the benefits

taking in the account the salary stack as applicable for the

first 3 months from the date of joining. Ext.P12 salary

certificate dated 02-02-2016 issued by the employer shows

the monthly gross salary of the deceased as Rs.67,084/-

and the designation is shown as 'Senior Executive-Client

Solutions'. Probably this certificate reflects the salary of

the deceased which he would have drawn 3 months after

the date of joining. In National Insurance Co. Ltd. v.

Pranay Sethi [2017 (16) SCC 680], the Constitution

Bench of the Hon'ble Supreme Court observed that,

determination of income while computing compensation

has to include future prospects so that the method will

come within the ambit and sweep of just compensation as MACA NO. 2180 OF 2016 ..8..

postulated under S.168 of the M.V.Act. The Court held that

while determining the income, an addition of 50% of actual

salary to the income of the deceased towards future

prospects, where the deceased had a permanent job and

was below the age of 40 years, should be made. It was also

held that actual salary should be, actual salary less tax. It

is taking into consideration the status of the employee, his

educational qualification, potentiality to earn and all other

aspects an addition of 50% of actual salary to the income

of the deceased is fixed while computing future prospects.

Therefore, the Tribunal went wrong in taking the salary of

the deceased which he would have drawn after 3 months

after the date of joining as the income of the deceased and

adding 50% to that income towards future prospects.

Going by Exts.A11 and A13, the income of the deceased as

on the date of the accident has to be taken as Rs.58,334/-

per month. As per the decision of the Hon'ble Supreme MACA NO. 2180 OF 2016 ..9..

Court in Kalpanaraj and others v. Tamil Nadu State

Transport Corporation [(2015) 2 SCC 764], income tax

and professional tax has to be deducted from the salary of

the deceased while determining the monthly income. The

deceased had paid Rs.200/- as professional tax as per the

slab applicable in State of Karnataka. This amount has to

be deducted from the monthly salary of Rs.58,334/-. The

monthly salary after deduction of professional tax will

come to Rs.58,134/.The Tribunal has deducted 20% from

the income towards income tax as per the income tax rates

applicable for the concerned financial year. Therefore, the

actual salary of the deceased is re-fixed as Rs.46,508/-.

8. The deceased was aged 24 years at the time of

death. As held in Pranay Sethi (supra), an addition of 50%

of actual salary to the income of the deceased towards

future prospects, where the deceased had a permanent job

and was below the age of 40 years, should be made.

MACA NO. 2180 OF 2016 ..10..

Therefore, the income of the deceased adding 50% towards

future prospects would come to Rs.69,762/-

(Rs.46,508+23,254).

9. The deceased was a bachelor and he left behind his

parents and an unmarried sister. As per the decision of the

Hon'ble Supreme Court in Sarla Verma v. Delhi

Transport Corporation [(2009)(6) SCC 121], 50% of

the monthly income has to be deducted towards the

personal and living expenses in case of bachelors.

Therefore, after deduction of 50% towards the personal

and living expenses, the income of the deceased would

come to Rs.34,881/-.

10. Since the deceased was aged 24 years at the time

of death, the Tribunal has rightly taken the multiplier as

'18'. Therefore, under the head of loss of dependency, the

petitioners are entitled only for an amount of

Rs.75,34,296/- (34,881×12×18) as against Rs.88,81,000/-

MACA NO. 2180 OF 2016 ..11..

awarded by the Tribunal. An amount of Rs.13,46,704/-

(Rs.88,81,000- Rs.75,34,296) is therefore to be deducted

from the compensation awarded under the head of loss of

dependency.

11. The claim for medical expenses was rejected by

the Tribunal for want of evidence. It is seen from records

that the deceased succumbed to injuries on way to

hospital. In the absence of evidence, I am not interfering

with the findings of the Tribunal under the said head.

12. The Tribunal has awarded an amount of

Rs.10,000/- towards pain and sufferings. The petitioners

are not entitled for any amount under the said head in the

light of the decision in United India Insurance Co.Ltd. v

Satinder Kaur [AIR 2020 SC 3076]. So the amount of

Rs.10,000/- awarded under the said head is to be

deducted from the total compensation arrived at.

 MACA NO. 2180 OF 2016        ..12..


    13.   For    compensation    under      the   head    funeral

expenses, Rs.25,000/- has been awarded. As per the

decision in United India Insurance Co.Ltd. v Satinder

Kaur (supra) the petitioners are entitled to only

Rs.15,000/- under the head funeral expenses. Therefore,

an amount of Rs. 10,000/- has to be deducted from the

total compensation.

14. The petitioners were granted Rs.1,00,000/-

towards loss of love and affection. The petitioners are

entitled to Rs.1,20,000/- (Rs. 40,000/ each) towards loss of

consortium. The Hon'ble Supreme Court has held in

United India Insurance Co.Ltd. v Satinder Kaur

(supra), that when compensation is awarded under the

head loss of consortium, there is no justification in

awarding compensation for loss of love and affection as a

separate head. Therefore, since Rs.1,20,000/- is awarded

under the head loss of consortium, the petitioners are not MACA NO. 2180 OF 2016 ..13..

entitled for any amount under the head loss of love and

affection.

15. Towards loss of estate, an amount of Rs. 50,000/-

has been awarded by the Tribunal. In the light of the

decision in United India Insurance Co.Ltd. v Satinder

Kaur (supra), the petitioners are entitled only for an

amount of Rs.15,000/- towards loss of estate. Therefore,

Rs.35,000/- has to be deducted from the compensation

awarded under the said head.

16. Thus, on a re-appreciation of the pleadings and

materials on record and the law laid down in the aforecited

decisions, I hold that the compensation awarded by the

Tribunal in the impugned award is on the higher side and

has to be modified and reduced as held above and given in

the table below for easy reference.

 MACA NO. 2180 OF 2016           ..14..


Sl.       Head of Claim        Amount awarded        Amount
No                               by Tribunal      modified and
                                                 recalculated by
                                                    this Court

1     Transport to hospital      Rs. 1,000/-       Rs. 1,000/-

2     Damage to clothing         Rs. 1,000/-       Rs. 1,000/-
      and other articles

3     Medical expenses               Nil                -

4     Funeral expenses           Rs. 25,000/-     Rs.15,000/-

5     Pain and sufferings        Rs. 10,000/-           -

6     Loss of dependency       Rs. 86,94,000/-    Rs.75,34,296

7     Loss of love and          Rs. 1,00,000/-    Rs.1,20,000/-
      affection (modified as
      loss of consortium by
      this Court)

8     Loss of estate             Rs. 50,000/-     Rs.15,000/-

      Total                    Rs. 88,81,000/- Rs.76,86,296/-

17. In the result, the appeal is allowed holding that

the respondents/petitioners are entitled only for an amount

of Rs.76,86,296/- instead of Rs.88,81,000/- awarded by MACA NO. 2180 OF 2016 ..15..

the Tribunal with 9% interest per annum and proportionate

costs.

18. There is already an order dated 01.08.2016 passed

by this Court directing the appellant/2 nd respondent insurer

to deposit before the Tribunal 50% of the amount awarded

by the Tribunal and to disburse Rs.2,00,000/- each to

petitioners 1 and 2 and Rs.1,00,000/- to the 3 rd petitioner

and the balance amount to be kept in fixed deposit in a

Nationalised Bank in the joint names of the petitioners 1