High Court of KeralaSingle Judge2018-11-07Appeal partly allowed; enhanced compensation wi...

Janaki and Bindhu B.K. v. United India Insurance Co. Ltd.

Case / Petition Number:MACA.No.1326 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: MARY JOSEPH
Judgment Date: 2018-11-07
Court Decision / Holding: Appeal allowed in part. The Court enhanced the compensation: loss of dependency Rs.11,76,000; funeral Rs.15,000; loss of estate Rs.15,000; pain and suffering Rs.15,000; parental/consortium Rs.20,000. Total enhanced amount Rs.12,57,000 (in addition to the Tribunal’s award of Rs.2,20,000). Interest at 7.5% per annum from the date of the petition to realisation. The insurer must deposit the enhanced amount within three months; proportionate court fee to be realized from the petitioners; parties to bear their own costs.
Final Disposition: Appeal partly allowed; enhanced compensation with directions for deposit and costs

Parties to the Case

Appellants / Petitioners

Janaki
Bindhu B.K.

Respondents

The Branch Manager, United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Adv. SMT. Celine Joseph

Counsels for Respondents

• Adv. Sri. A.R. George

Case Synopsis & Summary

This Kerala High Court judgment (MACA.No.1326 of 2013) arises from an appeal against a Motor Accident Claims Tribunal award in O.P.(MV) No.321/2011 (Kalpetta), concerning the death of Babu Kumar in a motorcycle accident on 18 May 2011. The appellants are the deceased’s mother, Janaki, and sister, Bindhu B.K., who challenge the Tribunal’s quantum of compensation for the death of the earning-age man who worked as a tailor and tourist guide. The insurer did not participate in the appeal. The High Court re-evaluates the evidence and fixes the deceased’s monthly income at Rs.7,000, referencing the occupation evidence and the Supreme Court’s Ramachandrappa standard. After applying 40% future prospects and deducting one third for personal expenses, the multiplicand becomes Rs.78,399, with a multiplier of 15, yielding a loss of dependency of about Rs.11,76,000. The Tribunal’s Rs.1,89,000 under that head is thus enhanced. Relying on the Supreme Court’s Pranay Sethi framework, the Court increases funeral expenses to Rs.15,000 (from Rs.5,000), loss of estate to Rs.15,000 (from Rs.10,000), adds Rs.15,000 for pain and suffering, and Rs.20,000 for parental/consortium loss. These components, together with the loss of dependency, bring the total to Rs.12,57,000, with interest at 7.5% from the date of petition until realisation. The appeal is allowed in part with costs, and the Tribunal is directed to deposit the enhanced amount within three months.

Provisions of Law Cited

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Legal Doctrines & Maxims

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Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners/personal representatives contended that the Tribunal erred in restricting compensation under several heads and that the evidence did not adequately reflect the deceased’s earning capacity; the tribunal failed to account for enhanced loss of dependency, future prospects, pain and suffering, and parental/consortium losses. They urged enhancement applying the Supreme Court’s guidelines (Pranay Sethi) and the Ramachandrappa benchmark for income, arguing the deceased’s occupation as a tailor justified a higher monthly income and subsequent adjustments to the heads of compensation. They pressed for higher sums on death-related heads, including funeral expenses, loss of estate, and pain and suffering, and asserted that a larger figure should be awarded to reflect the family’s dependency and loss.

Contentions of Respondents

There is no counsel for the insurer on record; hence, specific rebuttals or counter-arguments by the respondent are not articulated in the judgment. The available material indicates that the insurer did not participate in the appeal.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.	2011(3) KLT Suppl. 80 (SC)	Positive	Used as a benchmark for fixing the deceased’s monthly income (Rs.7,000) in the present case, following the Supreme Court’s approach.
National Insurance Co.Ltd v. Pranay Sethi	2017 (4) KLT 662(SC)	Positive	Supreme Court directive followed for enhancing heads of compensation (funeral expenses, loss of estate, pain and suffering, etc.) and overall guidelines on quantum.
Magma General Insurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.	2018 (11) SCALE 247	Positive	Referenced for the parental/consortium head of compensation; adopted in determining additional awards.

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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 MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940 MACA.No. 1326 of 2013** **AGAINST THE AWARD IN OPMV 321/2011 of MACT,KALPETTA** **DATED 14-08-2012** ## **APPELLANT/PETITIONERS:** **1 JANAKI AGED 58 YEARS W/O XAVIOR. (MOTHER OF LATE BABU KUMAR) 2 BINDHU B.K AGED 31 YEARS D/O XAVIOR (SISTER OF LATE BABU KUMAR) BOTH ARE RESIDING AT BINDHU BHAVAN, MANALVAYAL POST, IRULAM). BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT No.2:** **THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, NOORNAL BUILDING, MYSORE ROAD, SULTHAN BATHERY-686 572.** ## **BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 1326 of 2013** **2** ## JUDGMENT This appeal is directed against the award dated 14.08.2012 of the Motor Accident Claims Tribunal, Kalpetta (for short 'the Tribunal') in O.P.(MV) No.321/2011. The appellants are the petitioners before the Tribunal. The appeal is filed seeking for enhancement of the compensation. 2. The facts of the case in brief are to the following effect: At about 8.30. p.m. on 18.05.2011, while Mr.Babu Kumar was travelling as pillion driver in a motorcycle bearing Registration No.KL-12 D/9132 from Pulpally to Irulam side, it capsized at Kallonikunnu due to the rash and negligent riding of the said vehicle by the 1[st] respondent and thereby he sustained fatal injuries. He was rushed to the hospital, but during the course of treatment, he succumbed to the fatal injuries. The deceased was allegedly aged 36 years, working as a tailor and tourist guide and earning a monthly earning of Rs.10,000/-. Alleging that the accident was occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent, a **MACA.No. 1326 of 2013** **3** claim petition was preferred before the Tribunal seeking for a compensation of Rs.10,00,000/-. Before the Tribunal, the petitioners, who are none other than the mother and sister of the deceased, had adduced documentary evidence as Exts.A1 to A10. On appreciation of the evidence, the Tribunal found the 1[st] respondent, the rider of the motor vehicle responsible for the accident by his rash and negligent riding. A total sum of Rs.2,20,000/- was arrived at as compensation payable to the petitioners and an award was passed for the said sum. Challenging the quantum awarded by the Tribunal for the reason that it is unreasonable and insufficient, the captioned appeal was preferred by the petitioners. 3. Smt.Celine Joseph, the learned counsel for the petitioners has contended that interference by this Court with the impugned award is highly warranted for the reason that the Tribunal had granted only meagre amount as compensation under various heads of compensation. According to her, the evidence let in by the petitioners have not been properly appreciated by the Tribunal while arriving at the compensation. Accordingly, she pleaded for enhancement of compensation **MACA.No. 1326 of 2013** **4** under various heads, in interference. 4. Though served with notice in the appeal, the sole respondent, the insurer of the offending motorcycle was not represented by a counsel. 5. In the backdrop of the contentions raised by the appellants as above, the evidence on record is examined. As already stated, 10 documents were marked in evidence as Exts. A1 to A10. Ext.A8 is the copy of the Identity Card of the deceased and Ext.A9 is a certificate issued by the Tailors' Association. Those documents were marked in evidence without any opposition from the opposite side. Therefore, it is evidenced from Exts.A8 and A9 that the deceased was a Tailor by profession at the relevant time of accident. Evidence, oral or documentary have not been adduced to establish the monthly income of the deceased as on date of accident. In view of the fact that the Apex Court had considered Rs.4,500/as the monthly income of a Coolie worker in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.** [2011(3) _KLT Suppl._ 80 (SC)] while arriving at the quantum of compensation payable, this Court is perfectly **MACA.No. 1326 of 2013** **5** justified to take a higher sum in the case on hand where the occupation of the deceased was established by evidence as a tailor. The accident being occurred in the year 2011, the monthly income is refixed as Rs.7,000/-. It is evidenced that the deceased was survived by his widowed mother and a sister, who is unmarried. The deceased being a man within the age group 30-40, there is every justification to consider an addition of 40% of the monthly income towards future prospects. Being a bachelor, 1/3[rd] of the income could reasonably be deducted in consideration of personal expenses likely to be met by the deceased, had he been alive. Accordingly, the multiplicand is arrived at as Rs.78,399/-[(7000+40/100 of 7000)-1/3[rd] x 12]. The Tribunal has taken the multiplier applicable to the age of the mother of the deceased. It is settled position of law that the multiplier corresponding to the age of the deceased is to be taken. The age of the deceased being 36 years, the appropriate multiplier is 15. When the calculation is done with the multiplicand as Rs.78,399/- and multiplier as 15, the compensation payable under the head loss of dependency would be Rs.11,75,999/- rounded upto Rs.11,76,000/-. The **MACA.No. 1326 of 2013** **6** Tribunal has awarded a sum of Rs.1,89,000/- and therefore, a sum of Rs.9,87,000/- will be payable in addition. Under the head funeral expenses, the Tribunal has awarded a sum of Rs.5,000/- but in view of the direction of the constitutional bench of the Apex Court in **National Insurance Co.Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], the sum payable under the head being Rs.15,000/-, the petitioner is entitled to get Rs.10,000/- more. In view of the dictum in **Pranay Sethi's** case (supra) the sum payable under the head loss of estate being Rs.15,000/-, petitioners will also be entitled to get Rs.5,000/- more under that head. It is evidenced from the materials on record that Mr.Babu Kumar died on the day succeeding the date of accident. It seems from the impugned award that the Tribunal failed to award any compensation towards pain and suffering. Death being occurred on the day following the date of accident, it is reasonable to grant a sum of Rs.15,000/- under that head. Towards loss of consortium, the 1[st] petitioner being the mother and the deceased being the only son, in view of the decision in **Magma General Isurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** [2018 (11) **MACA.No. 1326 of 2013** **7** SCALE 247], she is entitled to get compensation under the head parental consortium. The Tribunal failed to consider that aspect and granted compensation accordingly. Therefore, this Court is inclined to award Rs.20,000/- under that head. When refixed in the manner as aforesaid, the petitioners are found entitled to get Rs.10,37,000/-[Rs.15,000+10,000+5,000+20,000+ 9,87,000] (Rupees ten lakhs thirty seven thousand only) in addition to the amount awarded by the Tribunal as per the impugned award. Needless to say that the amount found as payable in addition would carry interest at the rate of 7.5% per annum from the date of the claim petition till the date of realisation. The sole respondent in the appeal shall deposit the said sum with interest as aforesaid, within a period of three months from the date of receipt of a copy of this judgment. The appeal is allowed in part on the above terms. The parties to the appeal shall bear their respective costs. The total claim for compensation being Rs.10,00,000/- a court fee of Rs.1,572.50 was found remitted. In view of the enhancement, a total sum of Rs.12,57,000/- is payable as compensation to the **MACA.No. 1326 of 2013** **8** petitioners. Therefore, the petitioners are liable to pay court fee for the amount by which it exceeds the claim. The Tribunal shall see that the proportionate court fee is realised from the petitioners. Sd/- MARY JOSEPH, JUDGE ttb