MACA Nos 2596 of 2015 and 562 of 2016, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA,** **1944** ## **MACA NO. 562 OF 2016** **AGAINST THE AWARD DATED 10.03.2015 IN OPMV 1760/2007 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANTS/PETITIONERS:** - **1 VIKRAMAN NAIR S/O.VELAYUDHAN PILLAI, NEDUMPALLY VEEDU,VELLANADU, VELLANADU P.O., THIRUVANANTHAPURAM.** - **2 SATHIDEVI W/O.VIKRAMAN NAIR, RESIDING AT NEDUMPALLY VEEDU,VELLANADU, VELLANADU P.O., THIRUVANANTHAPURAM.** - **3 ARUN S/O.VIKRAMAN NAIR, RESIDING AT NEDUMPALLY VEEDU,VELLANADU, VELLANADU P.O., THIRUVANANTHAPURAM(MENTALLY RETARDED), REPRESENTED BY NEXT FRIENDVIKRAMAN NAIR (FATHER).** **BY ADV SRI.BIJU BALAKRISHNAN** ## **RESPONDENTS/RESPONDENTS:** - **1 DHRAVIDAMANI S/O.D.ANNAMALAI, A.NO.1-121 DOOR NO.132,AERIPETTAI STREET, VENGUNAM POST, (VENKUNDRAM)VANTHAVASI, THIRUVANNAMALAI DISTRICT.TAMIL NADU - 682 026** - **2 ICICI LOMBARD GENERAL INSURANCE CO.LTD. KANNANKERRI ESTATE, 3RD FLOOR, MARINE DRIVE,SHANMUGHAM ROAD, COCHIN - 682 031.** - **3 PUNITH P.C. S/O.CHANDRAMOHAN, PULIPARAMBIL HOUSE, THALIKULAM P.OTHRISSUR DISTRICT - 680 569. [DELETED] RESPONDENT NO.3 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 7.3.23 IN IA** **MACA Nos 2596 of 2015 and 562 of 2016** **2** **1/2023** **4 UNITED INDIA INSURANCE COMPANY LTD DIVISIONAL OFFICE, MALANKARA BUILDINGS,PALAYAM P.O., THIRUVANANTHAPURAM 695 002.** **5 N.PARANTHANMAN S/O.NAGAPPAN, THENNAMKOOR GRAMAM,NEAR PILLAYAR KOVIL, PILLAYAR KOVIL STREET,THIRUVANNAMALAI P.O., TAMILNADU - 606 601.** **BY ADVS. Jayasree S SRI.R.AJITH KUMAR 12884** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2023, ALONG WITH MACA.2596/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos 2596 of 2015 and 562 of 2016** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA,** **1944** ## **MACA NO. 2596 OF 2015** **AGAINST THE AWARD DATED 10.03.2015 IN OPMV 1760/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT/2ND RESPONDENT:** **THE BRANCH MANAGER, ICICI LOMBARD GENERAL MANAGER CO.LTD, COCHIN, THROUGH THE LEGAL MANAGER, ICICI LOMBARD GENERAL INSURANCE CO., KANNANKERY ESTATE, 3RD FLOOR, SHANMUGHAM ROAD, MARINE DRIVE, KOCHIN 682031** **BY ADV SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1,3 TO 5:** - **1 VIKRAMAN NAIR S/O.VELAYUDHAN PILLAI, NEDUMPALLY VEEDU, VELLANADU, VELLANADU PO, THIRUVANANTHAPURAM DISTRICT** - **2 SATHIDEVI** - **W/O.VIKRAMAN NAIR, NEDUMPALLY VEEDU, VELLANADU, VELLANADU PO, THIRUVANANTHAPURAM DISTRICT** - **3 ARUN S/O.VIKRAMAN NAIR, NEDUMPALLY VEEDU, VELLANADU, VELLANADU PO, THIRUVANANTHAPURAM DISTRICT (MENTALLY RETARDED), REPRESENTED BY HIS NEXT FRIEND, FATHER, VIKRAMAN NAIR DO. DO. DO.** - **4 DHARAVIDAMANI S/O.D.ANNAMALAI, A.NO.1-121, DOOR NO.132, AERIPETTAI STREET, VENGUNAM POST (VENKUNDRAM), VANTHAVASI, THIRUVANNAMALAI DISTRICT, TAMIL NADU STATE (DELETED)** - **5 PUNITH PC S/O.CHANDRAMOHAN, PULIPARMBIL HOUSE, THALIKULAM** **MACA Nos 2596 of 2015 and 562 of 2016** **4** **PO, THRISSUR DISTRICT (DELETED)** - **6 UNITED INDIA INSURANCE COMPANY LTD. DIVISIONAL OFFICE, MALANKARA BUILDINGS, PALAYAM PO, THIRUVANANTHAPURAM(DELETED)** **7 N.PARANTHAMAN S/O.NAGAPPAN, THENNAMKOOR GRAMAM, NEAR PILLAYAR KOVIL, PILLAYAR KOVIL STREET, THIRUVANANAMALAI DISTRICT, TAMIL NADU STATE (DELETED)** **R4 TO R7 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 11.09.2015 IN I.A. NO. 3190/2015.** **BY ADVS. SRI.BIJU BALAKRISHNAN SRI.RAJESH THOMAS SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2023, ALONG WITH MACA.562/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos 2596 of 2015 and 562 of 2016** **5** ## **JUDGMENT** The afore appeals arise from the Award of the Motor Accidents Claims Tribunal, Thiruvananthapuram, in OP(MV) No.1760/2007. 2. On 29.11.2007, Late Anoop, who was a student of Master of Business Administration (MBA), of 23 years of age, was involved in a road accident, when the motor cycle he was riding was run into by the offending Mini Bus, driven in a rash and negligent manner. The deceased was thrown onto the road and sustained very serious injuries; and unfortunately succumbed to them a few minutes later. 3. The legal heirs of Late Anoop filed OP(MV) No.1760/2007 before the learned Tribunal, seeking compensation limited to Rs.20 lakhs, and which has been allowed to a sum of Rs.27,61,000/- . They still impugn it as being inadequate, by filing MACA No. 562/2016. 4. While so, the Insurance Company, which insured the offending vehicle, has filed MACA No. 2596/2015, asserting that the compensation awarded by the learned Tribunal is excessive. **MACA Nos 2596 of 2015 and 562 of 2016** **6** 5. I have heard Sri.Biju Balakrishnan, learned counsel for the appellants in MACA No.562/2016 and Sri.Najeeb Khan, appearing for the 4[th] respondent Insurance Company in MACA No.562/2016; Sri.Latheesh Sebastian appearing for the appellant in MACA No.2596/2015 (which is also the 2[nd] respondent in MACA No.562/2016) and Smt.S.Jayasree appearing for the 4[th] respondent in MACA No.2596/2015. 6. At the outset, I must record that it is common case for all parties that the liability of insurance has been cast only upon “ICICI Lombard Insurance Company Ltd.” – the appellant in MACA No.2596/2015, and not on United India Insurance Company. 7. The claimants/appellants in MACA No.562/2016 impugn the Award of the Tribunal on the ground that the compensation for Dependency is inadequate because, the notional income of the deceased was reckoned incorrectly and also because his personal expenses was deducted to a sum equal to one-half. They assert that the third among them is his brother, who is a differently abled person and who would have been fully dependent upon him in future. They then assert that the deceased would have earned much more than Rs.15,000/-, as has been reckoned by the Tribunal and that **MACA Nos 2596 of 2015 and 562 of 2016** **7** only one-third could have been deducted towards Personal Expenses because, even during his life time, 3[rd] respondent was depended upon him emotionally. They thus, prayed that the compensation awarded by the Tribunal be enhanced. 8. Sri.Latheesh Sebastian – learned Standing Counsel for the appellant in MACA No.2596/2015, however, argued that the notional income adopted in favour of the deceased by the Tribunal was incorrect and that large sums have been awarded under the heads 'Funeral Expenses' and compensation for 'Loss of Estate', than what is legally permissible. He concluded saying that no amount towards compensation for 'Loss of Love and Affection' could have been granted, going by the judgment of the Honourable Supreme Court in **United India Insurance Co.Ltd v. Satinder Kaur @ Satwinder Kaur [2020(3) KHC 760];** however conceding, to a pointed question from this Court, that compensation for 'Consortium' ought to have been granted, but that not more than Rs.1,20,000/- would be permissible thereunder. 9 **.** I have considered the afore submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel **MACA Nos 2596 of 2015 and 562 of 2016** **8** for the parties, with the express consent that it can be acted upon by this Court without dispute. 10. I will first deal with the correctness or otherwise of the notional income arrived at by the Tribunal in favour of the deceased. 11. It is without doubt that the deceased was a bright young man, pursuing his second year MBA in 'Sri Narayana Guru Institute of Science and Technology'. No doubt, he would have had a bright future in life; but, for the purpose of estimation of his notional income, certain postulated standards will have to be followed. Since the deceased was not earning at the time of the accident, I have no doubt that the Tribunal was without error in having reckoned his notional income to be Rs.15,000/- per month, which is the acceptable figure for a student in the year 2007 – when the accident occurred. 12. That said, the question is whether one-half of the notional income could be deducted towards personal expenses, because the deceased was a bachelor. Though, normally, the deduction of one-half would become necessary because the deceased was not married, it is argued that this case presents a different scenario because the 3[rd] respondent, **MACA Nos 2596 of 2015 and 562 of 2016** **9** who is his brother, is admitted to be a differently abled person, with severe cogitative difficulties. It is certainly true that he would become fully depended upon the deceased in the years to come, when he would have started earning; and the emotional bond between the two can also be never understated. However, even if this is fully accepted, it would still mean that there is only one dependent, since the parents of the deceased cannot be seen to be such, when he was a student. Obviously, therefore, even as per such reasoning, the deduction could have to be one-half, as per the binding precedents, which cover the field. 13. However, the afore being so declared, the 'Future Prospects' added to the notional income of the deceased, at the rate of 50%, is impermissible, going by **National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 6621].** Only 40% could have been added; and I have no doubt that the Award requires to be modified accordingly. 14. Coming to the compensation awarded by the Tribunal under the heads 'Funeral Expenses' and 'Loss of Estate', no doubt, **Pranay Sethi** (supra) makes it incumbent to grant not more than Rs.15,000/-each under these heads, for an accident - which happened in the year 2007. Obviously, **MACA Nos 2596 of 2015 and 562 of 2016** ## **10** therefore, the sums granted by the Tribunal require to be revised. 15. Finally, even though the learned Tribunal had granted compensation under the head 'Loss of Love and Affection' to a sum of Rs.2,00,000/-, it ought to have done so under the head 'Loss of Consortium' and confined it to Rs.1,20,000/- in favour of three appellants. Resultantly, these appeals are partly allowed in the following manner: a. The compensation under the head 'Loss of Dependency' is fixed at Rs.22,68,000/-, reckoning the notional income of the deceased to be Rs.15,000/- per month, with 40% 'Future Prospects' added and one-half deducted towards his Personal Expenses. b. The compensation for 'Loss of Love and Affection' is deleted; and in its place, an amount of Rs.1,20,000/- is awarded under the head 'Loss of Consortium', at the rate of Rs.40,000/- per head, in favour of each of the appellants. c. The compensation under the head 'Funeral Expenses is reduced to Rs.15,000/-, from Rs.25,000/- now awarded by the Tribunal. **MACA Nos 2596 of 2015 and 562 of 2016** ## **11** d. The compensation under the head 'Loss of Estate' is reduced to Rs.15,000/-, from Rs.1,00,000/- now awarded by the Tribunal. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellants will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 9% as awarded by the Tribunal, from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal before it. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-DEVAN RAMACHANDRAN, JUDGE** lsn