High Court of KeralaSingle Judge2022-10-17The appeal is allowed; the appellants are entit...

Dhanya (W/o Late Vinodkumar) and others v. Jiju, Pappachan and The New India Assurance Company Limited

Case / Petition Number:MACA No. 1766 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji Monday
Judgment Date: 2022-10-17
Court Decision / Holding: Appeal allowed. Enhanced compensation amounts are awarded as per the detailed enhancements: loss of dependency increased to Rs.16,12,800; funeral expenses elevated to Rs.16,500; loss of consortium to Rs.1,76,000; loss of estate to Rs.16,500; pain and suffering and loss of love and affection heads are deleted. Total enhanced amount: Rs.7,22,864. The Insurance Company shall pay interest on the Tribunal-awarded amounts at the rate ordered in the impugned award and, on the enhanced amounts, at 8% from the date of petition. If already paid, set-off shall apply. Bank details must be provided for NEFT/RTGS transfer within one month of certified copy; otherwise no interest shall accrue on the enhanced amount post-deadline. If the insurer fails to deposit, interest will run at the Tribunal’s rate from the petition date.
Final Disposition: The appeal is allowed; the appellants are entitled to enhanced compensation and related directions as stated above; NEFT/RTGS transfer within specified time; interest as stated.

Parties to the Case

Appellants / Petitioners

Dhanya, W/o Late Vinodkumar, Dhanya Nivas, Asramam Ward, Aryad South Village, Alappuzha
Yesodhar? Dhanya Nivas, Aryad South Village, Alappuzha
Indrajith, S/o Late Vinodkumar, Dhanya Nivas, Asramam Ward, Aryad South Village, Alappuzha
Sathrajith, S/o Late Vinodkumar, Dhanya Nivas, Asramam Ward, Aryad South Village, Alappuzha

Respondents

Jiju, S/o. Pappachan, Thekkem House, South Aduvassery, North Paravoor, Ernakulam-683578
Pappachan, Thekkem House, South Aduvassery P.O., North Paravoor, Ernakulam-683578
The New India Assurance Company Limited, Divisional Office, Aluva, rep by its Manager

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Sunil J. Chakkalackal
• Sri. R. Suraj Kumar

Counsels for Respondents

• Sri. Lal George
• Sri. A. T. Anilkumar
• Smt. V. Shyaja

Case Synopsis & Summary

Vinod Kumar, who died in a motor vehicle accident on 20 December 2007, left legal heirs who filed an Original Petition before the Additional Motor Accidents Claims Tribunal in Alappuzha seeking compensation for death. The Tribunal awarded Rs. 11,01,936 with interest at 7.5% from the date of petition. The appellants challenged, contending that the Tribunal erred by deducting one-third for personal and living expenses despite four dependants and by not awarding future prospects of Rs. 40,000 per month in computing dependency. They also argued the Tribunal undervalued several heads of compensation including loss of dependency, funeral expenses, loss of consortium, and estate, and erroneously awarded portions for pain and suffering and love and affection while not awarding adequate sums. The respondents denied the imputations. The High Court reviewed the evidence, noting the deceased’s age (31–35) and income (Rs. 8,000 per month) and held the proper multiplier as 16. It applied a 40% addition for future prospects, yielding Rs. 11,200 per month, and calculated loss of dependency as Rs. 11,200 × 12 × 16 × 3/4 = Rs. 16,12,800, deducting the Tribunal’s Rs. 10,23,936 to arrive at a balance. Enhancements were made across heads: funeral expenses to Rs. 16,500; loss of consortium to Rs. 1,76,000; loss of estate to Rs. 16,500; pain and suffering and love-and-affection head removed. The total enhanced award: Rs. 7,22,864. The appeal was allowed; the Insurance Company must pay the enhanced amount with 8% interest on the enhanced portion and NEFT/RTGS transfer within the stipulated period, with other Tribunal findings upheld.

Legal Doctrines & Maxims

Pain and suffering cannot be awarded in death cases (Sarla Verma v. Delhi Transport Corporation)
Minimum funeral expenses guidance as per Pranay Sethi (National Insurance Co. Ltd. v. Pranay Sethi)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal erred in deducting one-third for personal and living expenses rather than one-fourth since there were four dependants. They assert that future prospects at Rs.40,000 per month should be added to the deceased’s income for dependency calculations. They also challenge the Tribunal’s determinations on other heads of compensation and seek higher sums, especially for loss of dependency, funeral expenses, loss of consortium, and loss of estate, while seeking removal of non-compensable heads such as pain and suffering and overly restrictive awards for love and affection.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	2017 (16) SCC 680	Positive	Used to fix the minimum award for funeral expenses; supports Rs.16,500 plus 10% increase as of Pranay Sethi.
Sarla Verma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	Applied to hold that pain and suffering cannot be awarded in death cases; influenced the court’s exclusion of this head.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** **MACA NO. 1766 OF 2013** **AGAINST THE ORDER/JUDGMENTOPMV 528/2008 OF ADDITIONAL DISTRICT COURT & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ALAPPUZHA.** ## **APPELLANTS/PETITIONERS:** 1 DHANYA, W/O.LATE VINODKUMAR, R/A.DHANYA NIVAS, ASRAMAM WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA 2 YESODHARA, DHANYA NIVAS, ASRAMAM WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA, NOW R/A.ELENJIMOOTTIL, LEKSHMI THOPPIL, PALLANA P O, ALAPPUZHA 3 INDRAJITH, S/O.LATE VINODKUMAR, R/A.DHANYA NIVAS, ASRAMAM WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA 4 SATHRAJITH, S/O.LATE VINODKUMAR, R/A.DHANYA NIVAS, ASRAMAM WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA BY ADVS. SRI.SUNIL J.CHAKKALACKAL SRI.R.SURAJ KUMAR ## **RESPONDENTS/RESPONDENTS 1 TO 3:** 1 JIJU, S/O.PAPPANCHAN, THEKKEN HOUSE, SOUTH ADUVASSERY, NORTH PARAVOOR, ERNAKULAM-683578 2 PAPPACHAN, THEKKEN HOUSE, SOUTH ADUVASSERY P O, NORTH PARAVOOR, ERNAKULAM-683578 3 THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ALUVA,REP BY ITS MANAGER MACA NO. 1766 OF 2013 -2- BY ADVS. SRI.LAL GEORGE SRI.A.T.ANILKUMAR SRI.A.T.ANILKUMAR SMT.V.SHYLAJA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1766 OF 2013 -3- ## **JUDGMENT** The legal heirs of one Vinod Kumar who died in a motor accident on 20.12.2007 are the appellants. They filed Original Petition before the Additional Motor Accidents Claims Tribunal claiming compensation for the death of Sri.Vinodkumar. 2. On 20.12.2007 about 8 p.m. the deceased was hit by a mini lorry bearing registration No.KL-07/ C 8494 driven by the first respondent in a rash and negligent manner from south to north on the motor cycle bearing registration No.KL-29/3119 ridden by the deceased in the same direction. Respondent Nos.1 and 2 were _ex parte_ before the Tribunal. The third respondent alone filed a written statement admitting the insurance policy of the offending mini lorry. The negligence attributed to the first respondent was denied. The compensation claimed is exorbitant and prays for dismissal of the petition. The Tribunal relying on the oral evidence of MACA NO. 1766 OF 2013 -4- PW1 and Exhibits A1 to A6 awarded total compensation of Rs.11,01,936/- with interest at the rate of 7.5% from the date of petition till realisation. He is aggrieved by the compensation awarded by the Tribunal on various heads, hence this appeal is filed. 3. The main contention raised by the counsel for the appellants is that the Tribunal deducted 1/3[rd] towards personal and living expense instead of 1/4, since the claimants are four in number. Moreover, future prospects at the rate of Rs.40,000/- was also not awarded in computing compensation for loss of dependence. Regarding the other heads also reasonable compensation is not awarded. 4. The appellants are the legal heirs of the deceased Vinodkumar. They are in four in number. Hence the deduction for personal and living expenses should be 1/4[th] instead of 1/3[rd] . The Tribunal has taken his monthly income as Rs.8,000/-. Since the deceased MACA NO. 1766 OF 2013 -5- was between the age 31 to 35 at the time of accident the proper multiplier to be applied is 16 which the Tribunal has taken it correctly. To the monthly income of Rs.8,000/- 40% has to be added towards future prospects and the same would come to Rs.11,200/-. So the compensation for loss of dependency can be worked out as Rs.11,200 x 12 x 16 x 3/4 = 16,12,800/- less Rs.10,23,936/awarded by the Tribunal i.e., Rs.5,88,864/-. Towards funeral expenses against the claim of Rs.10,000/-, Rs.5,000/- was awarded. Relying decision **National Insurance Company Ltd. v. Pranay Sethi [2017 (16) SCC 680]** the minimum amount to be awarded under the said head is Rs.15,000/- plus 10% increase i.e., Rs.16,500/- less Rs.5,000/- awarded by the Tribunal, i.e., Rs.11,500/-. As far as loss of consortium is concerned only Rs.10,000/- was awarded against the claim of Rs.1,00,000/-. 5. The appellants 1 to 4 are the wife, mother and MACA NO. 1766 OF 2013 -6- children of the deceased. They are entitled for loss of consortium at the rate of Rs.40,000/- each plus 10% rupees. Hence they are entitled to Rs.44,000/- each less what is awarded by the Tribunal i.e., 1,76,00010,000=1,66,000. When loss of consortium is awarded loss of love and affection cannot be granted by the Tribunal. Hence the amount of Rs.50,000/- awarded by the Tribunal against loss of love and affection is set aside. In **Sarla Verma Vs. Delhi Transport Corporation (2010 (2) KLT 802 (SC))** it is held that in death cases compensation for pain and suffering cannot be awarded. Hence the amount of Rs.10,000/- awarded under the head pain and suffering is set aside. Loss of estate is another head the legal heirs are entitled for at the rate of Rs.15,000/- plus 10% increase. Hence under the head of loss of estate the appellants are entitled to Rs.16,500/-. Accordingly, the following enhancements are made MACA NO. 1766 OF 2013 -7- ## to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded by<br>Tribunal(Rs)|Amt. Enhanced<br>in appeal(Rs)| |---|---|---|---| |1|Loss of dependency|10,23,936/-*|16,12,800/-| |2|Funeral expenses|5,000/-|16,500/-| |3|Loss of consortium|10,000/-|1,76,000/-| |4|Loss of love and affection|50,000/-|-----| |5|Pain and sufferings|10,000/-|-----| |6|Loss of estate|----|16,500/-| ||TOTAL|10,98,936/-|18,21,800/-| |Total amount enhanced 18,21,800||– 10,98,936 = 7,22,864/-|| (shown as Rs.10,23,936/- under loss of estate by the Tribunal in the tabular column.) In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.7,22,864/(Rupees Seven lakh twenty two thousand eight hundred and sixty four only). 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 8% from the date of petition. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the MACA NO. 1766 OF 2013 -8- same shall be granted set off. 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 shall run at the rate ordered by the Tribunal from the date of petition. **==> picture [17 x 12] intentionally omitted <==** **BASANT BALAJI JUDGE** vv