Jessy Joseph and others v. Shiju Zhakarias and United India Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ## **`MACA NO. 356 OF 2014`** ``` AGAINST THE AWARD DATED 31.10.2012 IN OP(MV) NO.1251/2006 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANTS:`** - `1 JESSY JOSEPH, AGED 44 YEARS, W/O. LATE JOSEPH AUGUSTINE @ RAJU, PARATHAZHA HOUSE, P.O. VELLAD, KANNUR DISTRICT.` - `2 RAGIN JOSEPH, AGED 17 YEARS (MINOR), D/O. LATE JOSEPH AUGUSTINE @ ARAJU, REP. BY MOTHER JESSY JOSEPH, PARATHAZHA HOUSE, P.O. VELLAD, KANNUR DISTRICT.` - `3 JESNA JOSEPH, AGED 16 YEARS (MINOR), D/O.LATE JOSEPH AUGUSTINE @ ARAJU, REP. BY MOTHER JESSY JOSEPH, PARATHAZHA HOUSE, P.O. VELLAD, KANNUR DISTRICT.` - `4 THARUN JOSEPH, AGED 14 YEARS, S/O.LATE JOSEPH AUGUSTINE @ RAJU, REP. BY MOTHER JESSY JOSEPH, PARATHAZHA HOUSE, P.O. VELLAD, KANNUR DISTRICT.` - `5 AUGUSTINE AGUSTINE, AGED 75 YEARS S/O. AGUSTINE,PARATHAZHA HOUSE, P.O. VELLAD, KANNUR DISTRICT.` - `6 MARIYAMMA AGUSTINE, AGED 69 YEARS W/O. AUGUSTINE, PARATHAZHA HOUSE, P.O. VELLAD, KANNUR DISTRICT.` ``` BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH ``` ## **`RESPONDENTS:`** - `1 SHIJU ZHAKARIAS, S/O. ZACHARIA, MATTATHIL HOUSE, NADUVIL VIA, P.O MANDALAM, KANNUR DISTRICT-670582.` MACA 356/14 2 ``` 2UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, TEMPLE ROAD, SOUTH BAZAR PAYYANNUR-670307. ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 356/14 3 ## **`JUDGMENT`** Joseph Augustine alias Raju, was unfortunately killed in a road accident which occurred on 05.04.2006, when the motor cycle on which he was riding pillion, overturned - he being thus thrown on to the road - on account of the rash and negligent driving of its rider; thus causing him severe head injury. He succumbed to the same on the very next day and his legal heirs, namely, his wife, children and mother, filed OP(MV) No.1251/2006 before the Motor Accidents Claims Tribunal, Thalassery (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of Rs.9,00,000/-; but which has been allowed only to an extent of Rs.7,47,250/-. They impugn the said Award as being inadequate and hence this Appeal. 2. Sri.Sunil Nair Palakkat – learned counsel for the appellants, argued that the compensation awarded by the Tribunal under the heads ‘Loss of Dependency’, ‘Loss of Consortium’, ‘Loss of Estate’ and ‘Funeral Expenses’ is extremely inadequate particularly because it has reckoned the notional income of the MACA 356/14 4 deceased to be a mere Rs.3,500/- per month, against the claim of Rs.5,000/-. He argued that, going by Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Honourable Supreme Court has postulated that, even in the case of a person whose income is otherwise unascertainable, or who is working as a ‘Coolie’, the minimum figure to be reckoned is Rs.5,500/-; and therefore, that the learned Tribunal has completely erred in reckoning it only as Rs.3,500/-. He concluded his submissions saying that the compensation under the heads ‘Funeral Expenses’, ‘Loss of Consortium’ and ‘Loss of Estate’ is totally exiguous, going by the standards fixed by the Honourable Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]. He thus prayed that this Appeal be allowed. 3. Smt.K.S.Santhi – learned Standing Counsel for the Insurance Company, in response, argued that since the accident occurred in the year 2006, the learned Tribunal has correctly adopted the standards available at that time and has fixed the compensation without any error. She added that, in any event, MACA 356/14 5 the learned Tribunal could not have granted any amount under the head ‘Loss of Love and Affection’, after it had granted compensation for dependency. She thus prayed that this Appeal be dismissed. 4. I have considered the afore rival contentions on the touchstone of the evidence produced on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 5. On the question of notional income adopted by the Tribunal in favour of the deceased, I find favour with the appellants because, Ramachandrappa (supra) authorises a minimum amount of Rs.5,500/-, even for a person with unascertainable income in the year 2006 – when the accident occurred. The claimants have sought only Rs.5,000/- per month, which, certainly, ought to have been reckoned by the Tribunal. 6. That said, since the deceased was only 37 years at the time of the accident, 40% future prospects ought to have been added to his notional income, as authorised by Pranay Sethi MACA 356/14 6 (supra). 7. Coming to the compensation awarded under the heads ‘Funeral Expenses’ and ‘Loss of Estate’, Pranay Sethi (supra) again sanctions an amount of Rs.15,000/- each under such heads and there is no reason why it should be denied to the appellants. 8. As regards the compensation awarded under the head ‘Loss of Love and Affection’, I find great force in the contention of Smt.K.S.Santhi because, United India Insurance Company Ltd. v. Satinder Kaur @Satwinder Kaur and Others [2020 (3) KHC 760] renders it indubitable that no such could have been granted when the compensation under the head ‘Loss of Dependency’ has been offered. 9. Finally, under the head ‘Loss of Consortium’, when it is admitted that all appellants were dependents of the deceased, they are all entitled to Rs.40,000/- each under the same. Resultantly, this Appeal is partly allowed, with the following directions: a) The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.9,45,000/-, from Rs.6,14,250/- MACA 356/14 7 now awarded by the Tribunal, reckoning the notional income of the deceased to be Rs.5,000/- per month, with 40% future prospects added to it and 1/4 of it being reduced as personal expenses. The multiplier adopted for this purpose is ‘15’ as authorised by Sarala Verma and Others v. Delhi Transport Corporation & Another [2010 (2) KLT 802]. b) The compensation under the head ‘Funeral Expenses’ is enhanced to Rs.15,000/-, from Rs.10,000/- awarded by the Tribunal, as per Pranay Sethi (supra). c) The compensation under the head ‘Loss of Estate’ is enhanced to Rs.15,000/-, from Rs.5,000/-, as per Pranay Sethi (supra). d) The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.2,40,000/-, reckoning Rs.40,000/- in favour of each of the appellants since it is uncontested that they were all dependents of the deceased. e) The compensation of Rs.50,000/- awarded by the learned Tribunal under the head ‘Loss of Love and Affection’ is deleted. MACA 356/14 8 f) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellants will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% (reducing the rate of interest granted by the Tribunal, in view of the escalation granted), 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. In view of the afore, the amount 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/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ```