High Court of KeralaSingle Judge2021-03-12Appeal partly allowed; enhanced compensation as...

K.M. Abdul Salam; Noorjahaan; JAVAD K A v. The HDFC ERGO General Insurance Company Ltd.

Case / Petition Number:MACA.No.558 OF 2015(B)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Ziyad Rahman A.A.
Judgment Date: 2021-03-12
Court Decision / Holding: The appeal is allowed to the extent of enhancing the compensation as detailed: monthly income fixed at Rs. 14,000; future prospects added at 40% yielding Rs. 19,600 for calculation; 50% deduction for personal expenses; multiplier 18; loss of dependency recalculated to Rs. 21,16,800; additional sums for loss of love and affection and loss of estate adjusted per Magma v. Nanu Ram and Pranay Sethi; funeral expenses corrected to Rs. 10,000 cap and excess deducted. Overall additional compensation fixed at Rs. 5,41,800. The insurer is directed to deposit this amount with interest and costs within three months. The appeal is allowed to that extent; no order as to costs.
Final Disposition: Appeal partly allowed; enhanced compensation as stated; insurer directed to deposit within three months; no costs.

Parties to the Case

Appellants / Petitioners

K.M. Abdul Salam
Noorjahaan
JAVAD K A

Respondents

The HDFC ERGO General Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V.P. Mohammed Niyaz
• Smt. Augnes Lovely Francis
• Sri. M.P. Muhammad Fazil
• Sri. K. Ronald Jose

Counsels for Respondents

• Sri. K.B. Ramanand

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA No. 558 of 2015) heard by a single Judge of the Kerala High Court (Ernakulam) challenging an award of Rs. 16,98,000 passed by the Motor Accidents Claims Tribunal, Kottayam, in O.P.(MV) No. 982/2012 arising from a death on 8.1.2012 of Fasila, aged 21. The claim petition was filed by the appellants (parents and sister of the deceased) seeking compensation on account of loss of dependency, love and affection, loss of estate and funeral expenses, arguing that the deceased, a B.Tech graduate with employment prospects at M/s. Aabasoft, earned and would have earned considerably more than the Tribunal assessed. The Tribunal fixed the monthly income at Rs. 10,000, with a future prospect addition, and applied a multiplier of 18, arriving at a dependency loss of Rs. 16,20,000. The appellants challenged the quantum, leading to a detailed re-evaluation by the High Court. The court increased the monthly income to Rs. 14,000 after considering the deceased’s qualifications and potential, added 40% toward future prospects (raising the monthly figure to Rs. 19,600 for calculation), and applied a 50% deduction for personal living expenses. It re-calculated the loss of dependency as Rs. 21,16,800 and adjusted other heads (loss of love and affection, loss of estate, funeral expenses) in light of Supreme Court precedents (Pranay Sethi and Magma v. Nanu Ram). It ultimately directed an additional compensation of Rs. 5,41,800 and allowed the appeal to that extent, with no costs. The insurer is directed to deposit this enhanced amount within three months.

Legal Doctrines & Maxims

Filial consortium (parents entitled to compensation under Magma General Insurance Co. Ltd. v. Nanu Ram and Others)
Pranay Sethi guidelines for computation of compensation (loss of estate, funeral expenses, and related heads)
Future prospects: 40% addition for a 21-year-old in dependency calculation
Deduction for personal expenses: 50%
Non-double-compensation principle: compensation for loss of love and affection offset against consortium

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal erred in fixing the monthly income at Rs. 10,000 despite the deceased’s educational qualifications (B.Tech in Computer Science) and potential for higher earnings. They argued for a higher recurring income, considering a starting monthly package and a likely increment, and for the inclusion of future prospects at a substantial rate. They relied on Ext. A1 (employer’s statement) indicating earnings and a possible Rs. 5,000 increment after the training period. Given her education and job prospect with Aabasoft Infopark, the claimants argued for a higher overall compensation, including enhanced loss of dependency, larger filial consortium for parents (Rs. 40,000 each), and appropriate amounts for loss of estate and funeral expenses in line with Pranay Sethi and Magma v. Nanu Ram. They urged the Court to adopt a holistic approach to quantum reflecting life expectancy and earning capacity, to ensure just compensation for the family.

Contentions of Respondents

The respondent insurer contended that the Tribunal’s assessment should be maintained and disputed the higher income figures and the application of future prospects. It argued that the evidence did not justify a drastic upward revision of income beyond Ext. A1, that the employer’s statement should not be overruled, and that expenses and heads should be adjusted conservatively. It opposed large consortium and estate payments, and suggested that the Tribunal’s original award should stand subject to statutory adjustments. In short, the insurer urged restraint in enhancing compensation and argued against aggressive expansion of the claim under the various heads.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Magma General Insurance Co. Ltd. v. Nanu Ram and Others	2018 ACJ 2782	Positive	Used to justify filial consortium awards in favor of parents, supporting higher consortium damages.
National Insurance Company Ltd. v. Pranay Sethi	2017(4)KLT 662(SC)	Positive	Guides the calculation of heads like loss of estate, funeral expenses, and future prospects; applied to adjust several heads of compensation.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against K.M. Abdul Salam; Noorjahaan; JAVAD K A v. The HDFC ERGO General Insurance Company Ltd. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942 ## MACA.No.558 OF 2015(B) AGAINST THE AWARD DATED 20.09.2014 IN OP(MV)No.982/2012 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM ## APPELLANTS/PETITIONERS: 1 K.M. ABDUL SALAM AGED 60 YEARS S/O.SAYED MOHAMMED, DARUSSALAM HOUSE, KUMMANAM P O, KOTTAYAM 2 NOORJAHAN AGED 52 YEARS W/O.K.M.ABDUL SALAM, -DO3 JAVAD K A AGED 21 YEARS S/O.K M ABDUL SALAM,-DO- BY ADVS. SRI.V.P.MOHAMMED NIYAZ SMT.AUGNES LOVELY FRANCIS SRI.M.P.MUHAMMAD FAZIL SRI.K.RONALD JOSE ## RESPONDENT/3RD RESPONDENT: THE H.D.F.C ERGO GENERAL INSURANCE COMPANY LTD, KOTTAYAM686001,REP BY ITS MANAGER ## R1 BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.558 of 2015 2 ## JUDGMENT Dated this the 12th day of March 2021 ... The appellants are the claimants in O.P. (MV)No.982 of 2012 on the file of the Motor Accidents Claims Tribunal, Kottayam. 2. The claim petition was filed by the petitioners seeking compensation for the death of one Fasila who is the daughter of appellants 1 and 2 and sister of the 3[rd] appellant. The accident occurred on 8.1.2012. According to the appellants, the deceased was aged 21 years and she had successfully completed B.Tech in Computer Science engineering course from KMCT, College of Engineering, Kozhikode. It was further contended that, she had also obtained a job at M/s. Aabasoft in Infopark, Kochi as a training programmer and she was also attending some private work. It was contended that, from the above employments she was earning Rs.25,000/- per month. It was also M.A.C.A.No.558 of 2015 3 contended that, had she been alive, she would have been earned Rs.50,000/- per month. On the strength of the above, they claimed an amount of Rs.20,66,500/- which is limited to Rs.15 lakhs. 3. The Insurance Company filed a written statement admitting the coverage of policy but disputed the liability on various grounds. 4. The evidence in this case consists of documentary evidence of Exts. A1 to A14 from the side of the appellants and PW1, who was the employer of the deceased, was also examined. No evidence was adduced from the side of the respondents. 5. After trial, the Tribunal passed an award of Rs.16,98,000/- and the respondent herein was directed to deposit the said amount along with interest at the rate of 8.5% per annum from the date of petition till its realization. 6. The above appeal is filed by the petitioners challenging the quantum of compensation M.A.C.A.No.558 of 2015 4 fixed as above. 7. Heard the learned counsel for the appellants and the learned counsel for the respondent-Insurance Company. 8. The main contention putforward by the learned counsel for the appellants is that the monthly income taken by the Tribunal is only at Rs.10,000/- which is on lower side. On going by the materials available it can be seen that, in order to establish the monthly income, the appellants have produced Ext.A1 which was marked through PW1, wherein it is mentioned that, the deceased was employed in their establishment with a monthly stipend of Rs.10,000/-. It was also stated therein that she had a right of increment of Rs.5,000/after four months of her training period. Considering the above facts, particularly the educational qualification of the deceased and also the potential capacity of the deceased in getting higher income in future, this Court is of the view M.A.C.A.No.558 of 2015 5 that the monthly income of Rs.10,000/- fixed by the Tribunal is liable to be interfered with. This Court is of the view that in the facts and circumstances of the case, an amount of Rs.14,000/- would be ideal to meet the ends of justice. Accordingly, the monthly income of the deceased is fixed as Rs.14,000/-. As she is aged 21 years, while computing the compensation for loss of dependency, an addition of 40% of the monthly income has to be added towards future prospects. Thus, the monthly income for the purpose of computation of compensation has to be taken as Rs.19,600/- [Rs.14,000+5600]. Since the deceased was unmarried, 50% of the monthly income has to be deducted towards personal expenses. The multiplier applicable in this case is 18. Considering the above aspects, the compensation for loss of dependency has to be re-fixed as Rs.21,16,800/[Rs.19600x12x18x50/100]. The compensation awarded by the Tribunal in this head is Rs.16,20,000/-. If M.A.C.A.No.558 of 2015 6 that be so, the additional amount payable to the appellants is Rs.4,96,800/-. 9. It is seen that an amount of Rs.30,000/- has been granted towards loss of love and affection. The appellants are the parents and the sister of the deceased. Going by the principles laid down by the Hon’ble Supreme Court in Magma General Insurance Co.Ltd v. Nanu Ram and Others [2018 ACJ 2782], the parents are entitled for filial consortium at the rate of 40,000/- each. Therefore, the appellants 1 and 2 are entitled for an amount of Rs.40,000/- each. It is a settled position of law that, when compensation for loss of consortium is awarded, it is not necessary to award the compensation for loss of love and affection. Hence, the amount awarded by the Tribunal under the head of loss of love and affection can be adjusted against the compensation for loss of consortium. Thus, additional compensation receivable by the appellants under the head of consortium shall be M.A.C.A.No.558 of 2015 7 Rs.50,000/- (Rs.80,000-30,000). Under the head of loss of estate, the amount awarded by the Tribunal is Rs.10,000/-, whereas, going by the principles laid down by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662(SC)] the same should have been Rs.15,000/-. Thus the appellants are entitled a further amount of Rs.5,000/- under this head. It is seen that the Tribunal awarded an amount of Rs.25,000/- under the head of funeral expenses which is in excess of Rs.10,000/- going by the principles of Pranay Sethi’s case (supra). Therefore, the excess amount has to be deducted from the additional compensation found to be payable in this appeal. Accordingly, the additional amount of compensation is fixed as Rs.5,41,800/-[Rs.4,96,800+50,000+5,000-10,000] [Rupees Five lakhs fortyone thousand and Eight hundred only]. The respondent-Insurance Company is directed to deposit the said amount along with interest and cost as ordered by the Tribunal within M.A.C.A.No.558 of 2015 8 a period of three months from the date of receipt of a copy of this judgment. The appeal is allowed to that extent. No order as to costs. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk