HDFC ERGO GENERAL INSURANCE COMPANY LIMITED v. JASEENTHA SHOJI and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944 ## M.A.C.A. NO.1895 OF 2017 (AGAINST THE AWARD IN OP(MV) 694/2014 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, THODUPUZHA) ## APPELLANT/3[RD] RESPONDENT: HDFC ERGO GENERAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS SENIOR CLAIMS MANAGER, 2ND FLOOR, SHICAGO PLAZA RAJAJI ROAD, NEAR KSRTC BUS STAND, COCHIN-682 035. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## RESPONDENTS/CLAIMANTS: - 1 JASEENTHA SHOJI, W/O.SHOJI, PADINJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR.P.O., THODUPUZHA. - 2 ANN MARIA SHOJI, D/O.SHOJI, PADINJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR.P.O., THODUPUZHA. - 3 JES MARIA SHOJI, D/O.SHOJI, PADINJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR.P.O., THODUPUZHA. - 4 ROSE MARIA SHOJI, D/O.SHOJI, [MINOR DOB 17.02.2005], PADINJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR.P.O., THODUPUZHA,[REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN 1ST RESPONDENT] - 5 SEBASTIAN, S/O.DEVASIA, PADINJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR.P.O., THODUPUZHA. - 6 ACHAMMA, W/O.SEBASTIAN, PADINJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR.P.O., THODUPUZHA. BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX SRI.THOMAS J. ANAKKALLUNKAL THIS MACA HAVING COME UP FOR ADMISSION ON 25.11.2022, ALONG WITH CO.144/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.1895/2017 & CO 144/2017 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944 ## C.O. NO.144 OF 2017 IN M.A.C.A No.1895 OF 2017 ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, THODUPUZHA) ## CROSS OBJECTORS/PETITIONERS: - 1 JESEENTHA SHOJI, AGED 48 YEARS, W/O.LATE SHOJI, PADIJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR P.O, THODUPUZHA. - 2 ANN MARIA SHOJI, AGED 23 YEARS, D/O. LATE SHOJI, PADIJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR P.O, THODUPUZHA. - 3 JES MARIA SHOJI, AGED 21 YEARS, D/O. LATE SHOJI, PADIJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR P.O, THODUPUZHA. - 4 ROSE MARIA SHOJI, AGED 12 YEARS, D/O. LATE SHOJI, PADIJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR P.O, THODUPUZHA.(MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN-JESEENTHAN SHOJI-1ST CROSS OBJECTOR) - 5 SEBASTIAN, AGED 76 YEARS, S/O. DEVASIA, PADIJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR P.O, THODUPUZHA. - 6 ACHAMMA, AGED 72 YEARS, W/O. SEBASTIAN, PADIJAREPEEDIKAYIL, SANKARAPPILLY, KUDAYATHOOR P.O, THODUPUZHA. - BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX ## RESPONDENTS/RESPONDENTS: - 1 MATHEWS. .T. VELLOOKUNNEL, S/O. TOMY, VELLOOKUNNEL HOUSE, ARUVITHURA P.O, KOTTAYAM DIST, PIN 686 122. (DRIVER OF CAR BEARING REG. NO, KL/35C/6692). - 2 TOMY MATHEW, S.O, MATHEW, VELLOOKUNNEL HOUSE, ARUVITHURA P.O, KOTTAYAM DIST, PIN 686 122 (OWNER OF CAR BEARING REG NO.KL/35C/6692) - 3 HDFC ERGO GENERAL INSURANCE CO LTD, REPRESENTED BY ITS SENIOR CLAIMS MANAGER, 2ND FLOOR, SHICAGO PLAZA RAJAJI ROAD, NEAR KSRTC BUS STAND, COCHIN - 682 035. BY ADVS. SRI.RAJEEV V.KURUP SMT.K.S.SANTHI THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 25.11.2022, ALONG WITH MACA.1895/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.1895/2017 & CO 144/2017 3 ## `JUDGMENT` ``` (Dated: 25[th] November, 2022) ``` ``` The appeal is filed against the judgment in O.P.(M.V.)No.694 of 2014 on the files of the Additional Motor Accidents Claims Tribunal, Thodupuzha. Cross Objection is filed by the respondents in M.A.C.A.No.1895 of 2017, claiming enhancement of compensation. ``` ``` 2. Brief facts of the case are as follows: The respondents are the legal heirs of one Shoji Sebastian, who died on 19.07.2014 in a road traffic accident. According to the claimants, he was a rubber dealer conducting a shop at Muttam. On 12.07.2014 at about 09.30 a.m, the deceased was riding his motorcycle bearing Reg.No.38-B/7418 through Moolamattam- Thodupuzha road, when a car bearing Reg.No.KL-35C/6692 hit on the motorcycle and he suffered serious injuries. Though he was taken to Private Hospital, Chazhikattu, at Thodupuzha, he was again taken to Medical Trust Hospital, Ernakulam, where he succumbed to the injuries on 19.07.2014. 1[st] respondent is the driver, 2[nd] ``` MACA No.1895/2017 & CO 144/2017 4 ``` respondent is the insured and 3[rd] respondent is the insurer of the offending vehicle. ``` ``` 3. Respondents 1 and 2 filed written statements contending that the 1[st] respondent was driving the vehicle with utmost care and caution and the accident happened due to the negligent driving of the rider of the motorcycle. 3[rd] respondent also filed a written statement contending that the accident happened due to negligence on the part of the deceased as he had not worn a helmet. The Tribunal on an appreciation of the oral evidence of PWs 1 and 2 and Exts.A1 to A27, awarded a total compensation of Rs.41,58,340/- with 9% interest per annum from the date of the petition. Aggrieved by the said award, the insurance company has filed this appeal and the Cross Objection filed by the claimants. ``` ``` 4. The counsel for the Insurance Company submits that though the claimants claimed Rs.40,000/- as the monthly income of the deceased, the Tribunal has without any documentary evidence taken the monthly income as Rs.23,000/- per month and added future prospects at the rate of 30%. In the absence of any ``` MACA No.1895/2017 & CO 144/2017 5 ``` evidence other than Ext.A8 to A11, income tax returns, the Tribunal has not justified in taking the income as Rs.23,000/- per month. She further submits that as per the decision reported in National Insurance Company v. Pranay Sethi (2017) 16 SCC 680, since the deceased was aged 46 years at the time of the accident, future prospects should not have been taken at the rate of 30% and should have been at the rate of 25%. She also submits that the Tribunal has awarded Rs.25,000/- for funeral expenses, which is also on the higher side, in view of the decision of the Apex Court in Pranay Sethi’s case, cited (supra). Moreover, Rs.15,000/- is awarded as compensation for pain and suffering, and since the rider of the motorcycle died immediately after the accident, no compensation can be awarded under the head of pain and suffering. ``` ``` 5. The counsel for the respondents and the counsel in the Cross Objection, Adv.Jacob P.Alex, submits that Exts.A8 to A11 are income tax returns of the deceased/Shoji Sebastian, which show that he was an income tax payee and from 2010-2011 onwards the ``` MACA No.1895/2017 & CO 144/2017 6 ``` income was increasing. According to her, PW1 has categorically in his cross-examination stated that the deceased was drawing Rs.30,000/- per month from his business of rubber and Rs.10,000/- as agricultural income, out of 2.75 acres of his property. But there is no proof to show the income which he derived from the agricultural property. Moreover, for compensation for loss of consortium, the claimants who are the wife, children, and parents of the deceased are entitled to claim Rs.40000 + 10% increase every three years, relying on the decision reported in Pranay Sethi’s case, cited (supra). The Tribunal has not awarded any amount under the head loss of estate. For pain and suffering, the Tribunal has awarded Rs.15,000/-, taking note of the fact that the accident happened on 12.07.2014 and he died on 19.07.2014. ``` ``` 6. Exts.A8 to A11 are the income tax returns that would show that he was paying income tax on the gross income which he derives from the business as well as other income. Though it is not separately shown, the gross income shown in the income tax returns can only ``` MACA No.1895/2017 & CO 144/2017 7 ``` be taken as the income derived by him at the time of the accident. The Tribunal has taken the income of the deceased as Rs.23,000/- per month rightly, relying on the income tax returns (certificate) filed by him. It is seen that 30% was added as future prospects to the income of Rs.23,000/- per month. In view of the decision reported in Pranay Sethi’s case, cited (supra), the maximum percentage of future prospects for a person aged 46, who is self employed, is 25%, hence the finding entered as 30% towards future prospects is brought down to 25%. The compensation for loss of dependency would come to Rs.33,63,750/- (28750x12x13x3/4). ``` ``` 7. As far as loss of consortium is concerned, the appellants are the wife, children and parents of the deceased who are entitled for consortium at the rate of Rs.40,000/- + 10% increase every three years, which would come to Rs.2,64,000/-. When the loss of consortium is granted, love and affection cannot be awarded, so the compensation awarded for love and affection by the Tribunal is set aside. Towards loss ``` MACA No.1895/2017 & CO 144/2017 8 ``` of estate, the appellants are entitled to Rs.15,000/- + 10% increase every three years, which will come to Rs.16,500/-. Since the Tribunal has not awarded any amount, I am awarding Rs.16,500/- under the head of loss of estate. For funeral expenses, the Tribunal had awarded Rs.25,000/-, which is brought down to Rs.15,000 + 10% increase for every three years, which will come to an amount to Rs.16,500/-. For pain and suffering, though the counsel for the appellant vehemently argues, no amount can be awarded, taking into consideration that the accident happened on 12.07.2014 and he died on 19.7.2014, after seven days from the date of the accident, the deceased would have suffered pain, and on the said ground, so the legal heirs are entitled to a nominal amount of Rs.15,000/-, which the Tribunal has rightly awarded. ``` ``` Accordingly, the following enhancements are made ``` ``` to the award passed by the Tribunal: ``` |Sl. No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. Awarded in<br>appeal (Rs.)| |---|---|---|---| |1.|For loss of<br>dependency|34,98,300/-|33,63,750/-| MACA No.1895/2017 & CO 144/2017 9 |2.|Compensation for<br>loss of consortium|1,00,000/-|2,64,000/-| |---|---|---|---| |3.|Compensation for<br>loss of estate|………..|16,500/-| |4.|For funeral expenses|25,000/-|16,500/-| |5.|For love and affection|1,00,000/-|.………| ||Total 37,23,300/- 36,60,750/-||| ||Compensation amount reduced is: 37,23,300 - 36,60,750<br>= 62,550/-||| ``` The compensation awarded by the Tribunal is modified resulting in a deduction of Rs.62,550/-(Rupees Sixty ``` ``` two thousand five hundred and fifty only). Accordingly, the appeal and cross-objection are disposed of as above. ``` ``` Sd/- ``` ## **`BASANT BALAJI, JUDGE`** ``` ss ```