George Joseph and Others v. National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** **MACA NO. 769 OF 2015** **AGAINST THE AWARD IN OPMV 1094/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANTS/PETITIONERS 1 TO 3:** 1 GEORGE JOSEPH, THARANIKUMTHRAPPIL HOUSE, VAYALA KARA, ELACKADU VILLAGE. 2 GEORGE JOSEPH S/O.GEORGE JOSEPH, THARANIKUMTHRAPPIL HOUSE, VAYALA KARA, ELACKADU VILLAGE 3 LILLYA GEORGE, D/O.GEORGE JOSEPH, THARANIKUMTHRAPPIL HOUSE, VAYALA KARA, ELACKADU VILLAGE. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR ## **RESPONDENT/RESPONDENT NO.2:** THE MANAGER, NATIONAL INSURANCE COMPANY LTD. CHERUPUSHPAM BUILDING, PALA, PIN-686 575. BY ADV SMT.DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.769/2015 2 ## **C.JAYACHANDRAN, J** **----------------------------** **M.A.C.A.No.769 of 2015 -------------------------------------Dated this the 4[th] day of November, 2022** ## **J U D G M E N T** **1.** The claimants in O.P(M.V.)No.1094 of 2012 of the Motor Accident Claims Tribunal, Pala are the appellants herein. They assail the award dated 17.06.2014 in the said original petition, essentially on the insufficiency of the quantum of compensation granted by the Tribunal. The accident in question occurred on 06.04.2012, when Jolly George, along with four others, were travelling in a Tata Sumo car, which rammed against the compound wall, as a consequence, two persons, including Jolly George succumbed and two others got injured. The legal heirs of the Jolly George are the appellants/claimants. **2.** Heard Sri.Thomas Abraham, learned counsel for the appellants and Smt.Deepa George, learned counsel for 3 ## M.A.C.A.769/2015 the respondent/insurance company. Perused the records. **3.** Learned counsel for the appellants pointed out that the monthly income reckoned by the Tribunal is very much on the lower side. It was pointed out that the deceased Jolly George was running a poultry farm at the time of the accident, as evidenced from Ext.A37 certificate issued by the Panchayath concerned. The petitioner claimed an income of Rs.30,000/-, as against which the Tribunal took only Rs.6,000/-. Learned counsel pointed out that, even going by the index available in the judgment of the Supreme Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675], the notional income pertaining to the year 2012 is Rs.8,500/-, which amount has to be appropriately enhanced in the light of Ext.A37, is the submission of the learned counsel. Secondly, learned counsel pointed out that, as against the entitlement of Rs.40,000/- each towards consortium, the Tribunal granted a total sum of M.A.C.A.769/2015 4 Rs.50,000/- only. **4.** Under the head 'loss of estate', all what is seen is Rs.5,000/-, as against the entitlement of Rs.15,000/-, going by the judgment in **National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT 662** **(SC)]** . Learned counsel also pointed out that, enhancement at the rate of 10% as contemplated in **Pranay Sethi** supra is also liable to be allowed. **5.** Per contra, these submissions were seriously opposed by the learned counsel for the respondent/insurance company. It was pointed out that, Ext.A37 license was granted only on 02.04.2012, whereas the accident occurred on 06.04.2012. Therefore, Ext.A37 is of no use in reckoning the monthly income of the appellants/petitioners. Another aspect pointed out by the learned counsel is with respect to the sum of Rs.25,000/- each granted under the head 'love and affection' and also 'pain and suffering', which are not liable to be allowed. As 5 ## M.A.C.A.769/2015 regards pain and suffering, learned counsel relied upon the judgment of the Honourable Supreme Court in **Oriental Insurance Company** v **. Kahlon** [AIR 2021 SC 3913]. As regards love and affection, the compensation under that head merges with the compensation under the head 'consortium'. **6.** Having heard the learned counsel appearing on both sides, this Court is of the opinion that the monthly income reckoned by the Tribunal is on the lower side. It is true that, Ext.A37 _per se_ does not indicate any monthly income of the deceased, Jolly George. However, Ext.A37 very much serves the purpose of establishing that, she was running a poultry farm at the time of the accident. The Tribunal took only Rs.6,000/- per month as income, which is certainly not justified. As rightly pointed out by the learned counsel for the appellants/petitioners, Rs.8,500/- is indicated in **Ramachandrappa** supra. In as much as it is established that the deceased Jolly George was conducting a poultry farm by virtue of Ext.A37, this Court is of M.A.C.A.769/2015 6 the opinion that a minimal enhancement can be given towards monthly income. In the circumstances, this Court is of the opinion that a monthly income can be fixed at Rs.10,000/-. **7.** Secondly, under the head 'consortium', as per the judgment of the larger Bench in **Pranay Sethi** supra, each of the dependents are entitled to Rs.40,000/-. The deceased Jolly George is survived by three legal heirs namely, her husband and two children, each of whom will be entitled to Rs.40,000/-. Thus, the total compensation under the head 'consortium' is Rs.1,20,000/-, as against Rs.50,000/- granted by the Tribunal. **8.** Under the head 'loss of estate', all what is seen granted by the Tribunal is Rs.5,000/-, which again, as per **Pranay Sethi** supra should be Rs.15,000/-. It is so held. However, under the head 'funeral expenses', a sum of Rs.25,000/- is seen granted, which is impermissible. As per the judgment in **Pranay Sethi** M.A.C.A.769/2015 7 supra, the permissible amount is Rs.15,000/-. The contention of the learned counsel for the insurance company as regards 'love and affection' and 'pain and suffering' is only to be accepted and therefore, the compensation of Rs.25,000/- each, granted under the head 'pain and suffering' and 'love and affection' are to be obliterated. Going by the judgment in **Pranay** **Sethi** supra, appellants/petitioners are also entitled to 25% of the income to be reckoned towards future prospects. They are also entitled to enhancement at the rate of 10% as contemplated in **Pranay Sethi** supra. **9.** In the circumstances, M.A.C.A. is allowed. Compensation payable to the claimants/appellants will be as shown in the tabular statement herein below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Total amount after**<br>**enhancement in appeal**| |---|---|---|---| ||**Loss of earnings**|Nil|Nil| |1|**Transport to Hospital**|**10,000**|**10,000**| |2|**Funeral Expenses**|**25,000**|**16,500**| M.A.C.A.769/2015 8 ||||**[15000+(15000x10/100)]**| |---|---|---|---| |3|**Pain and Suffering**|**25,000**|**Nil**| |4|**Loss of dependency**|**8,11,200**|**13,00,000***| |5|**Loss of Estate**|**5,000**|**16,500**<br>**[15000+(15000x10/100)]**| |6|**Loss of love and**<br>**affection**|**25,000**|**Nil**| |7|**Loss of consortium**|**50,000**|**1,32,000 [44,000x3]**| ||**Total**|**9,51,200**|**14,75,000**| |**Amount enhanced = Rs.14,75,000/ – Rs.9,51,200/ = Rs.5,23,800/**|||| *** [10,000 x 125/100 x 12 x 13 x 2/3]** **10.** The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 109 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 27.08.2019 in C.M.A.No.874/2015 in M.A.C.A.769/2015. The claimant shall produce the details of the Bank account before the Insurance 9 ## M.A.C.A.769/2015 Company/Tribunal within two months 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 given 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 the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. ## **Sd/-** ## **C.JAYACHANDRAN** **JUDGE** Sbna/