BAJI SOMARAJAN, DHANALEKSHMI and ASWIN BAJI v. THE MANAGER, HDFC ERGO GENERAL INSURANCE COMPANY LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944 MACA NO. 1318 OF 2019** **AGAINST THE ORDER/JUDGMENT DATED 7.2.2017 IN OPMV 101/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM APPELLANT/S:** 1 BAJI SOMARAJAN, AGED 56 YEARS S/O.SOMARAJAN, V.A.GARDENS, ERAVIPURAM, KOLLAM691011. 2 DHANALEKSHMI, AGED 46 YEARS W/O.BAJI SOMARAJAN, V.A.GARDENS, ERAVIPURAM, KOLLAM-691011. 3 ASWIN BAJI, AGED 23 YEARS S/O.BAJI SOMARAJAN, V.A.GARDENS, ERAVIPURAM, KOLLAM-691011. BY ADVS. PRATHEESH.P SMT.S.REKHA KUMARI ## **RESPONDENT/S:** THE MANAGER, HDFC ERGO GENERAL INSURANCE COMPANY LTD., CHICAGO PLAZA, RAJAJI ROAD, NEAR KSRTC, COCHIN-35. BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.1318/2019 2 C.JAYACHANDRAN, J. -----------------------------------MACA No.1318 of 2019 ------------------------------------Dated this the 24[th] day of August, 2022 ## J U D G M E N T 1. This appeal is preferred by the legal heirs of the victim, who were the petitioners in O.P(M.V) No.101/2014 of the Motor Accidents Claims Tribunal, Kollam, seeking enhancement of the compensation amount granted under various heads. 2. Heard Sri.Pratheesh P., learned counsel for the appellants/petitioners and Sri.A.R.George, learned counsel for the respondent/Insurance Company. Perused the records. 3. The first point canvassed by the learned counsel for the appellants is with respect to the notional income reckoned at Rs.6,000/- only by the Tribunal. Learned counsel pointed out that the victim was a B.Tech student, who had completed his MACA No.1318/2019 3 course; however some of the papers were not cleared. He claimed a notional income of Rs.55,000/- per month, on the premise that the victim was a faculty member of INSIGHT, an educational institution run by S.N Educational Society for imparting entrance coaching. Besides, he was conducting tuitions also. Apart from the above, the appellants/petitioners had produced Ext.A8 appointment letter issued by ETERNITY LLC with a basic salary of AED 4000. However, the Tribunal took a ridiculously low amount of Rs.6,000/-, contended by the learned counsel for the appellants. Learned counsel also relied upon the judgment of the Hon'ble Supreme Court in Basanti Devi & Another v. New India Assurance Company Ltd. & Others [2021 ICO 2356] , wherein the Hon'ble Supreme Court has reckoned Rs.20,000/- in respect of an accident, which occurred in the year 2011 for a B.Tech Engineer in Computer Science. Another decision pressed into service is National Insurance Company v. Fathimath Zuhara [2016 KHC 691 : 2016(3) KLT 459] , wherein a Division Bench of this Court reckoned Rs.12,000/- for an engineering student in MACA No.1318/2019 4 respect of an accident which took place in the year 2005. The third judgment relied upon is one of a learned Single Judge of this Court in MACA No.146/2022 dated 19.1.2022, wherein this Court reckoned the notional monthly income at Rs.20,000/for an Engineer, in respect of an accident which took place in the year 2016. On such premise, learned counsel would contend that a minimum of Rs.20,000/- is liable to be reckoned towards the notional income. 4. Per contra, this was seriously opposed by the learned counsel for the Insurance Company by pointing out that the decision in Basanti Devi (supra) will not apply in the given facts, since in that case, the victim was a B.Tech degree holder in Computer Science and not a student, as in the present case. Learned counsel submitted that the decisions in Fathimath Zuhara (supra) and the one in MACA No.146/2022 cannot, as such, be followed in the instant case, because the notional income with respect to each case is to be fixed depending upon MACA No.1318/2019 5 the facts available. According to the learned counsel, although Rs.6,000/- fixed by the Tribunal is on the lower side, Rs.12,000/- towards the notional income will be reasonable. 5. Having heard the learned counsel appearing on both sides, this Court takes stock of the judgment of the Division Bench in Fathimath Zuhara (supra), wherein Rs.12,000/- was fixed in respect of an accident which took place in 2005. Similarly, in MACA No.146/2022, Rs.20,000/- is seen reckoned in respect of an accident of the year 2016. In Fathimath Zuhara (supra), the victim was an engineering student and the prospects of an engineering student in the context of his/her employment has been considered and reckoned. In the instant case, the victim was a student, who had completed B.Tech course, but had yet to clear a few papers. This was seriously emphasized by the learned counsel for the Insurance Company to point out that the prospects of a student with back papers is bleak and hence, the income reckoned in Fathimath Zuhara (supra) or in MACA No.146/2022 is not liable to be MACA No.1318/2019 6 reckoned at the instant case. This Court finds it difficult to endorse the submissions made by the learned counsel for the Insurance Company. For the mere fact that few back papers are there, the same cannot invariably tell harsh upon the prospects of an engineering student. In the instant case, there is prima facie evidence to show that he was a faculty member in INSIGHT, an institution imparting training in entrance. Despite examining the Principal of S.N Educational Society, the various reasons stated by the Tribunal in not accepting Ext.A10 certificate do not commend to this Court. It appears that the victim was a studious individual, who was inclined and interested in imparting training and education, albeit the fact that he had some back papers. At any rate, this Court is not persuaded to reckon the existence of back papers, in the context of ascertaining his notional income. In striking a balance between the judgments in Basanti Devi (supra), Fathimath Zuhara (supra) and MACA No.146/2022, this Court is of the opinion that it would be just and reasonable to fix the notional MACA No.1318/2019 7 monthly income of the victim at Rs.15,000/-. The point is concluded accordingly. 6. The second aspect is with respect to consortium, which has not been considered and granted by the Tribunal. Going by the judgment in National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], the dependent legal heirs are entitled to Rs.40,000/- each. This contention of the learned counsel for the appellants is only to be recognised. The victim is survived by his parents and they are entitled to Rs.40,000/- each. Learned counsel pointed out that going by the judgment in Pranay Sethi (supra) , 10% enhancement is contemplated in every three year, for which the appellants are entitled. This contention is also liable to be accepted. However, simultaneous with this, this Court notices that once compensation on account of consortium is granted, the compensation of Rs.25,000/granted under the head 'love and affection' is liable to be obliterated. It is so done. MACA No.1318/2019 8 7. The next bone of contention is with respect to compensation towards loss of estate, which was not granted by the Tribunal. A sum of Rs.15,000/- is stipulated, going by the judgment in Pranay Sethi (supra), coupled with 10% enhancement contemplated thereunder. This claim of the appellants is also liable to be accepted. 8. The last point canvassed by the learned counsel for the appellants is with respect to future prospects, wherein 30% only has been granted by the Tribunal, as against the entitlement of 40%. This contention is also liable to be accepted. 9. Learned counsel for the Insurance Company pointed out that a sum of Rs.25,000/- was given towards funeral expenses is on the higher side, when compared to the amount stipulated at Rs.15,000/- by the judgment in Pranay Sethi (supra). Likewise, a sum of Rs.5,000/- granted under the head 'pain and suffering' is also liable to be deleted. It is so done. MACA No.1318/2019 9 10. In the result, this M.A.C.A is allowed and the amount liable to be paid to the appellants/petitioners towards compensation is recalculated as indicated in the table herein below: |Sl.<br>No.|Head of claim|Amount<br>awarded<br>by<br>the<br>Tribunal(Rs)|Total <br>amount<br>after<br>enhancement in<br>appeal (Rs.)| |---|---|---|---| |1|Transport to Hospital|2000|2000| |2|Damage to cloth and<br>articles|1000|1000| |3|Funeral Expenses|25000|15000| |4|Compensation for pain<br>and suffering|5000|Nil| |5|Compensation for loss<br>of dependency|648000|16,20,000*| |6|Compensation for loss<br>of love and affection|25000|Nil| |7|Future prospects|194400|648000<br>(40% reckoned)| |8|Compensation for loss<br>of estate|Nil|16500| |9|Consortium|Nil|88000| ||Total|9,00,400|23,90,500| ||Amount enhanced =Rs.14,90,100/-(2390500 - 900400)||| *[15000x12x18x(1/2)] 11. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall MACA No.1318/2019 10 be granted set off. Since there was a delay of 674 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 13.12.2021 in C.M.Appl.No.1/2019. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. Sd/- C.JAYACHANDRAN JUDGE jg