MACA No. 3892 of 2017 and MACA No. 258 of 2018, New India Assurance Co. Ltd. v. Lillykutty Mathew and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944** ## **MACA NO. 3892 OF 2017** **AGAINST THE AWARD DATED 15.07.2017 IN OPMV 386/2014 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD. KALAMASSERRY,PATHICHERIL GARDENS, 1ST FLOOR, NH-47,CHANGANPUZHA NAGAR P.O, COCHIN,REPRESENTED BY ITS MANAGER,REGIONAL OFFICEKANDANKULATHIL TOWERS, M.G ROAD,ERNAKULAM, KOCHI 682 011** **BY ADV SRI.P.G.GANAPPAN** ## **RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 & 2:** - **1 LILLYKUTTY MATHEW AGED 51 YEARS, W/O.LATE MATHEW K. GEORGE,KOLLAPPALLIL HOUSE, SREEKANDAMANGALAM P.O,ATHIRAMPUZHA, KOTTAYAM DIST. PIN 686 562** - **2 RESHMA ELIZA MATHEW AGED 22 YEARS, D/O. LATE MATHEW K. GEORGE,KOLLAPPALLIL HOUSE, SREEKANDAMANGALAM P.O,ATHIRAMPUZHA, KOTTAYAM DIST., PIN 686 562** - **3 GREESHMA MERIN MATHEW AGED 17 YEARS, D/O. LATE MATHEW K GEORGEKOLLAPPALLIL HOUSE, SREEKANDAMANGALAM P.O, ATHIRAMPUZHA, KOTTAYAM DIST, PIN 686 562** - **4 ALEYKUTTY GEORGE AGED 83 YEARS, W/O. K.J GEORGE,KOLLAPPALLIL HOUSE, SREEKANDAMANGALAM P.O,ATHIRAMPUZHA, KOTTAYAM DIST,PIN 686 562** - **5 SATHEESH S/O. SADANANDAN, SATH VILASOM, MANCHADIMOODU,KADAKOM P.O,** - **CHIRAYINKEEZHU,THIRUVANANTHAPURAM DIST. PIN 695 304** **MACA Nos. 3892 of 2017 and 258 of 2018** **2** **6 THE MANAGING DIRECTOR IMMANUEL AVIATION & CARGO SERVICE PVT. LTDBANK JUNCTION, ALUVA PIN 683101(MINOR 3RD RESPONDENT REPRESENTED BY NATURAL GUARDIAN AND MOTHER 1ST RESPONDENT)** **BY ADVS. V.V.SHAJI T.M.RAMAN KARTHA SUSANTH SHAJI VIDYESWARI V.(K/000669/2022) REVATHY M.A.(K/001160/2022) GREESHMA T.G.(K/002281/2022)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, ALONG WITH MACA.258/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos. 3892 of 2017 and 258 of 2018** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944** **MACA NO. 258 OF 2018** **AGAINST THE AWARD DATED 15.07.2017 IN OPMV 386/2014 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENTS CALIMS TRIBUNAL -III, PATHANAMTHITTA** ## **APPELLANTS/PETITIONERS:** - **1 LILLYKUTTY MATHEW W/O. LATE MATHEW K GEORGE, KOLLAPPALLIL HOUSE,SREEKANDAMANGALAM PO, ATHIRAMPUZHA, KOTTAYAM DISTRICT.** - **2 RESHMA ELIZA MATHEW D/O.LATE MATHEW K GEORGE, KOLLAPPALLIL HOUSE,SREEKANDAMANGALAM PO, ATHIRAMPUZHA, KOTTAYAM DISTRICT.** - **3 GREESHMA MERIN MATHEW D/O. LATE MATHEW K GEORGE, KOLLAPPALLIL HOUSE,SREEKANDAMANGALAM PO, ATHIRAMPUZHA, KOTTAYAM DISTRICT.** - **4 ALLEYKUTTY GEORGE W/O. LATE K.J GEORGE, KOLLAPPALLIL HOUSE,SREEKANDAMANGALAM PO, ATHIRAMPUZHA, KOTTAYAM DISTRICT.** **BY ADVS. V.V.SHAJI SUSANTH SHAJI** ## **RESPONDENTS/RESPONDENTS:** - **1 SATHEESH S/O. SADANANDAN, SATH VILASOM, MANCHADIMOODU, KADAKOM P.O,CHIRAYIKEEZHU, THIRUVANANTHAPURAM - 695 304.** - **2 THE MANAGING DIRECTOR IMMANUEL AVIATION AND CARGO SERVICES PVT LTD, BANK JUNCTION, ALUVA - 683 101.** **MACA Nos. 3892 of 2017 and 258 of 2018** ## **4** - **3 THE NEW INDIA ASSURANCE CO. LTD KALAMASSERY, PATHICHERI GARDENS, 1ST FLOOR, NH 47, CHANGANPUZHA NAGAR P.O, COCHIN - 682 033.** **BY ADV SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, ALONG WITH MACA.3892/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos. 3892 of 2017 and 258 of 2018** **5** ## **JUDGMENT** These two appeals are being disposed of together with the consent of both sides because, the accident involved and the impugned Award of the Tribunal are the same. 2. On 01.02.2014, late Mathew K.George met with an accident and succumbed to injuries soon thereafter. The offending vehicle was driven by Sri.Satheesh and it has been proved that it was his negligence which caused it. 3. The legal heirs of deceased Mathew K.George filed OP(MV) No.386/2014 before the Motor Accidents Claims Tribunal Pathanamthitta (for short, 'Tribunal'), claiming an amount of Rs.42,15,000/- limited to Rs.40,00,000/- as compensation; but which has been allowed only to the extent of Rs.28,49,328/-. 4. The appellants in MACA No.258/2018 - who are the legal heirs of late Mathew K.George - impugn the Award of the Tribunal on the ground that the compensation awarded thereunder is exiguous; while the New India Assurance Co. Ltd., which admittedly insured the offending car, has filed MACA No.3892/2017, again assailing the Award, but on the contra- assertion that it has granted compensation in excess **MACA Nos. 3892 of 2017 and 258 of 2018** **6** of what is permissible. 5. I have heard Sri.Subhash Chand - learned counsel appearing for the appellants in MACA No.258/2018 and Sri.P.G.Ganappan – learned standing counsel for the appellant in MACA No.3892/2017. 6. Sri.P.G.Ganappan began his contentions saying that the Tribunal could not have granted more than Rs.15,000/towards funeral expenses and ought not to have granted any amount towards compensation for 'pain and suffering', since the deceased died soon after the accident. He also contended that the compensation awarded by the Tribunal under the head 'loss of estate' is excessive and could not have exceeded Rs.15,000/- going by **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]; but conceded very fairly that, under the head 'loss of consortium', instead of Rs.1,50,000/- granted by the Tribunal, Rs.1,60,000/- ought to have been awarded. He then maintained that the compensation under the head 'love and affection' granted by the Tribunal was wrong, since the legal heirs have already been compensated for dependency thereafter. He concluded his submission asserting that, in other aspects, the Tribunal has not erred, particularly because, it has correctly taken the **MACA Nos. 3892 of 2017 and 258 of 2018** **7** income of the deceased to be Rs.15,000/- per month, based on the evidence on record. 7. In response, Sri.Susanth Shaji – learned counsel for the appellants in MACA No. 258/2018, primarily argued on the quantum of compensation awarded by the Tribunal under the head ‘Dependency’, saying that it has egregiously erred in adopting the notional salary of the deceased as being only Rs.15,000/-. His contention was, when Ext.A23, which is the statutory “Form -16” issued by the Income Tax Department, certifying the income of the deceased to be Rs.2,69,666/- per annum, the Tribunal could have nothing more than to have adopted the said figure and to add 10% ‘Future Prospects’, as authorised by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662],** to then multiply it with the multiplier 13, to arrive at the compensation of Rs.28,92,240/-. He prayed that this appeal be thus allowed. 8. I have evaluated the afore submissions and have also examined the evidence on record. 9. As I have already said above, the facts involved are not in dispute, but only the quantum of the compensation awarded. **MACA Nos. 3892 of 2017 and 258 of 2018** ## **8** 10. I must say that there is force in the submissions of both Sri.P.G Ganappan and Sri.Susanth Shaji, as I will presently explain. 11. As far as compensation under the heads ‘Funeral Expenses’ and ‘Loss of Estate’ are concerned, **Pranay Sethi** (supra) declares the law without doubt that no more than Rs.15,000/-each could have been granted. Similarly, when ‘Loss of Dependency’ was computed and compensation awarded, an additional sum towards ‘Loss of Love and Affection’ could not have been granted, as has been done by the Tribunal; and similarly, in the case of compensation under the head ‘Pain and Suffering’; also could not have been granted. 12. However, on the compensation eligible to the appellants under the head ‘Loss of Dependency’, I find great merit in the submissions of Sri.Susanth Shaji that, the Tribunal could not have disregard Ext.A23, which is the “Form – 16” Certificate issued by the Income Tax Department, certifying that the deceased had drawn Rs.2,69,666/- in the assessment year, when he was injured and unfortunately killed. To add to this, 10% ‘Future Prospects’ would become entitled, and the multiplier to be adopted is 13, going by the **MACA Nos. 3892 of 2017 and 258 of 2018** **9** judgment of the Hon’ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802].** In such view, certainly, the amount suggested by Sri.Susanth Shaji namely, Rs.28,92,240/- becomes entitled to the appellants. Resultantly: - a. MACA No. 3892/2017 is allowed; reducing the compensation awarded by the Tribunal to Rs.15,000/each under the heads ‘Funeral Expenses’ and ‘Loss of Life and Estate’; and deleting the amounts granted under the heads compensation for ‘Pain and Suffering’ and ‘Loss of Love and Affection’. - b. MACA No.258/208 is allowed; enhancing the compensation under the head ‘Loss of Consortium’ to Rs.1,60,000/-, instead of Rs.1,50,000/- given by the Tribunal; and increasing the compensation under the head ‘Loss of Dependency’ Rs.28,92,240/-, instead of Rs.20,18,328/- as reflected in the impugned order. - c. The sums granted by the Tribunal under the various other heads, not covered by the directions (a) and (b) above, are left intact. Needless to say, the appellants in MACA No.258/2018 will be entitled to recover the compensation so enhanced, **MACA Nos. 3892 of 2017 and 258 of 2018** ## **10** from the appellant in MACA No.3892/2017, along with the interest at the rate of 9% per annum, as awarded by the Tribunal, from the date of Original Petition till realisation. All the other directions of the Tribunal will also remain without being altered. ## **Sd/- DEVAN RAMACHANDRAN,** **JUDGE** stu/lsn