High Court of KeralaSingle Judge2024-03-26Partly allowed in part; enhanced compensation a...

Kunhukuttan and others v. Shaji K. and others

Case / Petition Number:MACA No. 159 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Sudha
Judgment Date: 2024-03-26
Court Decision / Holding: The impugned Award is partly modified. The Court increased the notional income to ₹11,000 per month and added 40% as future prospects per Pranay Sethi, resulting in an increased annual income of ₹15,400. It also recalculated compensation for loss of love and affection to the child and loss of consortium, bringing the total compensation to ₹20,42,000. The insurer is directed to deposit the enhanced amount with interest at 7.5% per annum and costs within 60 days; on deposit, the Tribunal shall disburse the amount accordingly. Interlocutory applications, if any, stand closed.
Final Disposition: Partly allowed in part; enhanced compensation and directed deposit; interlocutory applications closed.

Parties to the Case

Appellants / Petitioners

Kunhukuttan
Kamalakshy
Jisha
Nivesh Krishna

Respondents

Shaji K.
Subinraj M.S.
Oriental Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Abu Mathew
• Sri Aju Mathew
• SMT. P.C. Jeeva
• SMT. T. Manasy

Counsels for Respondents

• George Cherian (Sr.)
• K.S. Santhi
• Latha Susan Cherian

Case Synopsis & Summary

This is a Motor Accident Claims Appeal under Section 173 of the Motor Vehicles Act, 1988, arising from an award of the MACT, Ottapalam, in O.P. (MV) No. 642 of 2017, for the death of Anil Kumar who rode a scooter when he was struck by a tipper lorry driven by the first respondent. The Tribunal held the driver negligent and awarded ₹10,14,000 with interest at 9% per annum and costs to the petitioners, who are the deceased’s parents, wife, and minor child. The appellants challenged the award, contending that the deceased’s income was under-assessed and future prospects were not considered, and that compensation for loss of love and affection and loss of consortium were inadequately granted. They relied on Ramachandrappa to increase notional income and on Pranay Sethi to introduce future prospects. The court agreed that the notional income should be higher (₹11,000 per month) and that a 40% addition for future prospects should apply, given the deceased’s age of 35. It also recalculated compensation for loss of love and affection and loss of consortium, adjusting amounts to ₹1.60 lakh and ₹1.20 lakh respectively, and ultimately increased total compensation to ₹20.42 lakh with 7.5% interest. The insurer is directed to deposit the enhanced amount within 60 days, and interlocutory applications are closed. The appeal is partly allowed in part, with disbursement to follow on deposit.

Provisions of Law Cited

Section 173 of Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Ramachandrappa vs Manager, Royal Sundaram Allian Co.Ltd., (2011) 13 SCC 236
National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the Tribunal erred in not considering the deceased’s true income and future prospects. Relying on Ramachandrappa (2011) SCC 236, they urged that the notional income of the coolie should be increased from ₹7,000 to ₹11,000 per month. They also invoked Pranay Sethi (2017) to claim a 40% addition for future prospects, given the deceased’s age of 35, and asserted entitlement to enhanced compensation for loss of love and affection and loss of consortium for the child and other dependents.

Contentions of Respondents

The respondents admitted negligence only to the extent found by the Tribunal and contested any higher quantum of compensation; they contended that the awards should stand as is and did not advance any substantive argument for increasing compensation beyond the Tribunal’s award in response to the pleaded heads.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Allian Co. Ltd.	(2011) 13 SCC 236	Positive	Court relied on Ramachandrappa to fix a higher notional income (₹11,000/month) for the deceased, a coolie, illustrating the doctrine for determining notional income in similar cases.
National Insurance Company Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Court used the Pranay Sethi doctrine to add 40% future prospects for a self-employed individual under 40, influencing the overall compensation calculation.

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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 C.S. SUDHA** **TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946** **MACA NO. 159 OF 2019** **AGAINST THE AWARD DATED 11.10.2018 IN OPMV NO.642 OF 2017 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM.** ## **APPELLANTS/PETITIONERS:** - **1 KUNHUKUTTAN, AGED 64 YEARS, S/O. ERIYAN, THAYATTUPADI HOUSE, NAGALASSERY PANCHAYATH, NAGALASSERY P.O., PATTAMBI TALUK, PALAKKAD DISTRICT,PIN-679 533.** - **2 KAMALAKSHY, AGED 61 YEARS, W/O. KUNHUKUTTAN,THAYATTUPADI HOUSE, NAGALASSERY PANCHAYATH, NAGALASSERY P.O., PATTAMBI TALUK, PALAKKAD DISTRICT,PIN-679 533.** - **3 JISHA, AGED 27 YEARS, W/O. LATE ANILKUMR,THAYATTUPADI HOUSE, NAGALASSERY PANCHAYATH, NAGALASSERY P.O., PATTAMBI TALUK, PALAKKAD DISTRICT,PIN-679 533** - **4 NIVESH KRISHNA, AGED 2 YEARS, S/O. LATE ANILKUMAR, THAYATTUPADI HOUSE, NAGALASSERY PANCHAYATH, NAGALASSERY P.O., PATTAMBI TALUK, PALAKKAD DISTRICT, PIN-679 533, MINOR REPRESENTED BY HIS MOTHER 3RD APPELLANT JISHA, AGED 27 YEARS, W/O. LATE ANILKUMAR** **BY ADVS. ABU MATHEW SRI.AJU MATHEW SMT.P.C.JEEVA SMT.T.MANASY** ## **RESPONDENTS/RESPONDENTS:** **1 SHAJI K., AGED 39 YEARS S/O. MODIEEN, KAKASERY VALAPIIL HOUSE, KOTHACHIRA, PERINGODE P.O., PATTAMBI TALUK, PALAKKAD DISTRICT,PIN-679 535.** M.A.C.A.No.159 of 2019 2 - **2 SUBINRAJ M.S., AGE NOT KNOWN, S/O. SELVARAJ, CHALIYATH PARAMBIL HOUSE, VATTENAD P.O., KOOTTANAD,PATTAMBI TALUK, PALAKKAD DISTRICT, PIN-679 533** - **3 ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, 1ST FLOOR JOTHI SUPER BAZAR, THODUPUZHA, IDUKKI DISTRICT, PIN-685 584, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.159 of 2019 3 ## **C.S.SUDHA, J.** ## **------------------------------------** ## **M.A.C.A.No.159 of 2019** **---------------------------------------------------Dated this the 26[th] day of March 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P. (MV)No.642/2017 on the file of the Motor Accidents Claims Tribunal, Ottapalam (the Tribunal), aggrieved by the amount of compensation granted by Award dated 11/10/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. The petitioners are the parents, wife and child of Anil Kumar, the deceased. According to the petitioner, on 14/05/2017 M.A.C.A.No.159 of 2019 4 at about 08:30 am, while Anil Kumar was riding his scooter bearing registration No.KL-52/J-4728 through KoottanadAmakkavu public road, a tipper lorry bearing registration No.KL- 52/L-2260 driven by the first respondent, in a rash and negligent manner knocked him down. Anilkumar suffered fatal injuries and though he was rushed to the hospital, he succumbed to the injuries on the same day. The first respondent driver; the second respondent owner and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence the petitioners claimed an amount of ₹25 lakhs as compensation under various heads. 3. The first and the second respondents jointly and the third respondent separately filed written statement denying any negligence on the part of the first respondent. The third respondent admitted that the offending vehicle had a valid insurance policy at the time of the incident. 4. Before the Tribunal, no oral evidence was adduced by M.A.C.A.No.159 of 2019 5 either side. Exts.A1 to A6 were maked on the side of the petitioners. No documentary evidence was produced by the respondents. 5. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the first respondent resulting in the incident and hence awarded an amount of ₹10,14,000/- with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioners have come up in appeal. 6. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 7. Heard both sides. 8. The learned counsel for the petitioners relying on the dictum in **Ramachandrappa vs Manager, Royal Sundaram Allian Co.Ltd, (2011) 13 SCC 236** submitted that the notional M.A.C.A.No.159 of 2019 6 income of the deceased fixed at ₹7,000/- by the Tribunal is incorrect. In the aforesaid decision, the monthly income of a coolie in the year 2004 was taken as ₹4,500/-. In the case on hand also the victim is a coolie. The incident took place in the year 2017. Therefore, the argument is that the notional income fixed needs to be enhanced based on **Ramachandrappa** ( _Supra_ ). There is certainly force in the submission made. Hence, based on the dictum in **Ramachandrappa** ( _Supra_ ), the notional income is fixed at ₹ **11,000** /- per month. 9. It is brought to my notice that the determination of income while computing compensation has to include future prospects also but the same has not been done by the Tribunal on which account also, the award needs to be interfered with. As per the dictum in **National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680** , in case the deceased was self employed an addition of 40% of the established income should be given when the deceased was below the age of 40 years. Here the M.A.C.A.No.159 of 2019 7 petitioner was 35 years at the time of the incident. Therefore, 40% of ₹11,000/- comes to ₹4,400/-. Hence the total income would come to ₹15,400/-. 10. It is also brought to my notice that no compensation has been awarded towards 'loss of consortium' or 'loss of love and affection' and hence based on the dictum in **Pranay Sethi** ( _Supra_ ) compensation at the rate of ₹40,000/- is required to be granted. On going through the impugned award, it is seen that towards compensation for loss of love and affection to the child, ₹1,00,000/- has been awarded and towards loss of consortium ₹40,000/-, that is, a total amount of ₹1,40,000/- is seen granted. In the light of the dictum in **Pranay Sethi** ( _Supra_ ), the petitioners are entitled to an amount of ₹40,000/- each under the said head, which comes to ₹1,60,000/-. ₹1,40,000/- has already been granted. Hence the petitioners are entitled to the balance amount of ₹20,000/- also. M.A.C.A.No.159 of 2019 8 ## 11. The impugned Award is partly modified thus - |Sl. No.|Head of claim|Amount claimed|Amount awarded by Tribunal|Modified in appeal| |---|---|---|---|---| |1|Transport to hospital|₹10,000/-|₹3,000/-|₹3,000/- (No change)| |2|Damage to clothing and articles|₹10,000/-|₹1,000/-|₹1,000/- (No change)| |3|Funeral expenses|₹1,00,000/-|₹15,000/-|₹15,000/- (No change)| |4|Compensation for pain and suffering|₹1,00,000/-|-|- (No change)| |5|Loss of dependency|₹18,00,000/-|₹8,40,000/-|₹18,48,000/- *[11,000 (MI)+ 4,400 (FI) – 5133.33 (deduct 1/3 x 12M x 15 (MR)]| |6|Compensation for loss of love and affection to the child|₹2,00,000/-|₹1,00,000/-|₹40,000/-| |7|Compensation for loss of estate|₹2,00,000/-|₹15,000/-|₹15,000/- (No change)| |8|Compensation for loss of consortium|₹4,00,000/-|₹40,000/-|₹1,20,000/- *(₹40,000/-x 3)| |12.|Total|₹28,20,000/-|₹10,14,000/-|₹20,42,000/-| [* FI – Future Income; M – Month; MI – Monthly Income; MR - Multiplier] In the result, the appeal is allowed in part by enhancing the compensation by a further amount of ₹ **10,28,000** /- (total compensation ₹20,42,000/-, that is, ₹10,14,000/- granted by the Tribunal + ₹10,28,000/- in appeal) with interest at the rate of M.A.C.A.No.159 of 2019 9 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **Sd/C.S.SUDHA JUDGE** Jms