High Court of KeralaSingle Judge2022-08-17Appeal allowed; enhanced compensation granted; ...

Elizabeth and Others v. New India Insurance Co. Ltd.

Case / Petition Number:MACA No. 2161 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji
Judgment Date: 2022-08-17
Court Decision / Holding: The appeal is allowed; enhanced compensation of Rs. 2,19,008 with 8% interest from the date of petition, subject to any set-off for amounts already paid. Payments to be transferred via NEFT/RTGS within one month of receipt of a certified copy, with no interest on the enhanced amount if the bank details are not supplied in time.
Final Disposition: Appeal allowed; enhanced compensation granted; directions for payment and set-off; NEFT/RTGS transfer within one month; no interest after the stipulated period if bank details are not provided.

Parties to the Case

Appellants / Petitioners

Elizabeth (wife of Jose), Reshma, Renjitha (deceased), Sharika, Rettin

Respondents

New India Insurance Co. Ltd., Branch Office, Delta Centre, M.C. Road, Angamal y P.O.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Reji George
• Smt. Anupama Johny

Counsels for Respondents

• Sri P.G.Ganappan

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No. 2161 of 2015) arising from O.P.(M.V.) No. 755 of 2010 before the Motor Accidents Claims Tribunal, Perumbavoor. The appellants—Elizabeth (wife) and her children along with others, as legal heirs of Jose (deceased)—sought compensation for death on 30.12.2009 in a road accident involving a motorcycle rider. The Tribunal awarded Rs. 8,14,105 with 9% interest from the date of petition. The Insurance Company contested, contending the death occurred due to the deceased’s own negligence and challenged the quantum. The High Court, while allowing the appeal in part, reassessed several heads of the compensation, applying legal principles from Ramachandrappa for notional income, and Pranay Sethi to cap future prospects. It fixed the monthly notional income at Rs. 7,000 (instead of Rs. 4,500), and held that future prospects should be 10% (not 15%) given the deceased’s self-employed status, in line with Pranay Sethi’s guidelines. The Court reworked the computations: permanent disability Rs. 7,62,300; loss of estate Rs. 16,500; loss of consortium Rs. 1,76,000; funeral expenses Rs. 16,500; and eliminated Rs. 1,00,000 awarded for love and affection. The aggregate enhanced compensation became Rs. 2,19,008 with 8% interest, payable after set-off of any prior payments, via NEFT/RTGS within a stipulated period. The appeal was thus allowed with enhanced compensation to the appellants.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the deceased, aged about 52, was a carpenter earning around Rs. 8,000 per month. The Tribunal’s notional income of Rs. 4,500 was too low; guided by Ramachandrappa, the notional income should be Rs. 7,000. They urged 15% as future prospects (contrasting with Pranay Sethi’s cap). They pressed for higher compensation across heads—permanent disability, loss of estate, funeral expenses, and especially loss of consortium for four dependents (Rs. 40,000 each, escalated 10% every three years per Magma); they challenged the Tribunal’s award of Rs. 25,000 for funeral and Rs. 1,00,000 for love/affection as excessive, and sought upholding or enhancement with appropriate set-offs and interest.

Contentions of Respondents

The insurer argued the accident occurred due to the deceased driving without a license, rendering the claim unfounded and the insurer not liable; it urged that the Tribunal’s compensation was just and proper and resisted substantial enhancements beyond the established cap under Pranay Sethi and related authorities.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	[(2011) 13 SCC 236]	Positive	Used to justify increasing the deceased’s notional monthly income to Rs. 7,000, replacing the Tribunal’s lower figure.
National Insurance Company v. Pranay Sethi	[(2017) 16 SCC 680]	Positive	Applied to cap future prospects at 10% for a self-employed deceased, guiding the computation of actual earnings and dependency.
Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram & Others	[(2018) 18 SCC 130]	Positive	Cited for loss of consortium awards and the methodology of escalation in awards for dependents.

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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** **WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944** ## **MACA NO. 2161 OF 2015** ## **OPMV 755/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR APPELLANT/S:** 1 ELIZABETH,AGED 49 YEARS W/O.JOSE, KOLENCHERY HOUSE, NEELEESWARAM, MALAYATTOOR. 2 RESHMA,AGED 26 YEARS,D/O.JOSE, KOLENCHERY HOUSE, NEELEESWARAM, MALAYATTOOR. 3 RENJITHA (DIED) ***** AGED 24 YEARS,D/O.JOSE, KOLENCHERY HOUSE, NEELEESWARAM, MALAYATTOOR. 4 SHARIKA,D/O.JOSE, KOLENCHERY HOUSE, NEELEESWARAM, MALAYATTOOR. 5 RETTIN,S/O.JOSE, KOLENCHERY HOUSE, NEELEESWARAM, MALAYATTOOR. BY ADVS.SRI.REJI GEORGE SMT.ANUPAMA JOHNY ## **RESPONDENT/S:** NEW INDIA INSURANCE CO. LTD.,BRANCH OFFICE, DELTA CENTRE, M.C.ROAD, ANGAMALY P.O. BY ADV SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ***** RECORDED AS PER MEMO DATED 20.7.2022 IN MACA 2161/15. **MACA NO. 2161 OF 2015** ## **JUDGMENT** (Dated this the 17[th] day of August 2022) The appellants are the petitioners in O.P.(M.V.) No.755 of 2010 on the files of the MACT, Perumbavoor. They claimed Rs.10,00,000/- as compensation for the death of one Jose, who is husband of the first petitioner and father of petitioner Nos.2 to 4. 2. On 30.12.2009 at about 7.45 pm, the deceased was travelling in a motor cycle bearing reg. no.KL-17/C 4985 as a pillion rider driven by the 2[nd] respondent in a rash and negligent manner along Aluva – Ernakulam NH road. When the rider of the motor applied sudden brake, the deceased was thrown out to the road and sustained serious injuries and he succumbed to the injuries while undergoing treatment. The accident happened due to the negligence on the side of the 2[nd] respondent and so, the third respondent being Insurance Company is liable to pay compensation. 3. Respondent Nos.1 and 2 remained exparte. The **MACA NO. 2161 OF 2015** -3- third respondent filed written statement contending that the deceased himself was driving the motor cycle without holding a license to drive. The claim was without any _bonafide._ The age, income and occupation of the deceased were also denied. Since the accident happened due to the negligence of the deceased himself, the insurance company is not liable to pay any compensation. 4. The Tribunal, on an appreciation of facts and circumstances of the case and relying on Exts.A1 to A15 and B1 and the oral evidence of PW1, awarded a total compensation of Rs.8,14,105/- with 9% interest from the date of petition. It is aggrieved by the quantum of compensation awarded, this appeal is filed. 5. The learned counsel for the appellant had produced a memo which shows that the 3[rd] appellant died on 13.5.2018. The same is recorded. 6. Heard the counsel for the appellants and learned **MACA NO. 2161 OF 2015** -4- standing counsel. 7. The counsel for the appellants, Adv.Anupama Johny, submits that the deceased was aged 52 years at the time of accident and he was a carpenter earning Rs.8,000/per month. But the Tribunal fixed the notional monthly income only as Rs.4,500/-. Going through the decision in **v.** reported **Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the notional monthly income of a coolie worker, who met with an accident which happened in the year 2009, is to be taken as Rs.7,000/-. Accordingly, I fix the monthly notional income of the deceased as Rs.7,000/-. The tribunal has awarded future prospects at 15%. The deceased was aged 52 years and being self employed below the age of 60 years, relying on the decision in _**National Insurance Company v. Pranay Sethi**_ ( _**2017 (16) SCC 680),**_ only 10% future prospectus can be awarded. So, the monthly income would be Rs.7,000+700(7,000x10/100)=Rs.7,700/-. The Tribunal has **MACA NO. 2161 OF 2015** -5- correctly taken the multiplier, as 11. Since the number of dependents in the family are 4 in number, the Tribunal has deducted ¼[th] of the income towards living expenses. Accordingly, the compensation for permanent disability can be reworked as Rs.7700 x 12 x 11 x ¾ = Rs.7,62,300/=. Less the amount awarded by the Tribunal under the head. 8. As far as the compensation for loss of estate is concerned, the Tribunal has awarded only Rs.15,000/- against the claim of Rs.50,000/-. Relying on the decision mentioned in _**Pranay Sethi**_ **(supra)** , the maximum amount of compensation for lost of estate is Rs.15,000 + 10% escalation for three years which comes to Rs.16,500/- and accordingly, the appellants are entitled for the same. 9. As far as funeral expenses is concerned, the Tribunal has awarded Rs.25,000/-. Going by the decision reported in _**Pranay Sethi**_ (supra), the maximum amount that can be awarded as funeral expense is Rs.15,000 + 10% escalation for every three years. So, I am inclined to scale **MACA NO. 2161 OF 2015** -6- down the amount awarded by the Tribunal from Rs.25,000/- to Rs.16,500/-. 10. The appellants/claimants being the wife and children, going by the decision reported in **Magma General Insurance Co.Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130]** , are entitled to Rs.40,000/- each, except appellant No.3 (who is no more), under the head loss of consortium. They are also entitled to 10% increase every three years as per the decision reported in **Pranay Sethi (supra),** and thus, the 10% increase would come to Rs.44,000 x 4, i.e., Rs.1,76,000/-. Less the amount of Rs.1,00,000/- granted under the head to the first appellant. 10. When loss of consortium is awarded, loss of love and affection cannot be awarded over and above the loss of consortium. Hence, the amount of Rs.1,00,000/- awarded by the Tribunal under the head of loss of love and affection is set aside. **MACA NO. 2161 OF 2015** -7- 11. Award of compensation by the Tribunal under all other heads are found just and reasonable, and hence not interfered with. Accordingly, the following enhancements/deductions are made to the award passed by the Tribunal: |Sl. No.|Head of Claim|Amt. Awarded by Tribunal (Rs.)|Amt. Enhanced in appeal (Rs.)| |---|---|---|---| |1|Permanent disability|5,12,292|7,62,300| |2.|Loss of estate|15,000|16,500| |3.|Loss of consortium|1,00,000|1,76,000| ||Total|6,27,292|9,54,800| ||Amount enhanced Rs.954800-627292= **Rs.3,27,508/--**||| ||Funeral expenses|8,500 (25000-16,500)|| ||Love and affection|1,00,000 (order set aside)|| ||Total (deductions)|**Rs.1,08,500**|| ||Enhanced amount = **Rs.3,27,508-1,08,500= Rs.2,19,008/=**||| **MACA NO. 2161 OF 2015** -8- In the result, the appeal is allowed and the appellants are entitled to an amount of **Rs.2,19,008 (Rupees two lakh nineteen thousand and eight only)** as enhanced compensation with interest at the rate of 8% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimant 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. sd ## **BASANT BALAJI, JUDGE** _dl/_