The New India Assurance Co Ltd vs Samuel
2022 Latest Caselaw 8708 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
        THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                        MACA NO. 2818 OF 2016

AGAINST THE AWARD DATED 22.04.2016 IN OPMV 849/2009 OF ADDITIONAL
         MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/3RD RESPONDENT:


            THE NEW INDIA ASSURANCE CO LTD
            THE DIVISIONAL MANAGER, BEACH ROAD,KOLLAM,
            REPRESENTED BY ITS MANAGER,REGIONAL OFFICE, ERNAKULAM.

            BY ADV SRI.P.G.GANAPPAN


RESPONDENT/CLAIMANTS AND RESPONDENTS 1 & 2:


    1       SAMUEL, S/O.DANIEL,
            JIBU BHAVAN, KADIKA,KAITHAPARAMBU.P.O.,
            ENATHU VILLAGE,ADOOR TALUK.689 645.

    2       KUNJUMOL SAMUEL
            W/O.SAMUEL, DO.... DO.....

    3       JULIE SHAJI
            W/O.SHAJI, DO..... DO.......

    4       PHILIP MATHEW (DIED)
            S/O.T.V.MATHEW, KOLATHU VEEDU,NARIKKUZHY,
            KUMARAMPEROOR THEKKEKARA MURI,
            VADASSERIKKARA VILLAGE, RANNY TALUK.689 672.

    5       P.E.EASOW, S/O.EASOW,
            PALACKAMANNIL HOUSE,KOTTANADU.P.O.,
            MALLAPPALLY.689 584.

 *ADDL.6    SIBY MATHEWS PHILIP, S/O PHILIP MATHEW
            KOLATHU VEEDU, NARIKUZHY, KUMPALAMPOIKA PO
            SOUTHERN SIDE OF PATHANAMTHITTA
            SEETHATHODU ROAD, MOB 9947053462
            (*ADDL.R6 IS IMPLEADED AS PER ORDER DATED 06.10.2017 IN
            I.A.NO.3547/17 IN MAMCA 2818/16)

            BY ADVS.
            SRI.JOHN MATHEW
            SRI.ABRAHAM SAMSON
 MACA NO. 2818 OF 2016      ..2..


         SMT.LOVELY SAMSON
         SRI.MATHEW JOHN JMA
         SRI.VINU SASIDHARAN
         SRI.P.G.GANAPPAN, SC

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA NO. 2818 OF 2016       ..3..


                        JUDGMENT

The appellant is the 3rd respondent in O.P.(MV)

No.849/2009 on the files of the Additional Motor

Accident Claims Tribunal-III, Pathanamthitta. The

parties are referred to as per their status in the claim

petition unless otherwise specifically mentioned.

2. The petitioners are the legal heirs of deceased

Jibu Samuel, who died in a motor vehicle accident on

06.06.2009 at Adoor-Enathu road. According to them,

while Jibu was riding a motorcycle, a tipper lorry

bearing registration No.KL-03-H-2702 driven by the 1 st

respondent and owned by the 2nd respondent hit the

motorcycle and the deceased sustained serious injuries

and succumbed to the injuries on the same day. The

petitioners claimed an amount of Rs.25,00,000/- as

compensation for the death of the deceased. According

to the petitioners, the accident happened due to

negligence on the part of the 1st respondent.

MACA NO. 2818 OF 2016 ..4..

3. Before the Tribunal, respondents 1 and 2

remained ex parte. On the side of the petitioners, Exts.

A1 to A25 were marked and PW1 to PW3 were

examined. No evidence was adduced on the side of the

respondents. The 3rd respondent, the insurer of the

tipper lorry filed a written statement admitting that the

lorry was having a valid insurance policy at the time of

the accident, but disputing their liability on the ground

that there was violation of conditions of policy. It was

also contended that the deceased and two persons were

traveling on the motorcycle at the time of the accident

and that the deceased has contributed to the accident.

It was further contended that the amount claimed by

the petitioners is excessive and exorbitant.

4. The Tribunal found that the accident happened

due to the negligence of the driver of the Tipper lorry

and awarded an amount of Rs.26,72,500/- as total

compensation to the petitioners with 9% interest per MACA NO. 2818 OF 2016 ..5..

annum from the date of petition till realisation and

proportionate costs. The 3rd respondent was directed to

satisfy the award. The compensation awarded by the

Tribunal under different heads is as follows:

Sl. Head of claim Amount claim Amount No. (in rupees) awarded (in rupees)

1. Loss of dependency 39,00,000 22,95,000

2. Loss of estate 50,000

3. Transport to hosptial 2,000 2,500

4. Damage to clothes 2000

5. Others 3,82,000

6. Medical expenditure

7. Funeral expense 50,000 25,000

8. Pain and suffering 5,00,000 Nil

9. Loss of love, affection 2,00,000 3,00,000 and old age support

10 Extra nourishment

Total 47,06,000 26,72,500 limited to Rs.25,00,000) MACA NO. 2818 OF 2016 ..6..

5. Aggrieved by the quantum of compensation

awarded, the insurer has come up in appeal. It is

contended by the appellant that the notional income of

the deceased arrived at by the Tribunal is excessive

and the Tribunal went wrong in adding 50% of the

income towards future prospects. According to the

appellant, since the deceased was a self-employed

person without any fixed income, only 40% can be

awarded towards future prospects. The appellant has

also challenged the compensation awarded under the

heads loss of estate, funeral expenses and loss of love

and affection.

6. Heard the learned counsel for the appellant and

the learned counsel for the respondents.

7. According to the petitioners, the deceased was

an electrician in Dubai and was drawing 1170 Dirhams

per month at the time of his death. Ext.A4 salary

certificate of the deceased was not accepted by the MACA NO. 2818 OF 2016 ..7..

Tribunal and the Tribunal found that there is no

acceptable evidence that he was employed in any

permanent post in UAE. Accordingly, the Tribunal fixed

the notional income of the deceased as Rs.15,000/- per

month, which he would have received in India in 2009.

This Court, in Valsamma v. Binu Jose (2014 (1) KLT

10), has held that the standards to be applied while

assessing the income of a person who is not

permanently employed in a foreign country would be in

the context of Indian standards. In New India

Assurance Company Ltd. v. Divya [2021 (6) KLT

109], this Court on the basis of the ratio in Valsamma

(supra) fixed the monthly income of a Mason during

2014 as Rs.25,000/-. Going by the said standards, I am

not inclined to interfere with the income fixed by the

Tribunal and I take the monthly income of the deceased

as Rs.15,000/- for the purpose of computation of

compensation.

MACA NO. 2818 OF 2016 ..8..

8.The Tribunal added 50% of the said income

towards future prospects. The Tribunal went wrong in

adding 50% of the income towards future prospects as

the Tribunal found that there is no acceptable evidence

that the deceased was employed in any permanent post

in UAE. As per the decision of the Apex Court in

National Insurance Company Limited v. Pranay

Sethi and others [(2017) 16 SCC 680], only 40% can

be added towards future prospects. By adding 40% of

the income towards future prospects, the income of the

deceased would come to Rs.21,000/- [15,000+6,000].

Since the deceased was aged 27 years at the time of

accident, the multiplier to be adopted is '17'. The

deceased was a bachelor and ½ of his monthly income

has to be deducted towards personal and living

expenses. Therefore, the compensation for loss of

dependency is re-worked as Rs.21,42,000/- [21,000×12

x 17 x ½]. Since the Tribunal has awarded an amount of MACA NO. 2818 OF 2016 ..9..

Rs.22,95,000/- under the head compensation for 'loss of

dependency', the excess amount of Rs.1,53,000/-

[22,95,000-21,42,000] has to be deducted from the said

head.

9. No amount has been awarded by the Tribunal

under the head loss of consortium. However, an amount

of Rs.3,00,000/- has been awarded towards loss of love,

affection and old age support. Following the ratio in

Pranay Sethi (supra) followed in Jayasree N. and

others v. Cholamandalam MS General Insurance

Company Ltd [2021 (6) KHC 163], the petitioners 1

and 2 are entitled to Rs.44,000/- [40,000 + 10% hike

for three years] each for loss of consortium.

Accordingly, for loss of consortium, they are entitled for

Rs.88,000/- (44,000×2). The Hon'ble Supreme Court

has held in United India Insurance Co.Ltd. v.

Satinder Kaur [AIR 2020 SC 3076] that, when

compensation is awarded under the head loss of MACA NO. 2818 OF 2016 ..10..

consortium, there is no justification in awarding

compensation for loss of love and affection as a

separate head. Since the petitioners 1 and 2 are

entitled for Rs.88,000/- towards loss of consortium, no

further amount is to be awarded under the head loss of

love and affection. Therefore, Rs.3,00,000/- already

awarded under the head loss of love, affection and old

age support has to be deducted from the total

compensation.

10. Towards loss of estate, the Tribunal has

awarded an amount of Rs.50,000/-. Going by the

decisions in Pranay Sethi and Jayasree (supra), the

petitioners are entitled only for an amount of

Rs.16,500/- [15,000+10% hike for three years] under

the head loss of estate. Therefore, the excess amount of

Rs.33,500/- [50,000-16,500] has to be deducted from

the total compensation.

MACA NO. 2818 OF 2016 ..11..

11. Towards funeral expenses, the Tribunal has

awarded an amount of Rs.25,000/-. In the light of the

decisions in Pranay Sethi and Jayasree (supra), the

petitioners are entitled to get only an amount of

Rs.16,500/- [15,000+10% hike for three years] under

the head compensation for funeral expenses. Therefore,

an amount of Rs.8,500/- has to be deducted under the

said head.

In the result, the appeal is allowed as above

holding that the petitioners are entitled only for an

amount of Rs.22,65,000/- (Rupees twenty two lakhs

and sixty five thousand only) [26,72,500-

4,07,000(1,53,000+33,500+ 8,500+2,12,000) as total

compensation. It is submitted by the learned counsel

for the appellant that, pursuant to the order dated

08.09.2016 of this Court, the appellant had deposited

50% of the award amount before the Tribunal. The

appellant insurance company shall deposit the balance MACA NO. 2818 OF 2016 ..12..

amount as modified by this Court with 9% interest and

costs before the Tribunal, within a period of two

months from the date of receipt of a copy of this

judgment.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB/07/07/2022