Jessy Dileep and Others v GOPAKUMAR E.M., SISPSON and United India Insurance Company Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 MACA NO. 1713 OF 2011 ``` ## **`AGAINST THE AWARD IN OP(MV)NO.1632/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR`** ## **`APPELLANTS:`** ``` 1JESSY DILEEP AGED 46 YEARS W/O.LATE DILEEP,THOLATH HOUSE, ESTATE ROAD,MARATHAMCODE,THALAPPILLY TALUK, THRISSUR DISTRICT. 2ANIL DILEEP AGED 23 YEARS S/O.LATE DILEEP SIMON,THOLATH HOUSE, ESTATE ROAD,MARATHAMCODE,THALAPPILLY TALUK, THRISSUR DISTRICT. 3ANITHA DILEEP AGED 21 YEARS D/O.LATE DILEEP SIMON,THOLATH HOUSE, ESTATE ROAD,MARATHAMCODE,THALAPPILLY TALUK, THRISSUR DISTRICT. 4SIMON JOB THOLATH HOUSE,EASTERN BAZAR,PAZHANJI, THALAPPILLY TALUK, THRISSUR DISTRICT (DIED LRS NOT IMPLEADED) 5LILLY SIMON W/O.LATE SIMON JOB,THOLATH HOUSE,ESTATE ROAD,MARATHAMCODE,THALAPPILLY TALUK, THRISSUR DISTRICT BY ADVS. T.R.JAGADEESH ANTONY THARIAN T.S.BIJU ``` ## **`RESPONDENTS:`** ``` 1GOPAKUMAR E.M. EDATHIPARAMBIL PALLISSERY,ANNAMANADA, THRISSUR DISTRICT PIN 680 741 2SISPSON S/O.SUDHAKARAN,KAIPPAMPARA VEEDU, ANNAMADA DESOM,ALATHOOR VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT PIN 680 741 ``` ## **`MACA NO. 1713 OF 2011 2`** ``` 3UNITED INDIA INSURANCE COMPANY LTD CHALAKKUDY BRANCH,CHALAKKUDY P.O, THRISSUR DISTRICT, PIN 680 307 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`MACA NO. 1713 OF 2011 3`** ## **`JUDGMENT`** The legal heirs of Dileep Simon, who died in an accident on 13.02.2004, caused by the offending vehicle driven by the 2[nd] respondent and owned by the 1[st] respondent, impugn the Award of the Motor Accidents Claims Tribunal, Thrissur (‘Tribunal’, for short) in OP(MV)No.1632/2004, on the ground that the compensation awarded thereunder is exiguous. 2. Sri.Antony Tharian – learned counsel for the appellants, submitted that, pending this Appeal, appellants 4 and 5 have unfortunately died; but, that they are survived only by other appellants. He argued that the compensation awarded by the learned Tribunal under the heads “Funeral Expenses”, “Loss of Estate”, “Loss of Dependency” and “Loss of Consortium” is extremely low, particularly because the learned Tribunal has fixed the notional income of the deceased to be a mere Rs.3,000/-. He thus prayed that this Appeal be allowed, enhancing the compensation under various heads. 3. Sri.P.Jacob Mathew – learned Standing Counsel for the respondent - United India Insurance Company Limited (‘Insurance Company’, for short), in response, submitted that the Tribunal has not erred in granting compensation; but conceded, to a pointed question ``` MACA NO. 1713 OF 2011 4 ``` from this Court, that the notional income fixed for the deceased by the Tribunal at Rs.3,000/- is contrary to the standardization postulated by the Hon’ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236];_ and further that an amount of Rs.15,000/- each under the heads “Funeral Expenses” and “Loss of Estate” is authorized in _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. He also conceded that all the appellants are entitled to “Consortium” at the rate fixed by the Hon’ble Supreme Court in _**Pranay Sethi**_ (supra). 4. When I consider and evaluate the afore rival submissions, it is true that the appellants seek the income of the deceased to be reckoned as Rs.10,000/- per month, based on their assertion that he was running a business of sale of ayurvedic medicines. They have produced Ext.A14 - letter from the ‘Arya Vaidhya Pharmacy’ in substantiation; and they also assert that he was earlier working as an Editorial Assistant in a Newspaper, from which position, he had voluntarily retired, to start the business. 5. However, even when one examines Ext.A14, it does not mention the actual income claimed by the appellants; and, at the best, would only indicate that he was running a business of retail sale of Ayurvedic ## **`MACA NO. 1713 OF 2011 5`** Medicines. As per _**Ramachandrappa (Supra),**_ in case where the actual income of the deceased is unable to be established, a minimum of Rs.4,500/- ought to have been reckoned, even in the case of a person who is a ‘coolie’, or with an unascertainable income, in the year 2004 – when the accident – occurred. Further, in _**Rajani v. Oriental Insurance**_ _**Company Ltd. [2022 (5) KLT online 1012],**_ the Hon’ble Supreme Court has then gone on to postulate that, in the case of a person who has a better avocation, or who is engaged in a technical job, a more robust view has to be taken. I am, therefore, of the firm view that, since Ext.A14 would show that the deceased was not a ‘coolie’ but one who is engaged in business, a figure of Rs.6,000/- would be apposite, which is a mere Rs.1,500/- more than what has been sanctioned by _**Ramachandrappa (Supra)**_ in the case of even a ‘coolie’. Since the deceased was only 47 years in age at the time of the accident and his consequent unfortunate death, 25% of the income will have to be added as future prospects, as per _**Pranay Sethi (Supra).**_ 6. As regards ‘Consortium’, _**Pranay Sethi (Supra)**_ again mandates that every dependent is entitled to Rs.40,000/-; while, under the heads “Funeral Expenses” and ‘Loss of Estate’, the amount to be awarded should be Rs.15,000/- each. In the afore circumstances, this appeal is partly allowed in the following manner: ## **`MACA NO. 1713 OF 2011 6`** (a) The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.8,77,500/-, from Rs.3,12,000/-, reckoning the notional income of the deceased to be Rs.6,000/- per month, with 25% future prospects added to it and 3/4 deducted towards personal expenses, since he is survived by his wife, children and his parents, who are five in number. (b) An amount of Rs.15,000/- is awarded under the head ‘Funeral Expenses’, as per _**Pranay Sethi (Supra).**_ (c) The compensation awarded by the Tribunal under the head ‘Loss of Estate’ is enhanced to Rs.15,000/-, from Rs.10,000/-, as per _**Pranay Sethi (Supra).**_ (d) The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.2 lakhs, from Rs.10,000/-, reckoning Rs.40,000/- each in favour of all the appellants (the appellants 4 and 5 have been died pending this appeal), as per _**Pranay Sethi (Supra).**_ Consequently, the appellants 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 entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` MACA NO. 1713 OF 2011 7 ``` Needless to say, while calculating interest on the amounts enhanced by this Court, a period of 135 days - being the delay in filing this appeal - 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/13.4 ``` ``` MACA NO. 1713 OF 2011 8 ``` ## **`APPENDIX OF MACA NO.1713 OF 2011`** ## **`APPELLANT’S EXHIBITS:`** |**ANNEXURE A1**|**CERTIFIED COPY OF AWARD DATED, 28.1.2011 IN**| |---|---| ||**O.P(MV)NO.1632 OF 2004 OF MACT, THRISSUR**| |**ANNEXURE A2**|**MEDICAL CERTIFICATE DATED, 06.12.2010 ISSUED BY**| ||**THE ROYAL HOSPITAL, KUNNAMKULAM IN FAVOR OF**| ||**5TH APPELLANT.**| |**ANNEXURE A3**|**MEDICAL CERTIFICATE DATED, 12.3.2011 ISSUED BY**| ||**ROYAL HOSPITAL, KUNNAMKULAM IN FAVOR OF 3RD**| ||**APPELLANT.**|