Johnkutty V.T. and Others v. Prasad C.K. and The Divisional Manager, National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ## **`FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944`** ## **`MACA NO. 4594 OF 2019`** ## **`AGAINST THE AWARD DATED 08.05.2019 IN OP(MV) NO.632/2016 OF THE`** ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA`** ## **`APPELLANTS:`** ``` 1JOHNKUTTY.V.T, AGED 47 YEARS VANDANATHU VAYALIL HOUSE, ANICADU P O, ANICADU VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA. 2ACCAMMA JOHN, AGED 42 YEARS VANDANATHU VAYALIL HOUSE, ANICADU P O, ANICADU VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA. 3CHRISTINA MARY JOHN, AGED 22 YEARS VANDANATHU VAYALIL HOUSE, ANICADU P O, ANICADU VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA. ``` ``` BY ADVS. T.K.KOSHY SRI.SABU I.KOSHY SMT.V.V.RISANI ``` ## **`RESPONDENTS:`** - `1 PRASAD.C.K., S/O. KESAVAN C.K, CHENNAMALA PRAYIDATHIL HOUSE, NARAKATHANY P O, MALLAPPALLY, PATHANAMTHITTA, PIN-689544.` ``` 2THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, NELSON COMPLEX, P B NO.60, KAYAMKULAM, PIN-690502. ``` ``` BY ADVS. SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 4594/19 2 ## **`JUDGMENT`** The 20 year old son of appellants 1 and 2 and the brother of the 3rd appellant, was unfortunately killed in a road accident - when the motor cycle ridden by him was hit by the offending vehicle, driven in a rash and negligent manner - on 04.03.2016. Even though the deceased was rushed to the hospital, he succumbed to the injuries a few hours later and the appellants filed OP(MV) No.632/2016 before the Motor Accidents Claims Tribunal, Pathanamthitta, seeking compensation of Rs.90,00,250/-, limited to Rs.50,00,250/-; but which has been awarded only to a sum of Rs.16,86,000/-. The appellants impugn the Award as being exiguous. 2. Sri.T.K.Koshy - learned counsel for the appellants, argued that the primary reason why the compensation awarded is inadequate is because the learned Tribunal has adopted the notional income of the deceased to be Rs.12,000/- only, even after noticing that he was a second year student of Bachelor of Technology and extremely meritorious throughout his academic MACA 4594/19 3 life. He pointed out that Ext.A10 – Conduct and Character Certificate, issued by the College; and Ext.A11 – Scholarship Certificate made available along with Exts.A12 and A13 – Merit Certificates, would establish without any doubt that the deceased was an extremely bright student, with proficiency in extracurricular activities also. He argued that, therefore, the deceased was certainly a boy who would have had great prospects in life; and consequently, that the Tribunal ought to have adopted a much higher figure as his notional income. He thus prayed that this Appeal be allowed and the compensation under the head ‘Loss of Dependency’ be adequately enhanced. 3. Sri.P.Jacob Mathew – learned Standing Counsel for the respondent – Insurance Company, on the other hand, submitted that, since there is no evidence to prove the income of the deceased, the Tribunal was more than fair in having adopted his notional income to be Rs.12,000/-; and he relied upon the judgment of the Honourable Supreme Court in Meena Pawaia and Others v. Asharaf Ali and Others [2021 (6) KHC 596], in substantiation. He thus prayed that this Appeal be dismissed. MACA 4594/19 4 4. I have considered the afore rival contentions on the touchstone of the evidence 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. As evident from the afore narrative of facts, the parties are in controversy only as regards the notional income adopted by the Tribunal in favour of the deceased. There can be little doubt – as is also without contest – that the deceased was a bright young man, who was excellent both in studies and extracurricular activities. He was pursuing his Engineering Degree and obviously, would have qualified to be an eminent Engineer, v. with a great future in professional life. In Ramchandrappa Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Honourable Supreme Court has standardised the notional income in the case of a person with unascertainable income in the year 2016 – when the accident occurred – to be Rs.10,500/-. When such a figure is fixed even for a ‘Coolie’, it does not require great amount of expatiation to MACA 4594/19 5 hold that, in the case of a person with high prospects of qualification and professional life, at least 1/3 of that must be added to reckon his notional income. 6. The fact that the deceased young man was only a student and not an earning member, would be no deterrent to this because, what this Court is expected to ascertain is the manner in which he would have shaped up as a citizen. I have no doubt, therefore, that an amount of Rs.15,000/- per month would be the most apposite, to be taken as the notional income of the deceased. 7. However, before I so conclude, I must certainly deal with the argument of the learned Standing Counsel for the Insurance Company that, in Meena Pawaia (supra), the Honourable Supreme Court adopted the notional income of an Engineering student to be only Rs.10,000/-. However, it must be borne in mind that even though the judgment was delivered in the year 2021, it related to an accident which occurred in the year 2012. More than four years had elapsed, when the son of appellants 1 and 2 died; and am, therefore, fortified in my view MACA 4594/19 6 that it will be fully justified to adopt an amount of Rs.15,000/per month, as his notional income. 8. That said, it is without doubt that the notional income of the appellant ought to have been added with 40% future prospects, going by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. This has not been done by the Tribunal and to that extent, I cannot find favour with the same. 9. Under other heads, I find that no amount could have been granted for ‘Pain and Suffering’ or for ‘Loss of Expectation of Life’ and therefore, it would require to be deleted, going by United India Insurance Company Ltd. v. Satinder Kaur @Satwinder Kaur and Others [2020 (3) KHC 760]. Resultantly, this Appeal is allowed in part, in the following manner: a) The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.22,68,000/-, reckoning the notional income of the deceased to be Rs.15,000/- per month, adding 40% future prospects and then deducting 1/2 towards personal expenses as declared in Pranay Sethi (supra). MACA 4594/19 7 b) The compensation under the head ‘Pain and Suffering’ is deleted. c) The compensation under the head ‘Loss of Expectation of Life’ is deleted. d) 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 8%, (reducing it from 9% as awarded by the Tribunal, in view of the escalation granted), from the date of this judgment until it is realised. They will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. ## **`Sd/-`** ``` RR ``` ## **`DEVAN RAMACHANDRAN`** ## **`JUDGE`** The words ‘from the date of this judgment’ in the last paragraph of the Judgment at page 7 is substituted with the words ‘from the date of the claim petition’ as per order dated MACA 4594/19 8 21.07.2023 in I.A.No.01/2023 in MACA No.4594/2019. Sd/- Deputy Registrar