High Court of KeralaSingle Judge2023-03-21Appeal allowed; modified the award; enhanced co...

Lissy and others v. Haja Hussain and others

Case / Petition Number:MACA 1155 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mary Joseph
Judgment Date: 2023-03-21
Court Decision / Holding: The appeal is allowed. The High Court reassesses the compensation: monthly income fixed at ₹6,000 with a 25% addition for future prospects; loss of dependency recalculated; conventional heads adjusted following Pranay Sethi, resulting in a total additional compensation of ₹4,94,500 with 7.5% interest from the date of filing until realisation. The 3rd respondent is exonerated from paying interest for 106 days due to delay in filing. The right of recovery by the Tribunal against respondents 1 and 2, after depositing in favour of petitioners, is maintained. The Tribunal is directed to pay the amounts within two months of certified copy and to collect any additional court fee from the petitioners where applicable. M.A.C.A stands allowed accordingly.
Final Disposition: Appeal allowed; modified the award; enhanced compensation and imposed timelines with recovery rights and interest terms.

Parties to the Case

Appellants / Petitioners

Lissy
LiJoy P.Joy
LiYa P.Joy
Mariyam

Respondents

Haja Hussain
Sabu
The Manager, New India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri.Reji George
• Sri.Gopakumar G

Counsels for Respondents

• Sri.John Joseph Vettikad
• Sri.C.Joseph Johny

Case Synopsis & Summary

This appeal, originating from the Motor Accidents Claims Tribunal, Perumbavoor, challenges an award dated 10 October 2013 in O.P.(M.V.) No.1011/2007. The petitioners, legal representatives of Ouseph Joy, died in a motor-vehicle collision on 14 April 2007 when a Mini Lorry abruptly turned left, causing the timber projecting from the lorry to strike him. The Tribunal held the driver negligent and awarded ₹5,95,000 as compensation, directing the insurer to deposit the amount and recover it from the owner and driver. The respondents contested the quantum, arguing that the evidence failed to prove the deceased’s age, occupation, and income and that the compensation was excessive. The 3rd respondent admitted insurance coverage; the other respondents were ex parte. The petitioners contended that the deceased, a businessman, earned ₹6,000 per month, not ₹3,500 as fixed by the Tribunal, and urged enhancement. They invoked the Supreme Court’s Pranay Sethi principles to align heads of compensation (loss of estate, funeral expenses, loss of consortium, etc.) with modern standards. The High Court, while upholding negligence, allowed a reassessment: it fixed monthly income at ₹6,000, added 25% for future prospects, and recalculated dependency to yield a higher aggregate, including adjustments to funeral expenses and loss of estate, with total additional compensation of ₹4,94,500 at 7.5% interest. The appeal is allowed accordingly, with directed recoveries and payment timelines.

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioners argued that the Tribunal erred in fixing the deceased's monthly income at ₹3,500, especially since Ouseph Joy ran a business and was earning about ₹6,000 per month at the relevant time. He submitted that the pleadings in the Original Petition established the income, and the Tribunal's notional fixation should be rejected. He urged re-fixation at ₹6,000 per month, with an addition of 25% for loss of future prospects, given the deceased’s age (46) and the 2007 date of death, to reflect reasonable expectations and actual earnings. He contended that the Tribunal’s assessment of the conventional heads was incorrect: loss of estate at ₹2,500, funeral expenses at ₹25,000, and loss of love and affection and pain and suffering at ₹1,00,000 must be aligned with the Supreme Court’s directions in Pranay Sethi (and its follow-on) to ensure fair compensation. Accordingly, he argued that the total compensation payable to four petitioners should be significantly higher than the Tribunal’s figure and that the insurer should not be allowed to withhold payment, except as provided by law. He further submitted that the right to recover from the owner and driver should be maintained, but not at the cost of denying reasonable family compensation.

Contentions of Respondents

Counsel for the respondents stressed that the Tribunal’s assessment was proper, with proof of death and negligence established. They argued the monthly income is not proven; the 6,000 claim is unsubstantiated; the Tribunal’s fixation at 3,500 may reflect a notional basis appropriate for 2007. They contended that loss of love and affection and pain and suffering at ₹50,000 and ₹5,000 respectively were within reasonable bounds, and the figures for loss of estate at ₹2,500 and funeral expenses at ₹25,000 were proper in light of the evidence and policy conditions. They also argued that, given policy violations by the driver, the insured’s liability and the right to recover from the owner and driver should be preserved to avoid unjust enrichment. They urged that no extra enhancement should be allowed beyond what the Tribunal had provided. They asserted that, due to the 106-day delay in filing the appeal, liability for interest should be adjusted: the 3rd respondent should be exonerated from interest for that period, and that the insurer should be protected unless otherwise directed by the court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
National Insurance Company Limited v. Pranay Sethi	2017 (4) KLT 662 (SC)	Positive	Court applied Pranay Sethi principles for heads of compensation (loss of estate, funeral expenses, loss of consortium, etc.).

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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 MARY JOSEPH TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 ``` ``` MACA NO. 1155 OF 2014 ``` ``` AGAINST THE AWARD DATED 10.10.2013 IN O.P(M.V) NO.1011/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANTS/PETITIONERS IN O.P(M.V) NO.1011/2007:`** ``` 1LISSY, W/O.LATE OUSEPH @ JOY, AGED 51 YEARS, EDASSERY PATTACKAL HOUSE, NEELESWARAM P.O., KOTTAMAM. 2LIJOY P.JOY, S/O.LATE OUSEPH @ JOY, AGED 27 YEARS, EDASSERY PATTACKAL HOUSE, NEELESWARAM P.O., KOTTAMAM. 3LIYA P.JOY, D/O.LATE OUSEPH @ JOY, AGED 24 YEARS, EDASSERY PATTACKAL HOUSE, NEELESWARAM P.O., KOTTAMAM. 4MARIYAM, W/O.LATE OUSEPH @ KOCHAPPU, AGED 89 YEARS, EDASSERY PATTACKAL HOUSE, NEELESWARAM P.O. KOTTAMAM BY ADVS. SRI.REJI GEORGE SRI.GOPAKUMAR G ``` ## **`RESPONDENTS/RESPONDENTS IN O.P(M.V) NO.1011/2007:`** ``` 1HAJA HUSSAIN S/O.SAIDU MUHAMMED, THOTTIYIL HOUSE, CHELAKKARA KARA, CHELAKKARA VILLAGE, THALAPPILLY TALUK, THRISSUR DIST.- 680 001 2SABU, S/O.CHACKO KUPPAKKATTIL HOUSE, KUMMALA, CHELAKKARA, THRISSUR DIST. -680 001 3THE MANAGER THE NEW INDIA INSURANCE CO.LTD., JRJ COMPLEX, OTTAPPALAM - 679 101. ``` ``` BY ADVS. R3 BY SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1155 of 2014 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 21[st] day of March, 2023`** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Perumbavoor (for short ‘the Tribunal’) on 10.10.2013 in O.P(M.V) No.1011/2007. The appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 4 in accordance with their status in the Original Petition. 3. Petitioners are the legal representatives of one Mr.Ouseph @ Joy who died in a motor accident occurred at about 10.30 p.m on 14.04.2007. At the relevant time, Mr.Ouseph @ Joy was riding his motor cycle through Angamaly-Kalady MC road and a Mini Lorry bearing Registration No.KL/7/H/1996, proceeding in front of the motorcycle abruptly took a left turn without signal and in the impact, the timber which was projecting outwards from the Mini Lorry dashed against Mr.Ouseph and thrown him on to the road. He sustained serious ``` M.A.C.A.No.1155 of 2014 ``` ``` 3 ``` injuries and while being transported to the hospital, succumbed to those. The accident was allegedly occurred due to the rash and negligent driving of the Mini Lorry by its driver. 4. The driver, the registered owner and the insurer of the Mini Lorry were arrayed as respondents 1 to 3 in the Original Petition. Challenge is raised by them in the appeal on hand against the quantum of compensation stands awarded. 5. The respondents were served with notice from the Tribunal. Except the 3[rd] respondent, the other respondents did not turn up to contest the Original Petition and were declared _ex parte_ . 6. Written statement was filed by the 3[rd] respondent before the Tribunal admitting issuance of a policy for the offending Mini Lorry in favour of the 2[nd] respondent covering the date of accident. Contentions were also raised to the effect that the Mini Lorry was driven by the 1[st] respondent without holding a valid and effective driving licence and badge, that the claims of the age, occupation and the monthly income of the deceased will have to be proved by the petitioners and that the claim of compensation is excessive in nature. They also sought for ``` M.A.C.A.No.1155 of 2014 ``` ``` 4 ``` recovery of the compensation amount after deposit, from the 2[nd] respondent, for permitting the 1[st] respondent to drive the vehicle without a valid and effective driving licence. 7. Evidence was adduced by both sides before the Tribunal. Exts.A1 to A7 and Exts.B1 and B2 were marked respectively by the petitioners and the 3[rd] respondent. On appreciation of the above evidence, the Tribunal arrived at a finding that the 1[st] respondent was driving the Mini Lorry in a rash and negligent manner and thereby the accident was occurred. The Tribunal also found that the fatal injuries received by Mr.Ouseph @ Joy resulted in his death and therefore the petitioners as his legal representatives are entitled to get compensation from the respondents jointly and severally. A sum of ₹5,95,000/- was also arrived at as the compensation payable to the petitioners and directed the 3[rd] respondent to deposit the same in favour of the petitioners and to get the same recovered from respondents 1 and 2. Being aggrieved by the quantum of compensation stands awarded by the Tribunal, the appeal on hand is filed by the petitioners. 8. Sri.Reji George, the learned counsel for the petitioners contended that the Mr.Ouseph was a businessman at ``` M.A.C.A.No.1155 of 2014 ``` ``` 5 ``` the relevant time of his death, earning ₹6,000/- monthly. According to him, the pleadings raised by the petitioners in the Original Petition were discarded by the Tribunal and the monthly income of the deceased was fixed as ₹3,500/- on a notional basis. According to him, ₹3,500/- fixed by the Tribunal notionally is too low. He canvassed for a refixation of the monthly income and calculation of compensation on its basis. 9. The learned counsel also raised a contention that ₹2,500/- was awarded by the Tribunal as compensation towards loss of estate. And ₹25,000/- towards funeral expenses. According to him, as per **National Insurance Company Limited v. Pranay Sethi** [2017 (4) KLT 662 (SC)] petitioners are entitled to get ₹16,500/- under each of those heads. Therefore, a modification of the compensation in tune with the directions of the Apex Court in the case supra is required. 10. The learned counsel for the 3[rd] respondent contended on the contrary that ₹50,000/- and ₹5,000/- respectively were awarded by the Tribunal towards loss of love and affection and pain and suffering, which according to him, the petitioners are disentitled to. The learned counsel has further pointed out that ``` M.A.C.A.No.1155 of 2014 ``` ``` 6 ``` in view of the delay of 106 days occurred in filing the appeal, the 3[rd] respondent is required to be exonerated from its liability to pay interest for that period. The learned counsel has also raised a contention that in view of the violation of the policy conditions stands established by evidence, the right to have the compensation amount recovered under the impugned award is required to be maintained. 11. As per the claims of the petitioners, the deceased was a businessman earning ₹6,000/- monthly. For the reason that evidence was not adduced to substantiate the above claims that the Tribunal was constrained to fix the monthly income as ₹3,500/-. The accident was occurred in the year 2007 and therefore this Court finds basis in the contention of the learned counsel that the monthly income fixed is too low. Therefore, the same is refixed as ₹6,000/-. The victim was aged 46 years at the relevant time of the accident and therefore the petitioners are entitled to have an addition of 25% to the monthly income fixed, in consideration of loss of future prospects on account of his accidental death. ``` M.A.C.A.No.1155 of 2014 ``` ``` 7 ``` 12. When loss of dependency is calculated with the modified factors, ₹8,77,500/- is arrived at [Rs.7,500/(₹6,000/- + 25% of ₹6,000/-) x 12 x 13 X 3/4 ]. ₹4,09,500/stands awarded by the Tribunal when deducted, the petitioners will get ₹4,68,000/- (₹8,77,500/- - ₹4,09,500) as additional compensation. 13. Under the conventional heads of loss of estate and funeral expenses, the petitioners are entitled to get ₹16,500/each. But the Tribunal has awarded ₹25,000/- as compensation towards funeral expenses, which is in excess by ₹8,500/(₹25,000/- - ₹16,500/-) and when that is deducted, ₹16,500/only is payable to the petitioners. 2,500/- is found awarded by₹ the Tribunal as compensation towards loss of estate, whereas the petitioners are entitled to get ₹16,500/-. Therefore the petitioners will get 14,000/- ₹ as additional compensation under that head. It is found that the Tribunal has awarded ₹1,00,000/- towards loss of consortium whereas each of the petitioners are entitled to get ₹44,000/- in view of **Pranay Sethi** supra. Thus the total compensation payable is ₹1,76,000/- (₹44,000/- x 4) and therefore the petitioners will ``` M.A.C.A.No.1155 of 2014 ``` ``` 8 ``` get ₹76,000/as additional compensation (₹1,76,000/- - ₹1,00,000/-). Petitioners are disentitled to get ₹55,000/(₹50,000/- + 5,000/-) stands awarded by the Tribunal towards₹ loss of love and affection and pain and suffering. Therefore, ₹55,000/- is liable to be deducted from the total additional compensation arrived at. 14. In the above manner of reassessment, the petitioners will get ₹4,94,500/- (Rupees Four lakhs ninety four thousand five hundred only) [(₹14,000/- + ₹76,000/- + ₹4,68,000/-) - (₹8,500/- + ₹50,000/- + ₹5,000/-)] as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The appeal on hand being filed with a delay of 106 days, the 3[rd] respondent is exonerated from paying interest for that period. The 3[rd] respondent shall pay the above sum with the interest fixed within a period of two months from the date on which a certified copy of this judgment is received in accordance with Circular No.03/2019 issued by this Court on 06.09.2019. 15. The right of recovery granted by the Tribunal in favour of the 3[rd] respondent from respondents 1 and 2 after depositing the same in favour of the petitioners is maintained. ``` M.A.C.A.No.1155 of 2014 ``` ``` 9 ``` 16. Since the total compensation awarded infavour of the petitioners exceeds the claim, steps shall be taken by the Tribunal to collect additional court fee from the petitioners. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** ``` NAB ```