High Court of KeralaSingle Judge2024-04-05The appeal is allowed to the extent as above.

K.P. Xavier and others v. Shanel Souza and Others

Case / Petition Number:MACA NO.2657 OF 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2024-04-05
Court Decision / Holding: The appeal is allowed to the extent stated: the insurer is directed to deposit enhanced compensation of Rs 4,29,220 with interest at 8% per annum from the date of petition until deposit before the MACT, within two months. The Tribunal shall disburse the amount to appellants 1–4 in the ratio 40:40:10:10 after accounting for any liabilities of the appellants (tax, balance court fee, and legal benefit fund). No order as to costs.
Final Disposition: The appeal is allowed to the extent as above.

Parties to the Case

Appellants / Petitioners

K.P.Xavier
Mrs. Mary Xavier
Roshni Xavier
Ancy Xavier

Respondents

Shanel Souza S/o.Simon Souza
Late Mr. Sharon Souza represented by his father and legal representative Mr. Simon Souza
Reliance General Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri K.V.Rajan

Case Synopsis & Summary

This appeal (MACA No.2657 of 2016) arises from an award by the Motor Accidents Claims Tribunal, North Paravur, in OP(MV) No.434 of 2012, relating to the death of Roshan Xavier in a road traffic collision on 16 June 2012. The appellants are the legal heirs of Roshan Xavier, challenging the tribunal’s awarded compensation of Rs.11,51,000 for inadequacy. Roshan, a 27-year-old service adviser, earned Rs.10,272 monthly and died when the motorcycle he rode as pillion, driven by the second respondent, collided with rash and negligent driving; the rider died earlier. Respondents 1 and 2 did not contest (ex parte), while the insurer (respondent 3) admitted the policy. The appellants argue that the tribunal erred by not granting future prospects, relying on the Supreme Court’s Pranay Sethi decision to uplift income by 40%. They also contend for higher compensation on heads such as love and affection, funeral expenses, and loss of estate, and for filial consortium for parents. The court re-evaluates quantum by applying Pranay Sethi principles, increasing monthly income to Rs.14,381 (40% uplift), deducting 50% for personal expenses (since he was a bachelor), and applying a multiplier of 17, leading to a higher loss of dependency. It revises love-and-affection, funeral, and estate heads and arrives at an enhanced total of Rs.4,29,220. The insurer is directed to deposit the enhanced amount with interest, for disbursement among the appellants, while no costs are awarded.

Legal Doctrines & Maxims

Pranay Sethi doctrine on future prospects (40%)
50% deduction for personal living expenses for a bachelor (as per Pranay Sethi)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the tribunal erred by not applying the Pranay Sethi principle for future prospects, being a 27-year-old bachelor with monthly earnings of Rs 10,272. They urge 40% uplift to Rs 14,381 per month, followed by 50% deduction for personal expenses, yielding a dependency base of Rs 7,191. With a multiplier of 17, loss of dependency would be Rs 14,66,964, against the tribunal’s Rs 10,47,744. They further seek enhanced sums for love and affection (filial consortium of Rs 80,000 total, i.e., Rs 40,000 each for parents, and Rs 50,000 previously awarded to be adjusted), funeral expenses and loss of estate, and an overall enhanced compensation of Rs 4,29,220, after accounting for prior deductions, with penalties and interest to be deposited by the insurer.

Contentions of Respondents

The respondents opposed the enhancement, arguing that the tribunal’s award was just and adequate. They contend that the future prospects uplift, under Pranay Sethi, should not be indiscriminately applied; insurer contested while policy was admitted; two respondents were ex parte; there is no compelling evidence to justify higher compensation; therefore, the appeal should be dismissed or not disturb the award beyond permissible limits.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi and Others	(2017) 16 SCC 680	Positive	The court uses the Pranay Sethi principle to grant a 40% uplift for future prospects in calculating the dependency loss.

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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 SOPHY THOMAS`** ``` FRIDAY, THE 5 [ TH ] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ## **`MACA NO. 2657 OF 2016`** ``` AGAINST THE ORDER/JUDGMENT DATED 29/4/2016 IN OPMV NO.434 OF 2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR ``` ## **`APPELLANTS/PETITIONER:`** - **`1 K.P.XAVIER AGED 59 YEARS`** - **`S/O.PAILY, FATHER OF LATE ROSHAN XAVIER,KATTIPARAMPIL HOUSE, PULAYAS ROAD,NJARAKKAL PO, ERNAKULAM DISTRICT, 682505`** - **`2 MRS. MARY XAVIER AGED 53 YEARS`** - **`W/O.K.P.XAVIER,KATTIPARAMPIL HOUSE, PULAYAS ROAD,NJARAKKAL PO`** - **`3 MISS ROSHNI XAVIER AGED 28 YEARS`** - **`D/O.K.P.XAVIER,KATTIPARAMPIL HOUSE, PULAYAS ROAD, NJARAKKAL PO`** - **`4 MISS. ANCY XAVIER AGED 24 YEARS`** - **`D/O.K.P.XAVIER,KATTIPARAMPIL HOUSE, PULAYAS ROAD, NJARAKKAL PO`** - **`BY ADV SRI.K.V.RAJAN`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SHANEL SOUZA S/O.SIMON SOUZA, H.NO. 1/232 THERAKKAL HOUSE,NJARAKKAL PO, VYPIN, ERNAKULAM 682056`** - **`2 LATE MR. SHARON SOUZA REPRESENTED BY HIS FATHER AND LEGAL REPRESENTATIVEMR. SIMON SOUZA, H.NO. 1/232-THERAKKAL HOUSE, NJARAKKAL PO, VYPIN,ERNAKULAM 682505`** - **`3 RELIANCE GENERAL INSURANCE CO. LTD. VISHNU BUILDING, KP.VALLON ROAD,KADAVANTHRA PO, KOCHI 682020`** MACA NO.2657 OF 2016 2 ``` OTHER PRESENT: ``` ## **`SMT.K.S.SANTHI`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA NO.2657 OF 2016 3 ## **`J U D G M E N T`** ``` This appeal is at the instance of the ``` ``` petitioners in OP(MV) No.434 of 2012 on the file ``` ``` of Motor Accidents Claims Tribunal, North Paravur, who are the legal heirs of deceased Roshan Xavier, challenging the award on the ground of inadequacy of compensation. ``` ``` 2. Sri.Roshan Xavier met with a road traffic ``` ``` accident on 16/6/2012 at 10.45 pm while he was riding pillion on a motorcycle, ridden by the 2 nd ``` ``` respondent-Sharon Souza in a rash and negligent ``` ``` manner. The motorcycle skidded and overturned, and ``` ``` as a result, Sri.Roshan Xavier sustained serious head injuries, and died instantaneously. He was a Service Advisor earning monthly income of Rs.10,272/-. His legal heirs approached the ``` ``` Tribunal claiming compensation of Rs.26 lakh, but ``` MACA NO.2657 OF 2016 4 ``` the Tribunal awarded only Rs.11,51,000/-. Hence ``` ``` this appeal. ``` `3. The 1st respondent was the owner of the` ``` offending motorcycle, the 2nd respondent was its ``` ``` rider, and the 3rd respondent was its insurer. ``` ``` Since the 2nd respondent was no more, his father was made a party as his legal representative. ``` ``` 4. Respondents 1 and 2 remained exparte before the Tribunal. The 3rd respondent insurer contested the case, but admitted the policy. ``` `5. In the appeal, notice to respondents 1 and 2` ``` was dispensed with, since the 3rd respondent ``` ``` insurer entered appearance through counsel and ``` ``` admitted the policy. ``` `6. Heard learned counsel for the appellants and` ``` learned counsel for the 3rd respondent insurer. ``` `7. The main ground urged by the appellants is` MACA NO.2657 OF 2016 5 ``` that, though the tribunal accepted the salary of deceased Roshan Xavier as per Exhibit A17 pay slips, no addition was given, towards future prospects. The deceased was a 27 year old ``` ``` bachelor drawing monthly salary of R.10,272/-. As ``` ``` per the decision National Insurance Company Ltd. v. ``` ``` Pranay Sethi and Others, [(2017) 16 SCC 680], 40% addition ought to have been given, towards his ``` ``` future prospects. Based on that decision, this ``` ``` Court is fixing his monthly income @ Rs.14,381/- (10,272 +40%). Since he was a bachelor, 50% has to ``` ``` be deducted towards his personal expenses. So the balance income would be Rs.7,191/-. The multiplier applicable is 17 as he was 27 years old. So, the compensation for loss of dependency could be assessed as Rs.14,66,964/-(7,191x12x17). After deducting Rs.10,47,744/- awarded by the Tribunal, under the head loss of dependency, they are ``` MACA NO.2657 OF 2016 6 ``` eligible to get Rs.4,19,220/-. ``` `8. Towards loss of love and affection, learned` ``` Tribunal awarded Rs.50,000/-. Relying on Pranay ``` ``` Sethi’s case cited (supra), appellants 1 and 2 who are the parents of the deceased are entitled to get filial consortium amounting to Rs.40,000/- each, and so that amount comes to Rs.80,000/-. Then Rs.50,000/- awarded towards love and affection has ``` ``` to be deducted. So the balance will be Rs.30,000/-. ``` `9. Towards funeral expenses and loss of estate,` `the appellants were eligible to get Rs.15,000/-` ``` each based on Pranay Sethi’s case. But, learned ``` ``` Tribunal awarded Rs.25,000/- each under those heads. So, Rs.10,000/- each has to be deducted from those heads. ``` `10. The compensation awarded under all other` ``` heads seems to be just and proper and hence it ``` MACA NO.2657 OF 2016 7 ``` needs no interference. ``` ## `11. The enhanced compensation awarded in this` ## `appeal is stated in the table below:-` |`Head of` `claim` `(1)`|`Amount` `awarded by` `the` `Tribunal` `(2)`| `Amount` `awarded in` `appeal` `(3)`|`Amounts` `deducted` `in` `appeal`| `Difference` `to be drawn` `as enhanced` `compensatio` `n` `(5)`| |---|---|---|---|---| |`Loss of` `dependency`|`10,47,744/` `-`| `14,66,964/-` `(1,191x12x17)`| `-`|`4,19,220/-`| |`Loss of` `love and` `affection`|`50,000/-`|`80,000/-`||`30,000/-`| |`Funeral` `expenses` `and loss of` `estate`|`25,000/-` `25,000/-`|`15,000/-` `15,000/-`|`10,000/-` `10,000/-`|| |`Total 20,000/- 4,49,220/-`||||| ``` 12. So the appellants are entitled to get ``` ``` Rs.4,29,220/- [(4,19,220+30,0000)–20,000] as ``` MACA NO.2657 OF 2016 8 ``` enhanced compensation. ``` `13. The 3 rd respondent/Insurer is directed to` ``` deposit the enhanced compensation with interest @ ``` ``` 8% per annum from the date of petition till the ``` ``` date of deposit before the Motor Accident Claims ``` ``` Tribunal concerned within a period of two months ``` ``` from the date of receipt of a copy of this ``` ``` judgment. Learned Tribunal shall disburse that amount to appellants 1 to 4 in the ratio ``` ``` 40:40:10:10 after deducting the liabilities, if ``` ``` any, of the appellants towards Tax, balance court fee and legal benefit fund. ``` ``` The appeal is allowed to the extent as above. ``` ``` No order as to costs. ``` Sd/- ## **SOPHY THOMAS,** ska ## **JUDGE**