Anns Sen and others v. IFFCO Tokio General Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944** **MACA NO. 3384 OF 2015** **AGAINST THE AWARD DATED 04.05.2015 IN OP(MV)NO.1180/2010 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - IV, PATHANAMTHITTA** ## **APPELLANT/2ND RESPONDENT:** **IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED NOW REPRESENTED BY ITS LEGAL MANAGER, IFFCO BHAVAN, THOTTAKKAT TOAD, KOCHOI – 682 011.** **BY ADVS. SRI. MATHEWS JACOB (SR.) SRI. P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 ANNSA SEN W/O. LATE JESS JOSEPH CHEMMARIKKATTU HOUSE, KOZHENCHERRY EAST P. O, KOZHENCHERRY, REPRESENTED BY HER POWER OF ATTORNEY HOLDER 3RD RESPONDENT, PIN – 689 320. 2 K.J JOSEPH, S/O. K.G JOSEPH, CHEMMARIKKATTU HOUSE, KOZHENCHERRY EAST P. O, KOZHENCHERRY – 689 320. 3 JOYCE JOSEPH, W/O. K.J JOSEPH, CHEMMARIKKATTU HOUSE, KOZHENCHERRY EAST P. O, KOZHENCHERRY – 689 320.** **SRI. A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA No.3384 OF 2015** **2** ## **JUDGMENT** This appeal is preferred by the Insurance Company, the 2[nd] respondent in OP (MV) No.1180 of 2010 on the file of the Additional Motor Accidents Claims Tribunal – IV, Pathanamthitta. The parties in this appeal are referred to as per their status in the claim petition unless otherwise specifically mentioned. 2. The claim petition was preferred by the wife and parents of Jess Joseph, who died in a motor vehicle accident that took place on 14.06.2010. According to the petitioners, while Jess Joseph was travelling in a car bearing Registration No.KL-30 A- 2637, it fell into a canal and he sustained serious injuries and succumbed to the injuries on the way to hospital. The petitioners contended that the accident **MACA No.3384 OF 2015** **3** happened due to the negligence of the driver of the car. The petitioners claimed an amount of Rs.1,50,30,000/(which was limited to Rs.50,00,000/-) as compensation for the death of Jess Joseph. 3. Exts.A1 to A11 were marked on the side of the petitioners. The 2[nd] petitioner, the father of the deceased was examined as PW1. PW2 was examined to prove the occurrence of the accident. No evidence was adduced on the side of the respondents. 4. Before the Tribunal, the Insurance Company filed a written statement admitting that the vehicle was covered by a valid policy of insurance. However, it was contended that the amount claimed as compensation is excessive. 5. The Tribunal found that the accident happened due to the negligence of the driver of the car and awarded an amount of Rs.54,47,000/- with **MACA No.3384 OF 2015** **4** 9% interest per annum from the date of petition till realisation. The compensation awarded by the Tribunal under various heads is as follows:- **==> picture [393 x 359] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No claimed (Rs.) Awarded<br>(Rs.)<br>1 Loss of dependency 1,44,00,000 51,00,000<br>2 Pain and sufferings 25,000 20,000<br>3 Funeral Expenses 50,000 25,000<br>4 Transport to 1000 1000<br>hospital<br>5 Damage to Clothes 2000 1000<br>6 Loss of love and 2,00,000 1,00,000<br>affection<br>7 Loss of Consortium 1,50,000 1,00,000<br>8 Loss of estate 1,00,000 1,00,000<br>-<br>9 Others 1,02,000<br>1,50,30,000/- 54,47,000<br>Total is limited to<br>Rs.50,00,000<br>**----- End of picture text -----**<br> 6. The Insurance Company was directed to satisfy the award. 7. The appeal is preferred by the insurer **MACA No.3384 OF 2015** **5** contending that the amounts awarded under various heads are excessive and exorbitant. 8. According to the appellant, since the claim of the petitioners in the original petition is that the deceased was earning an amount of Rs.15,000/- per month, the Tribunal ought not to have taken Rs.25,000/- as his notional income. It is also contended that the Tribunal has added 50% of the income towards future prospects, whereas, only 40% can be added towards future prospects and that the amounts awarded towards funeral expenses, pain and sufferings and other conventional heads are also excessive. 9. Heard Sri.Mathews Jacob, the learned Senior Counsel for the appellant/insurer and Sri.A.N.Santhosh, the learned counsel for the respondents/petitioners. 10. The deceased was a Post Graduate in **MACA No.3384 OF 2015** **6** Pharmacy holding M.Pharm Degree. In the absence of cogent evidence as to the income of the deceased, the Tribunal took the income of the deceased notionally for the purpose of computation of compensation. Taking guidance from the decision of the Hon'ble Madras High Court in **Managing Director, Metropolitan Transport Corporation Ltd.** _**v.**_ **S.Mariyam Beevee and another** [2014 ACJ 2693], the Tribunal has taken the notional monthly income of the deceased, a Pharmacist, as Rs.25,000/-. It is to be noted that, the deceased in the said decision was an MBBS student. PW1, the father of the deceased, has deposed before the Tribunal that, the deceased was working as a Pharmacist in a pharmaceutical firm and was earning an amount of Rs.30,000/- and that the deceased was making all preparations to go to United States of America where his wife was working. The Tribunal **MACA No.3384 OF 2015** **7** did not accept the income as claimed in the claim petition or as per the testimony of PW1. As stated, the deceased in **S.Mariyam Beevee** (supra) was an MBBS student and in the case on hand, the deceased was a Pharmacist. Therefore, the dictum laid down in the said case cannot be taken as guidance to fix the notional income of a Pharmacist. However, taking note of the fact that the deceased was a Post Graduate in Pharmacy, I fix the notional income of the deceased as Rs.20,000/-. 11. The Tribunal has added 50% of the income towards future prospects. As per the dictum laid down in **National Insurance Company Limited** _**v**_ **. Pranay Sethi and Ors.** [2017 (4) KLT 662], only 40% of the income can be added towards future prospects since there is no evidence to show that the deceased was permanently employed. Accordingly, the income of the deceased will come to Rs.28,000/- **MACA No.3384 OF 2015** **8** (20,000+8,000). The deceased was aged 29 years as on the date of accident. So the multiplier to be adopted is 17. There are 3 dependents and therefore, 1/3 of the income has to be deducted towards personal living expenses of the deceased. Thus, the compensation for loss of dependency is refixed as Rs.38,08,000/- (28,000×12×17x2/3). Since an amount of Rs.51,00,000/- has been awarded under the head loss of dependency, an amount of **Rs.12,92,000/-** (51,00,000-38,08,000) has to be deducted from the said head. 12. Towards pain and sufferings, an amount of Rs.20,000/- has been awarded by the Tribunal. The Hon'ble Supreme Court in **United India Insurance Co. Ltd.** _**v**_ **. Satinder Kaur @ Satwinder Kaur and Others** [2020 (3) KHC 760] has held that the petitioners are not entitled for any amount under the head pain and sufferings. So an amount of **MACA No.3384 OF 2015** **9** **Rs.20,000/-** has to be deducted from the total compensation. 13. Towards funeral expenses, an amount of Rs.25,000/- has been awarded. The petitioners are entitled only for an amount of Rs.15,000/- in the light of the decision in **Pranay Sethi** (supra). Accordingly, an amount of **Rs.10,000/-** (25,000 – 15,000) has to be deducted from the amount awarded towards funeral expenses. 14. The Tribunal has awarded Rs.1,00,000/each under the heads loss of love and affection and loss of consortium. The petitioners, being the wife and parents of the deceased, are entitled for an amount of Rs.1,20,000/- (40,000×3) towards compensation for loss of consortium. Since the Tribunal has awarded only Rs.1,00,000/- under the head loss of consortium, the petitioners are entitled for an enhanced amount of **Rs.20,000/-** under the **MACA No.3384 OF 2015** **10** said head. In **Satinder Kaur** (supra), the Apex Court held that when compensation is awarded under the head loss of consortium, no separate compensation is payable under the head loss of love and affection. Accordingly, an amount of **Rs.1,00,000/-** has to be deducted from the total compensation. 15. For loss of estate, an amount of Rs.1,00,000/- has been awarded by the Tribunal. As per the decision of the Hon'ble Supreme Court in **Pranay Sethi** (supra), the petitioners are entitled only for an amount of Rs.15,000/- as compensation for loss of estate. Therefore, an amount of **Rs.85,000/-** (1,00,000-15,000) has to be deducted from the said head. 16. The Tribunal has awarded just and reasonable compensation under other heads. 17. Accordingly, the petitioners will be entitled **MACA No.3384 OF 2015** **11** for an amount of **Rs.39,60,000/-** (54,47,000 +20,000) – (12,92,000 + 20,000 + 10,000 + 1,00,000 + 85,000)] as compensation with 9% interest per annum from the date of petition till realisation with costs. 18. It is submitted by the learned counsel for the respondents that, the 1st respondent is settled abroad and Bank details of the 1st respondent cannot be obtained and provided for the purpose of deposit of the amount and the apportionment of the award amount as ordered by the Tribunal may be varied. It will be open to respondents to make necessary application before the Tribunal in this regard and Tribunal may pass appropriate orders in accordance with law. 19. It is submitted that the Insurance Company has already deposited 50% of the award amount before the Tribunal as per the directions of this Court **MACA No.3384 OF 2015** **12** in the order dated 08.12.2015 and the petitioners were permitted to withdraw the amount. The appellant Insurance Company shall deposit the balance amount as modified by this Court within a period of two months from the date of receipt of a copy of this judgment. The amount in respect of the 1st respondent shall be released after the Tribunal passes appropriate orders with regard to the apportionment of the award amount on any application to be filed by the respondents. The appeal is allowed as above. **Sd/-** **MURALI PURUSHOTHAMAN** **JUDGE** SPR