MACA No.507/2018 & CO No.86/2018

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` FRIDAY, THE 27[TH] DAY OF JANUARY 2023 / 7TH MAGHA, 1944 ``` ## `MACA NO. 507 OF 2018` ``` (APPEAL AGAINST THE AWARD DATED 25-9-17 PASSED BY THE MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, WAYANAD, KALPETTA IN OP(MV)NO.100/2015) ``` ## `APPELLANT/2ND RESPONDENT IN O.P.(M.V).:` ``` THE UNITED INDIA INSURANCE CO.LTD., KALPETTA BRANCH, REPRESENTED BY THE REGIONAL MANAGER, OFFICE OF THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM. ``` ``` BY ADVS.SRI.M.A.GEORGE SMT.DEEPA GEORGE ``` ## `RESPONDENTS/PETITIONERS 1 TO 5 AND THE 1ST RESPONDENT IN THE OP(MV):` - `1 PALRAJ.R, AGED 54 YEARS, S/O.LATE RAMAYYA,MARI NIVAS, NEDUMPALA ESTATE PADY, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, 673577.` - `2 MARIYAMMA, AGED 49 YEARS, W/O.PALRAJ.R, MARI NIVAS, NEDUMPALA ESTATE PADY, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, 673577.` - `3 KAVITHA, AGED 30 YEARS, D/O.PALRAJ.R, MARI NIVAS, NEDUMPALA ESTATE PADY, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, 673577.` - `4 SABITHA, D/O.PALRAJ.R, AGED 26 YEARS, NEDUMPALA PUTHEN KUDI MUKKIL HOUSE, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, 673577.` - `5 SATHEESH, S/O.PALRAJ.R, AGED 24 YEARS, NEDUMPALA PUTHEN KUDI MUKKIL HOUSE, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, 673577.` - `6 JOSEPH AUGUSTINE, AGED ABOUT 40 YEARS, S/O.AUGUSTINE, PUTHIYAKUNNEL HOUSE, THALIMALA, VYTHIRI POST & TALUK, WAYANAD DISTRICT, 673576.` ## `BY ADV.SMT.CELINE JOSEPH` ``` THISMACA HAVING COME UP FOR ADMISSION ON 27.01.2023, ALONG WITH ``` ``` CO.86/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -2- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 27[TH] DAY OF JANUARY 2023 / 7TH MAGHA, 1944 ``` ## `CO NO. 86 OF 2018` ``` (AGAINST THE AWARD DATED 25.09.2017 IN O.P.(MV) NO.100/2015 IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA) ``` ## `CROSS APPELLANTS/ RESPONDENTS 1 TO 5:` - `1 PALRAJ.R, AGED 57 YEARS, S/O.LATE RAMAYYA,MARI NIVAS, NEDUMPALA ESTATE PADY, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. (FATHER OF THE DECEASED SANIL.T)` - `2 MARIYAMMA, AGED 52 YEARS, W/O.PALRAJ.R, MARI NIVAS, NEDUMPALA ESTATE PADY, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. (MOTHER OF THE DECEASED SANIL. T)` - `3 KAVITHA, AGED 33 YEARS, D/O.PALRAJ.R, MARI NIVAS, NEDUMPALA ESTATE PADY, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. (SISTER OF THE DECEASED SANIL.T)` - `4 SABITHA, D/O.PALRAJ.R, AGED 29 YEARS, NEDUMPALA PUTHEN KUDI MUKKIL HOUSE, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. (SISTER OF THE DECEASED SANIL. T)` - `5 SATHEESH, S/O.PALRAJ.R, NEDUMPALA PUTHEN KUDI MUKKIL HOUSE, MEPPADI POST, THRIKKAIPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, (BROTHER OF THE DECEASED SANIL T).` ``` BY ADV SMT.CELINE JOSEPH ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -3- ``` ## `RESPONDENTS/RESPONDENT NO.6 & APPELLANT:` - `1 JOSEPH AUGUSTINE, AGED 43 YEARS, S/O.AUGUSTINE, PUTHIYAKUNNEL HOUSE, THALIMALA, VYTHIRI POST & TALUK, WAYANAD DISTRICT, 673576.` - `2 THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., KALPETTA BRANCH, RAWTHER BUILDING, MAIN ROAD, KALPETTA – 673121. BY ADV.SRI.M.A.GEORGE SMT.DEEPA GEORGE` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 27.01.2023, ALONG WITH MACA.507/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -4- ``` ## `JUDGMENT` ## `[MACA No.507/2018, CO No.86/2018]` ``` This Appeal has been preferred by the United ``` ``` India Insurance Company Ltd. (‘Insurance Company’, for short); while the Cross ``` ``` Objections,bytheclaimantsin OP(MV)No.100/2015, on the files of the Motor Accidents Claims Tribunal, Wayanad, Kalpetta (‘Tribunal’, for short). ``` ``` 2.The son of Cross Objectors 1 and 2, who ``` ``` was also the brother of Cross Objectors 3 to 5, ``` ``` met with an accident and succumbed to the injuries, which prompted them to file the afore ``` ``` Original Petition. They claimed a compensation ``` ``` of Rs.26,08,000/-, limited to Rs.20,00,000/-; but was awarded Rs.18,68,000/-. ``` ``` 3.The Insurance Company assails the Award; ``` ``` while the Cross Objectors assert that they are ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -5- ``` ``` entitled to more than what has been awarded by the Tribunal. ``` ``` 4.The point in controversy in this case between the parties is primarily with respect to the income notionally fixed by the Tribunal in favour of the deceased; while, the Insurance Company also claims that the amounts awarded by the Tribunal under the heads “Funeral Expenses” and “Loss of Love and Affection” are in excess. ``` ``` 5.The cross objectors, on the other hand, contend that, had the income of the deceased ``` ``` been properly quantified, the compensation under the heads “Loss of Dependency and “Loss of Future Economic Benefit” could be much higher; while that awarded under the head “Loss of Estate” is lower than what has been declared by the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]. ``` ``` 6.I have examined the evidence on record – ``` ## `MACA No.507/2018 & CO No.86/2018` ``` -6- ``` ``` which have been handed over across the Bar by both sides, agreeing that this matter can be disposed of on the strength of the same; as also the pleadings on record. ``` ``` 7.The appellant Insurance Company impugns the fixation of notional income of the deceased by the Tribunal as being Rs.8,000/-, on the ground that Ext.A7 - Salary Certificate shows that it was only Rs.6,500/- at the relevant time. They further say that not more than Rs.15,000/- could have been given as funeral expenses; while only Rs.40,000/- each could have been given to the parents of the victim towards ``` ``` “Loss of Love and Affection”, thus being a total of Rs.80,000/-, instead of Rs.1,00,000/- as has been presently done. They further argue that, ``` ``` going by Pranay Sethi (supra), “Loss of Estate” could not have been more than Rs.15,000/-. ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -7- ``` ``` 8.Smt.Deepa George, learned Standing ``` ``` Counsel for the Insurance Company, then added that, in any event, the computation of “Loss of Dependency” by the Tribunal was in error because ``` ``` it has taken 50% as future prospects; while in Pranay Sethi (supra), it has been confined to ``` ``` 40% and no more. ``` ``` 9.As an adscititious argument, Smt.Deepa ``` ``` George then maintained that “Loss of Dependency” ``` ``` could have been computed by the Tribunal only reckoning the mother of the victim and not his ``` ``` father, because he has an elder son also. She thus prayed that Award of the Tribunal be set ``` ``` aside to the impugned extent. ``` ``` 10.The afore arguments of the appellant ``` ``` were answered by Smt.Celine Joseph, appearing for the Cross Objectors, asserting that, going byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -8- ``` ``` 236], the Hon’ble Supreme Court has rendered it clear that, in the case of a victim involved in an accident in the year 2014, his/her salary has to be reckoned as Rs.9,500/-, even in cases where it is not properly ascertainable. She then argued that, as per Ext.A7, Rs.6,500/- is not the full income of the victim, but only his basic salary and that it also records that he was entitled to incentives, which is much more than what has been reckoned by the Tribunal. ``` ``` 11.As regards the dependency of the father of the deceased is concerned, Smt.Celine Joseph submitted that it has been established, through undisputed evidence, that he is suffering from 90% disability and was fully dependent on the victim; and asserted that the Insurance Company cannot say otherwise, because they led no evidence to show that his other son had any income or was capable of taking care of him. She ``` ``` MACA No.507/2018 & CO No.86/2018 ``` **==> picture [22 x 9] intentionally omitted <==** ``` submitted that, even going by the worst case scenario projected by the Insurance Company, one half of the dependency of the father would have to be admitted; and therefore, that the Tribunal ``` ``` did not err in any manner whatsoever in that regard. She thus prayed that the amounts granted under the head “Loss of Dependency”, “Loss of Future Economic Benefit” be enhanced, reckoning the salary of the claimant to be Rs.9,500/- in the year 2014 and with the relevant percentage towards future prospects. ``` ``` 12.The rival positions of the parties being ``` ``` so recorded, there are some aspects among the contentions, which require not much of an ``` ``` assessment by this Court, because it is covered by Pranay Sethi (supra). ``` ``` 13.As far as the head “Funeral Expenses” is ``` ``` concerned, the Hon’ble Supreme Court has limited it to Rs.15,000/-; while, under the head “Loss ``` ## `MACA No.507/2018 & CO No.86/2018` ``` -10- ``` ``` of Estate”, it is confined to Rs.15,000/-. Similarly, the compensation towards “Loss of Love and Affection” is limited to Rs.40,000/- per head and hence in this case, it will have to be confined to Rs.80,000/-. ``` ``` 14.What remains is the assessment of the “Loss of Dependency” and “Loss of Future Economic Benefit”. In this regard, as I have seen above, the parties are in variance as to the income to be adopted in favour of the victim, as also his future prospects. On the question of future prospects, there can be no dispute becausePranay Sethi(supra) again declares the law that it must be confined only to 40%, thus leaving this Court to decide only whether the income of the victim ought to have ``` ``` been taken as Rs.9,500/-, or lesser. ``` ``` 15.In this regard, the Tribunal appears to ``` ``` have relied upon Ext.A7 - Salary Certificate, ``` ## `MACA No.507/2018 & CO No.86/2018` ``` -11- ``` ``` wherein, it is recorded that the victim was drawing Rs.6,500/- per annum, along with ``` ``` incentives. The amounts eligible as incentives had not been properly established, but a rough estimation of the same, according to the Cross Objectors, would be much more than four or five thousand rupees per month. When the factors ``` ``` which guide such aspects are not clear, I am of ``` ``` the firm view that this Court will be fully ``` ``` justified in followingRamachandrappa(supra), ``` ``` which postulates unequivocally that, even in the ``` ``` case of a “Coolie”, with an unascertainable ``` ``` income, the standard to be adopted would be ``` ``` Rs.9,500/- in the year 2014. I see no reason why the claimant should not be given the said ``` ``` benefit, particularly when he was working as a Manager of the Company. ``` **==> picture [377 x 13] intentionally omitted <==** ``` intervened to argue that no amount could have ``` ## `MACA No.507/2018 & CO No.86/2018` **==> picture [30 x 9] intentionally omitted <==** ``` been given for pain and suffering to the claimant, since his death was instantaneous. I ``` ``` am afraid that this Court can find no favour ``` ``` with this contention because it is on record, ``` ``` and as is undisputed, that the claimant died one day later and hence the amount of Rs.5,000/- is certainly reasonable. ``` ``` In the afore circumstances, I order this ``` ``` appeal and cross objections in the following manner: ``` - `(a) The compensation under the head “Funeral` ``` Expenses” is reduced to Rs.15,000/- (Rupees fifteen thousand only), instead of Rs.25,000/- awarded by the Tribunal. ``` - `(b) The compensation under the head “Loss of` ``` Love and Affection” is reduced to Rs.80,000/- (Rupees eighty thousand only), instead of Rs.1,00,000/-. ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -13- ``` ``` (c)The compensation under the head “Loss of Estate” is enhanced as Rs.15,000/- (Rupees fifteen thousand only), from Rs.10,000/-. ``` ``` (d)The amounts under the heads “Loss of ``` ``` Dependency” and “Loss of Future Economic Benefit” are enhanced as Rs.19,15,200/- (Rupees nineteen lakhs fifteen thousand and two hundred only), reckoning the income of the claimant to ``` ``` be Rs.9500/-, added with 40% future prospects. ``` ``` Resultantly, this appeal and Cross Objection ``` ``` are disposed of, granting an additional amount ``` ``` ofRs.1,62,200/- (Rupees one lakh sixty two ``` ``` thousand and two hundred only), along with interest as awarded by the Tribunal, from the date of Original Petition till the date of ``` ``` realization, to the Cross Objectors; which ``` ``` shall be deposited by the appellant Insurance Company before the Tribunal within a period of three months from the date of receipt of a copy ``` ``` MACA No.507/2018 & CO No.86/2018 ``` ``` -14- ``` ``` of this judgment, failing which, it shall carry interest at the rate determined by the Tribunal. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` akv ``` ``` JUDGE ```