MACA Nos. 1881 & 2138 of 2014, National Insurance Co. Ltd. v. Nitya S. Nair and others (Pathanamthitta, Kerala High Court)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944 ``` ``` MACA NO. 2138 OF 2014 AGAINST THE AWARD DATED 12.03.2014 IN O.P(MV) NO.1524/2006 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA ``` ## **`APPELLANTS/PETITIONERS 1 TO 4 :-`** - **`1 NITYA S. NAIR, W/O LATE JYOTHI RAJ ELENJATTU HOUSE, KANGAZHA P.O, KANGAZHA VILLAGE, CHANGANACHERRY TALUK.`** - **`2 KASYAP, S/O LATE JYOTHI RAJ,(MINOR), ELENJATTU HOUSE, KANGAZHA P.O, KANGAZHA VILLAGE, CHANGANACHERRY TALUK.REPRESENTED BY HIS GUARDIAN AND NEXT FRIEND NITYA.S.NAIR,W/O LATE JYOTHI RAJ, ELENJATTU HOUSE, KANGAZHA P.O, KANGAZHA VILLAGE, CHANGANACHERRY TALUK.`** - **`3 CHELLAPPAN NAIR, ELENJATTU HOUSE, KANGAZHA P.O, KANGAZHA VILLAGE,CHANGANACHERRY TALUK.`** - **`4 LEKSHMY KUTTYAMMA.A.C ELENJATTU HOUSE, KANGAZHA P.O, KANGAZHA VILLAGE,CHANGANACHERRY TALUK.`** ``` BY ADVS. T.K.KOSHY SABU I.KOSHY ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3 :-`** - **`1 RAJEEV, S/O RADHA MANNILNIKATHU HOUSE, PATTANAKKADU, CHERTHALA,PIN-688524`** - **`2 MADHU.G, M/S PADMA CARGOS, PARLAR BUILDING, CATTLE FIELD PLANT, PATTANAKKAD.P.O, CHERTHALA. PIN-688524`** - **`3 DIVISIONAL MANAGER`** ``` 2 ``` ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, KESAVA TOWERS, GANDHARI AMMENCOIL STREET, PULIMOODU, THIRUVANANTHAPURAM PIN-695001. ``` ``` BY ADVS. SRI.P.ANIYAN SRI.A.R.GEORGE SRI.V.RENJU SRI.VAKKOM N.VIJAYAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2022, ALONG WITH MACA.1881/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND ``` ## **`AGRAHAYANA, 1944`** ``` MACA NO. 1881 OF 2014 ``` ``` AGAINST THE AWARD DATED 12.03.2014 IN O.P (MV) NO.1524/2006 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`PATHANAMTHITTA`** ## **`APPELLANT/3RD RESPONDENT IN THE O.P :-`** ``` NATIONAL INSURANCE CO.LTD ``` ``` THIRUVANANTHAPURAM REPRESENTED BY THE MANAGER, NATIONAL INSURANCE CO. KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, PADMA JUNCTION, MG ROAD, KOCHI-35. ``` ``` BY ADV SRI.A.R.GEORGE ``` ## **`RESPONDENTS/CLAIMANTS IN THE O.P :-`** - **`1 NITYA.S.NAIR ELENJATTU HOUSE, KANGAZHA.P.O., MANGAZHA VILLAGE, CHANGANACHERRY TALUK. PIN-686541.`** - **`2 KASYAP JYOTHIRAJMINOR`** - **`-DO-DO-`** - **`3 CHELLAPPAN DO-DO-`** - **`4 LEKSHMYKUTTYAMMA AC DO-DO-(MINOR 2ND RESPONDENT REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN-HE 1ST RESPONDENT)`** ``` 4 ``` ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` BY ADVS. SRI.ABE RAJAN SRI.T.K.KOSHY SRI.SABU I.KOSHY SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2022, ALONG WITH MACA.2138/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` 5 ``` ## **JUDGMENT** ## **Dated this the 13[rd ] day of December, 2022** Both these appeals are originated from an award passed by Motor Accidents Claims Tribunal, Pathanamthitta (for short ‘the Tribunal’) on 12.03.2014 in O.P (M.V) No.1524/2006. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 2. The appellants in M.A.C.A.No.2138 of 2014 are the petitioners before the Tribunal and the appellant in M.A.C.A.No.1881 of 2014 is the third respondent in the Original Petition. The appellants in M.A.C.A No.2138 of 2014 seeks for enhancement of the compensation and the appellants in M.A.C.A No.1881 of 2014 seeks for reduction of the compensation stood awarded by the Tribunal in O.P(M.V) No.1524/2006. 3. The main contention of Shri.T.K.Koshy, the learned counsel for the appellants in M.A.C.A.No.2138 of 2014 was that ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` 6 ``` `6,000/- fixed by the Tribunal as the monthly income notionally is disproportionate to the cost of living and the price index prevailing in 2006, when the motor accident was occurred. According to him, as per the claim raised by the petitioners in the Original Petition, the victim of the motor accident was aged 33 years, working as LIC agent and was earning `25,000/- monthly. According to him, consideration of the occupation and the monthly income can be based on Exts.A7 and A8. 4. Ext.A8 is nothing but Agency Commission Statement issued from the Branch Office of LIC at Mundakayam and Ext.A7 is the copy of income tax return. According to the learned counsel, the evidence adduced as above were overlooked by the Tribunal while fixing the monthly income as `6,000/-. He canvassed for a fresh consideration of Exts.A7 and A8 and re-fixation of the monthly income, on it’s basis. 5. The learned counsel contended furthermore that compensation was awarded by the Tribunal under various conventional heads in total disregard of the direction of the Apex ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` 7 ``` Court in _**National Insurance Company Limited v. Pranay Sethi and others**_ [2017 (4) KLT 662 (SC)] and sought for re-fixation of the compensation under the heads, on its basis. 6. The argument advanced by the learned counsel is found to have basis. `25,000/- and `10,000/- were awarded by the Tribunal under the respective heads and that is against the direction of the Apex Court in **Pranay Sethi** (supra). `1,00,000/- and `1,50,000/were also awarded by the Tribunal as compensation respectively towards loss of consortium in favour of the wife of the deceased and loss of love and affection. 7. Petitioners being the parents, wife and the minor child of the deceased, each of them are entitled to get `44,000/- as compensation towards loss of consortium. Thus, `1,76,000/(`44,000/- x 4) is payable in total under that head. The Tribunal has awarded a sum of `8,500/- in excess and `6,500/- less than the sum, for which petitioners are entitled to. Therefore, `8,500/- is deducted from the total additional compensation payable and `6,500/- added thereto. ``` 8 ``` ## **`M.A.C.A.Nos 1881 & 2138 of 2014`** 8. Petitioners being the legal representatives of the deceased, are not entitled to get any sum as compensation towards pain and suffering and loss of love and affection. Therefore, `2,50,000/- (`1,50,000/- + `1,00,000/-) stood awarded by the Tribunal as compensation under the respective heads are also deducted from the total additional sum arrived at as payable. 9. Exts.A7 and A8 are produced by the petitioners with a view to establish the job of the deceased as LIC agent and the monthly income earned therefrom. Ext.A8 provides for the Commission earned by the deceased for the period from 19981999 upto 2004-2005. There is every justification in considering the average of the commission received by the deceased from 2001-2002 till 2004 -2005 for fixing the monthly income of the deceased. `75,551/- is arrived at as the average of the annual commission received by the deceased during the relevant period and therefore, monthly income would come to `6,295/- and is taken into consideration for calculation of compensation. Having due regard to the untimely death of the victim in the motor ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` 9 ``` accident, 40% is also added to the monthly income fixed as above and thus `8,820/- (`6,300/- + `2,520/-) is arrived at. 1/4[th] is found deducted by the Tribunal in consideration of the expenses, the deceased would incur towards his personal needs, had he been alive after the motor accident. 10. When calculation is done afresh with the factors modified now as well as those maintained, `12,70,080/- (`8,820/x ¾ x 12 x 16) is arrived at as the compensation payable towards loss of dependency, which is `25,920/- less than that stood awarded by the Tribunal. 11. In the above manner of calculation afresh, the petitioners before the Tribunal, who are appellants in M.A.C.A No.2138 of 2014 will get `15,54,206/- (Rupees Fifteen lakhs fifty four thousand two hundred and six only) [(`16,66,126/- + `6,500/- ) - (`25,920/- + `10,000/- + `8,500/- + `74,000/-)] as additional compensation together with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. `1,00,000/- is submitted by the learned counsel for the ## **`M.A.C.A.Nos 1881 & 2138 of 2014`** ## **`10`** 3[rd] respondent (Appellant in MACA No.1881/2014) as already deposited. Therefore, the 3[rd] respondent shall pay the remaining sum with interest accrued on it, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. Both appeals are allowed in part accordingly. Sd/- **MARY JOSEPH** **JUDGE** SMA ## **MACA 2138/2014** The following corrections are carried out in the judgment dated 13.12.2022 in MACA 2138/2014 as per order dated 09.02.2024 in RP 1212/2023: A) In paragraph 6 of the judgment, in the third line, in the place of 'under the respective heads', the words 'as compensation towards funeral expenses and loss of estate' shall be substituted. ``` M.A.C.A.Nos 1881 & 2138 of 2014 ``` ``` 11 ``` B) In paragraph 7 of the judgment, in the 3rd sentence, towards the last, the words 'for which the petitioners are entitled to get’ shall be substituted by 'which the petitioners are entitled to get towards funeral expenses and loss of estate.’ In the same paragraph, in the last sentence, the words ‘total additional compensation' shall be substituted by 'total compensation.' C) In the 2[nd] sentence of paragraph 8, the figures ‘`2,50,000/-,’ ‘`1,50,000/-’ and ‘`1,00,000/-' shall be substituted by '₹1,60,000/-', `10,000/-' and '₹1,50,000/-' respectively. In the last line of the same paragraph, the words 'total additional sum' shall be substituted by 'total compensation'. D) In paragraph 10, towards last, after the words, 'which is ₹25,920/- less than that stood awarded by the Tribunal', 'and therefore, '₹25,920/- liable to be deducted from the total compensation payable' shall be added. E) In the 1[st] sentence of paragraph 11 of the judgment, the figures '(`16,66,126/- + `6,500/-)' - '(`25,920/- + `10,000/- + `8,500/- + `74,000/-)' shall be substituted by '(`16,66,126/- + `6,500/- + ₹76,000/-) - (`25,920/- + `10,000/- + `8,500/- - ₹1,50,000/-)'. The words 'additional compensation' shall be substituted by 'the total ``` 12 ``` ## **`M.A.C.A.Nos 1881 & 2138 of 2014`** compensation payable'. Likewise the figure depicting the rate of interest as '7.5%' in paragraph 11 shall be substituted by '9%' and the words, 'together with interest at the rate of 7.5%' shall be substituted by 'together with interest at the rate of 9% and proportionate costs'. Instead of the figure '₹1,00,000/-', occurring in the same paragraph, '₹10,00,000/-' shall be substituted. Sd/- JOINT REGISTRAR