IFFCO Tokio General Insurance Company Limited v Kevin Mathew and Mevin Mathew (Minors)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 ``` ``` MACA NO. 1692 OF 2013 ``` ``` AGAINST THE AWARD IN OP(MV)NO.1455/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM ``` ## **`APPELLANT:`** ``` IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED GOA, NOW REPRESENTED BY ITS MANAGER - LEGAL, 'SATGAMAYA', M.G.ROAD, KOCHI - 602 011. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHI NAIR ``` ## **`RESPONDENTS:`** ``` 1KEVIN MATHEW (MINOR) AGED 17 YEARS S/O.LATE T.S.MATHEW, THUNDAPARAMBIL HOUSE, VAIKOM, NOW RESIDING AT KATTITHARA HOSUE, TRIVENI LANE, INDIRA ROAD, PALARIVATTOM, KOCHI - 682 025. 2MEVIN MATHEW (MINOR) AGED 12 YEARS, S/O.LATE T.S.MATHEW, THUNDAPARAMBIL HOUSE, VAIKOM, NOW RESIDING AT KATTITHARA HOSUE, TRIVENI LANE, INDIRA ROAD, PALARIVATTOM, KOCHI - 682 025. (MINOR RESPONDENTS ARE REPRESENTED BY THEIR GUARDIAN AND NEXT FRIEND JOMON JOY, KATTITHARA HOUSE, TRIVENI LANE, INDIRA ROAD, PALARIVATTOM, KOCHI - 682 025.) BY ADV SRI.ANTONY THARIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, ALONG WITH CO.59/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1692 OF 2013 & CO NO.59/2022 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 CO NO. 59 OF 2022 ``` ``` AGAINST THE AWARD DATED 16.05.2013 IN O.P(MV)NO.1455/2011 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`CROSS OBJECTORS/PETITIONERS:`** 1 `KEVIN MATHEW AGED 26 YEARS S/O.LATE T.S. MATHEW, THUNDAPARAMBIL HOUSE, VAIKOM, NOW RESIDING AT A-204, SIDDHIVINAYAK COMPLEX, THAKURLI EAST, KALYAN, THAKURLI KALYAN THANE, MAHARASHTRA, PIN 421201.` 2 `MEVIN MATHEW, AGED 21 YEARS S/O.LATE T.S. MATHEW, THUNDAPARAMBIL HOUSE, VAIKOM, NOW RESIDING AT A-204, SIDDHIVINAYAK COMPLEX, THAKURLI EAST, KALYAN, THAKURLI KALYAN THANE, MAHARASHTRA, PIN 421201. BY ADVS. ANTONY THARIAN AMBROSE JUDE DCRUZ` ## **`RESPONDENT:`** ``` IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. A/2, RELIANCE HOUSE, ISIDORIOBAPTISA ROAD, PAJIFOND, MARGAO, GOA, REPRESENTED BY ITS MANAGER – LEGAL ‘SATGAMAYA’, M.G. ROAD, ERNAKULAM, PIN 6820111. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHI NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, ALONG WITH MACA.1692/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1692 OF 2013 & CO NO.59/2022 ``` ``` 3 ``` ## **`JUDGMENT`** This appeal and the Cross Objection emanate out of the Award of the Motor Accidents Claims Tribunal, Ernakulam (‘Tribunal’ for short). 2. The afore appeal is filed by the “Iffco Tokio General Insurance Company Ltd.”, which insured the offending vehicle involved in a road accident, which occurred on 17.04.2011, in which the father of the Cross Objectors – Mathew, was unfortunately killed. They impugn the compensation awarded by the learned Tribunal as being excessive broadly on two grounds, namely, that the notional income of the deceased has been incorrectly taken; and that adding 30% to it as future prospects was wrong. 3. While so, the Cross Objectors assail the afore said Award of the Tribunal, asserting that larger compensation is eligible to them, particularly because they were robbed of the consortium of their father at the time when they were very young and unable to fend for themselves. 4. I have heard Sri.Mathew Jacob, learned Senior Counsel, instructed by Smt.Preethi Nair, appearing for the appellant - Insurance Company and Sri.Antony Tharian – learned counsel appearing for the Cross Objectors. ``` MACA NO.1692 OF 2013 & CO NO.59/2022 ``` ## **`4`** 5. I have considered the rival submissions and have also gone through the evidence on record very carefully. 6. The constitutive facts involved in this case are not in dispute. The Insurance Company has no case Mathew was not killed in the road accident, or that he did not sustain injuries which were fatal. Their only case is that the notional income of Rs.4 lakhs per year, adopted by the learned Tribunal in his favour is excessive; and that 25% alone would have been added as future prospects. _7. Per contra,_ Sri.Antony Tharian – learned counsel for the Cross Objectors, says that the Income Tax Returns produced by his clients in evidence would establish that the income of their father, late Mathew, was much more than what has been reckoned by the Tribunal; and that, therefore, larger compensation ought to have been awarded under various other heads, since they have been left without any support in their life, on account of his unfortunate death. 8. I first deal with the correctness of the notional income adopted by the Tribunal in favour of late Mathew. 9. The learned Tribunal has relied upon Exts.A16 and A17, to find that late Mathew had disclosed his total income to be Rs.4,45,004/- for the Assessment Year 2007-2008 and thus deducted the tax payable on ``` MACA NO.1692 OF 2013 & CO NO.59/2022 ``` ## **`5`** it, leading to Rs.4 lakhs being accepted as his income. Sri.Mathew Jacob - learned Senior Counsel argues that the Income Tax Returns for the Assessment Year 2007-2008 ought not to have been reckoned and that only the one for the year 2010-2011 was relied upon. He explained that this is because the accident occurred on 17.04.2011 and that the previous Assessment Year is 2010-2011. 10. I must say that I find great force in the afore submissions of Sri.Mathew Jacob - learned Senior Counsel, because when the Income tax Return for the Assessment Year 2010-2011 was available, the learned Tribunal ought to have gone with it. The said return, namely Ext.A16, discloses the income of late Mathew to be Rs.4,23,001/-, with Rs.32,778/- being the tax. Obviously, the net income, after deduction of tax, would be Rs.3,90,223/- even as per Ext.A16. I, therefore, cannot find fault with the Tribunal in having reckoned Rs.4 lakhs per year as the income of late Mathew. 11. That said, there is some force in the submissions of the Insurance Company that only 25% could have been added as future prospects to the income of the deceased because, he was 48 years at the time of the accident. This is so as per _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662].**_ I, therefore, ``` MACA NO.1692 OF 2013 & CO NO.59/2022 ``` ## **`6`** propose to revise the compensation accordingly. 12. Coming to the contentions of the Cross Objectors, I cannot find error in the impugned award, except for ‘Funeral Expenses’, under which they are entitled only to Rs.15,000/- as per the judgment of Hon’ble Supreme Court in _**Pranay Sethi (Supra).**_ Similarly, they are also entitled to Rs.15,000/- under the head ‘Loss of Amenities’ as per the said judgment; but the compensation for ‘Pain and Sufferings’ of Rs.20,000/- and the compensation for ‘Loss of Love and Affection’ Rs.40,000/- awarded by the Tribunal, will have to be deducted as per the ratio in _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780].**_ 13. Finally, it is without doubt that, as per _**Pranay Sethi (Supra),**_ the Cross Objectors are entitled to compensation under the head ‘Loss of Consortium’, because they lost their father. I propose to award Rs.40,000/- each under this head as per the afore precedent. In the afore circumstances, this appeal and cross objections are disposed of in the following manner: (a) The compensation under the head ‘Loss of Dependency’ is reduced to Rs.43,33,334/-, reckoning the annual income of the deceased to be Rs.4 lakhs, with 25% future prospects added to it and ``` MACA NO.1692 OF 2013 & CO NO.59/2022 ``` ``` 7 ``` after deducting 1/3rd as against personal expenses and adopting the multiplier of ‘13’ as per _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].**_ (b) The compensation under the head ‘Funeral Expenses’ is enhanced to Rs.15,000/-, from Rs.5,000/- as awarded by the Tribunal, as per _**Pranay Sethi (Supra).**_ (c) An amount of Rs. 15,000/- is awarded under the head compensation for ‘Loss of Amenities’, as per _**Pranay Sethi (Supra).**_ (d) An amount of Rs.80,000/- is awarded as Loss of Consortium to the appellants, at the rate of Rs.40,000/- per head, as per _**Pranay Sethi (Supra).**_ (e) Axiomatically, the amount of Rs.20,000/- awarded by the Tribunal under the head compensation for ‘Pain and Sufferings’ and an amount of Rs.40,000/- under the head ‘Loss of Love and Affection’ are deleted. Consequently, the cross objectors will be at full liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 8 **%** as awarded by the Tribunal, from the date of claim until it is recovered. They will also be ``` MACA NO.1692 OF 2013 & CO NO.59/2022 ``` ``` 8 ``` entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. Needless to say, while computing the interest on the enhanced amounts as afore, a period of 2338 days - being the delay in filing the Cross Objections by the Cross Objectors - shall stand excluded. In view of the afore, the sums as fixed above, shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## **`Sd/-`** ``` DEVAN RAMACHANDRAN JUDGE ``` ``` MC/23.3 ```