High Court of KeralaSingle Judge2022-09-30Appeal allowed; enhanced compensation of Rs. 3,...

MACA NO. 2246 OF 2009

Case / Petition Number:MACA NO. 2246 OF 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji, J.
Judgment Date: 2022-09-30
Court Decision / Holding: The appeal is allowed; the appellants are entitled to Rs. 3,60,400 (enhanced compensation). Insurance Company to pay interest on the enhanced amount at 7% per annum from the petition date, with set-off for any earlier payments. Bank details must be supplied for NEFT/RTGS transfer within one month; if not provided, no interest shall accrue on the enhanced amount thereafter. No interest is payable for the 50-day delay in filing the appeal as per the court’s earlier order.
Final Disposition: Appeal allowed; enhanced compensation of Rs. 3,60,400; 7% interest on enhanced amount; NEFT/RTGS transfer within one month; set-off for any payments already made; no interest for 50 days delay as per prior order.

Parties to the Case

Appellants / Petitioners

Radha
Sivadasan
Sathyan
Pradeepan
Shibu
Geetha
Sheeba

Respondents

T.K. Hussain
V.P. Muhammed
M/S. National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• P. S. Sreedharan Pillai
• C. G. Preetha

Counsels for Respondents

• E. M. Joseph

Case Synopsis & Summary

On 20.11.2002, at about 8.30 p.m., the deceased, a 31-year-old bus cleaner, died when the rear left portion of the bus struck a telephone post and the head collided with an electric post near Adivaram, Kozhikode. The MACT awarded Rs. 1,88,000 with 7% interest. The appellants (the deceased's mother and legal heirs) challenged the quantum, contending that the notional income and multiplier were misapplied and the compensation awarded was inadequate. They relied on Ramachandrappa to fix notional income ( Rs. 3,500 per month for a coolie worker) and on Pranay Sethi to fix a multiplier of 16 because the deceased was 31, not the age of the surviving heirs. They also invoked Magma General Insurance Co. Ltd. v. Nanu Ram to justify a Rs. 40,000 loss of consortium per person with 10% annual increases. The Tribunal’s awards for love and affection and pain and suffering were trimmed, while loss of estate and funeral expenses were adjusted. The High Court recalculated: monthly dependency Rs. 2,450; loss of dependency Rs. 4,70,400; consortium Rs. 44,000; loss of estate Rs. 16,500; funeral Rs. 16,500; total enhanced compensation Rs. 3,60,400, with 7% interest on the enhanced amount and NEFT/RTGS transfer, subject to set-off for any prior payments. The judgment directs payment within a month and excludes interest for a 50-day delay previously ordered.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the deceased’s income was higher (Rs. 3,500 per month not Rs. 2,500) and rely on Ramachandrappa to fix notional earnings; after adding 40% future prospects and applying a 16-year multiplier per Pranay Sethi (age 31), the loss of dependency should be Rs. 4,70,400. They argue for loss of consortium to the mother at Rs. 40,000 plus 10% annual increases (per Magma General Insurance Co. Ltd. v. Nanu Ram), yielding Rs. 44,000, while challenging the Tribunal’s allowance for loss of love and affection and pain and suffering. They seek removal of personal expenses and a revised headwise award (loss of estate Rs. 16,500; funeral Rs. 16,500). They also argue that the 50-day delay in filing the appeal should be absorbed as per prior orders.

Contentions of Respondents

The respondents contend the accident was caused by the driver’s negligence and that the insurer should not be liable for enhanced damages; the 3rd respondent admits the policy but denies liability for compensation; they challenge the increased quantum and the use of notional income; the Tribunal’s award remains subject to liability and due process, and the court should maintain a conservative approach to damages.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 (13) SCC 236	Positive	Court relies on this decision to fix notional income for a coolie worker, applying it to the deceased’s monthly earnings.
National Insurance Co. Ltd. v. Pranay Sethi	2017 (4) KLT 662 (SC)	Positive	Apex Court ruling used to determine the multiplier based on the age of the deceased (16) in this case.
Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram & Others	(2018) 18 SCC 130	Positive	Cited to justify loss of consortium at Rs. 40,000 per person with 10% increases.

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 MACA NO. 2246 OF 2009 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 BASANT BALAJI FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 MACA NO. 2246 OF 2009** ## **O.P.(MV) NO.582/2003 ON THE FILE OF THE MACT, KOZHIKODE. APPELLANTS/PETITIONER NO.2 & SUPP. PETITIONERS 3 TO 8:** |**1**|**RADHA,**| |---|---| ||**W/O. LATE PERAVAKUTTY,**| ||**ADUKATH HOUSE,**| ||**P.O. KARANTHUR, (VIA)KUNNAMANGALAM.**| ||**(MOTHER OF THE DECEASED)**| |**2**|**SIVADASAN,**| ||**S/O. LATE PERAVAKUTTY,**| ||**ADUKATH HOUSE,**| ||**P.O. KARANTHUR, (VIA)KUNNAMANGALAM.**| |**3**|**SATHYAN,**| ||**S/O. LATE PERAVAKUTTY,**| ||**ADUKATH HOUSE,**| ||**P.O. KARANTHUR, (VIA)KUNNAMANGALAM,**| ||**KOZHIKODE.**| |**4**|**PRADEEPAN,**| ||**S/O. LATE PERAVAKUTTY,**| ||**ADUKATH HOUSE,**| ||**P.O. KARANTHUR, (VIA)KUNNAMANGALAM,**| ||**KOZHIKODE.**| |**5**|**SHIBU,**| ||**S/O. LATE PERAVAKUTTY,**| ||**ADUKATH HOUSE,**| ||**P.O. KARANTHUR, (VIA)KUNNAMANGALAM,**| ||**KOZHIKODE.**| |**6**|**GEETHA,**| ||**D/O. LATE PERAVAKUTTY,**| ||**ADUKATH HOUSE,**| ||**P.O. KARANTHUR, (VIA)KUNNAMANGALAM,**| ||**KOZHIKODE.**| -2- ## **MACA NO. 2246 OF 2009** **7 SHEEBA, D/O. LATE PERAVAKUTTY, ADUKATH HOUSE, P.O. KARANTHUR, (VIA)KUNNAMANGALAM, KOZHIKODE.** **BY ADVS.SRI. P.S. SREEDHARAN PILLAI SMT. C.G. PREETHA** ## **RESPONDENTS/RESPONDENTS:** **1 T.K. HUSSAIN, URATTUMMAL HOUSE, VELIYAPARAMB, ELETTIL, VATTOOLI P.O. (RC OWNER OF THE BUS NO.KL-11/J-9909).** **2 V.P. MUHAMMED, S/O. KHADIRI, VALIYAPEEDIKAYIL HOUSE, ELETTIL AMSOM, ELETTIL, VATTOLI POST, KOZHIKODE TALUK. (DRIVER OF THE BUS KL-11/J-9909).** **3 M/S. NATIONAL INSURANCE CO. LTD., THIRU NL-KA, INDUSTRIAL ESTATE, GOINDY, CHENNAI. (POLICY NO.501600/31/02/6318510).** **BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- **MACA NO. 2246 OF 2009** ## **JUDGMENT** The first appellant is the original second petitioner and appellant Nos.2 to 7 are the supplemental petitioners in O.P.(MV) No.582 of 2003 on the files of the MACT, Kozhikode. The first petitioner, father of the deceased, died during the pendency of the Petition and hence, the legal heirs of the deceased father were impleaded as supplemental petitioners in the petition. 2. The brief facts of the case is as folows:-On 20.11.2002 at about 8.30 p.m., while the deceased was sitting at the rear left side of the bus and when it reached at Adivaram, the left rear side of the bus hit on the telephone post and the head of the deceased collided with the electric post, as a result of which he died at Medical College Hospital. The accident happened due to the rash and negligent driving of the driver of the bus who is arrayed as the 2[nd] respondent. The parties are arrayed as they appeared in the original petition. -4- ## **MACA NO. 2246 OF 2009** 3. Respondents 1 and 2 filed a written statement. The 3[rd] respondent admitted the insurance coverage of the bus and denied the liability to pay compensation. It was contended that the accident happened not due to the negligence of the 2[nd] respondent. The Tribunal, relying on the oral evidence of PW1 and PW2 and Exts.A1 to A4, awarded a compensation of Rs.1,88,000/- with interest at the rate of 7% per annum from the date of petition till realisation. Aggrieved by the quantum of compensation awarded, this appeal is filed. 4. The main contention raised by the counsel for the appellants is that the deceased was aged 31 years and he was working as a cleaner in a bus earning a monthly income of Rs.6,000/-. But the Tribunal has taken the monthly income of the deceased as Rs.2,500/- only. In the absence of any document, the monthly income cannot be taken as Rs.6,000/-. Going by the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** -5- ## **MACA NO. 2246 OF 2009** **236]** , the notional monthly income to be taken for a coolie worker who met with an accident in the year 2002 is Rs.3,500/-. Relying on the said decision, the monthly income of the deceased is taken as Rs.3,500/-. Since he was below the age of 40 years and self employed, an additional of 40% can be awarded as future prospects. Hence the monthly income would be 3,500 + 1,400 = 4,900/-. Since he was a bachelor, one-half has to be deducted towards personal expenses, so the monthly income would be Rs.2,450/-. The Tribunal took the multiplier as '8' taking into consideration the age of the mother as 57. The Apex Court in **National Insurance Co. Ltd.** v. **Pranay Sethi [2017 (4) KLT 662 (SC)]** held that in death cases, the multiplier is to be taken considering the age of the deceased and not of the surviving heirs. Hence the multiplier of '16' is taken as the deceased was aged 31. Thus the compensation for loss of dependency can be worked out as Rs.2,450 x 12 x 16 = 4,70,400/-. The Tribunal has already awarded a sum of Rs.1,60,000/-. 5. Towards 'loss of consortium', the parents are entitled for 'loss -6- ## **MACA NO. 2246 OF 2009** of consortium' at the rate of Rs.40,000/-. Since the father of the deceased died before the award is passed, the legal heirs are not entitled for the amount. As per the decision reported in _**Magma General Insurance Co.Ltd.**_ **v** . _**Nanu Ram Alias Chuhru Ram & Others**_ **[(2018) 18 SCC 130],** loss of consortium to be paid is Rs.40,000/- per person. They are also entitled to 10% increase every three years as per the decision reported in _**Pranay Sethi**_ (supra). Hence, 'consortium' is only awarded to the mother at the rate of Rs.40,000+10% = Rs.44,000/-. 6. The Tribunal has awarded a sum of Rs.10,000/towards 'loss of love and affection'. When 'loss of consortium' is awarded, the claimants are not entitled to 'loss of love and affection' and hence the award of Rs.10,000/- fixed by the Tribunal under loss of love and affection, is set aside. 7. For 'loss of estate', the appellants are entitled to 15,000 + 10% increase, which is equal to Rs.16,500/-. An amount of Rs.2,000/- is awarded by the Tribunal towards -7- ## **MACA NO. 2246 OF 2009** personal expenses. The Tribunal cannot award any amount under the head 'personal expenses'. When this Court is awarding compensation for 'loss of estate', necessarily the amount awarded under the head 'personal expenses' has to be set aside and I do so. 8. With regard to funeral expenses, no amount is awarded by the Tribunal. An amount of Rs.15,000 + 10% increase every three years as per the decision reported in _**Pranay Sethi**_ (supra) 16,500/- is awarded. 9. The Tribunal has already granted a sum of Rs.15,000/- under the head 'pain and suffering'. The claimants are not entitled to 'pain and suffering' as death of the deceased occurred on the same day at the hospital. Hence the award of Rs.15,000/- fixed by the Tribunal under pain and suffering is set aside. Accordingly, the following enhancements/deductions are made to the Award passed by the Tribunal: -8- ## **MACA NO. 2246 OF 2009** |**Sl.** **No.**|**Head of Claim**|**Amt.** **Awarded by** **Tribunal** **(Rs.)**|**Amt.** **Enhanced in** **appeal (Rs.)**| |---|---|---|---| |1|Loss of dependency|1,60,000/-|4,70,400/-| |2|Loss of consortium|---|44,000/-| |3|Loss of estate|---|16,500/-| |4|Funeral expenses|---|16,500/-| |5|Love and affection|10,000/-|---| |6|Personal expenses|2,000/-|---| |7|Pain and suffering|15,000/-|---| ||Total|1,87,000/-|5,47,400/-| ||Amount enhanced = 5,47,400 – 1,87,000 =||**Rs.3,60,400/-**| In the result, the appeal is allowed and the appellants are entitled to an amount of Rs. **3,60,400** /- (Rupees three lakh sixty thousand and four hundred only) and the Insurance Company shall pay interest for the enhanced amounts at the rate of 7% per annum from the date of petition. If any amounts have already been paid, the same shall be -9- ## **MACA NO. 2246 OF 2009** granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. It is also made clear that the appellants would not be entitled for interest for the period of delay of 50 days in filing the Appeal, as per order of this Court dated 21.2.2022 in C.M.Application No.1 of 2009, on the enhanced compensation. ## **sd** **BASANT BALAJI JUDGE** bpr/dl