MACA Nos. 2797/2017 & 3239/2017 (Motor Accident Claims Appeals), High Court of Kerala, Ernakulam

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 ``` ## `MACA NO. 2797 OF 2017` ``` [AGAINST THE AWARD DATED 22.10.2016 IN OP(MV)NO.933/2016 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA] ``` ## `APPELLANTS/PETITIONERS:` - `1 SOUMYA K.M, AGED 27 YEARS, D/O.MATHEW.K.A, W/O.LATE VINEESH GEORGE, KOCHUPARAMBIL HOUSE, NOW RESIDING AT VETTIKKATHADATHIL HOUSE, KOOVERI AMSOM,P.O.PADAPPENGAD, TALIPARAMBA TALUK, KANNUR DISTRICT-670 581.` - `2 KEVIN, S/O.LATE VINEESH GEORGE, MINOR AGED 4 YEARS, REP.THROUGH THE GUARDIAN MOTHER SOUMYA.K.M, W/O.LATE VINEESH GEORGE, KOOVERI AMSOM, P.O.PADAPPENGAD, TALIPARAMBA TALUK, KANNUR DISTRICT-670 581.` - `3 GEORGE @JOY, S/O.THOMAS, AGED 62 YEARS, VETTIKKATHADATHIL HOUSE, KOOVERI AMSOM, P.O.PADAPPENGAD, TALIPARAMBA TALUK, KANNUR DISTRICT-670 581.` - `4 VALSAMMA, W/O.GEORGE @ JOY, AGED 57 YEARS, VETTIKKATHADATHIL HOUSE, KOOVERI AMSOM, P.O.PADAPPENGAD, TALIPARAMBA TALUK, KANNUR DISTRICT-670581.` ``` BY ADV SMT.M.R.JAYALATHA ``` ## `RESPONDENT/5TH RESPONDENT:` ``` 1ORIENTAL INSURANCE COMPANY LTD MARINA SHOPPING CENTER, NATIONAL HIGHWAY TALIPARAMBA 670141, KANNUR DISTRICT (INSURER OF KL-59-G-9769 CAR POLICY NO.441604/31/2016/3806). ``` ``` MACA Nos.2797 & 3239/2017 ``` **==> picture [22 x 9] intentionally omitted <==** ``` BY ADVS. SRI.P.JACOB MATHEW, SC SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH MACA.3239/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -3- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, ``` ``` 1945 ``` ## `MACA NO. 3239 OF 2017` ``` [AGAINST THE AWARD DATED 22.10.2016 IN OP(MV)NO.933/2016 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA] ``` ## `APPELLANT/5TH RESPONDENT:` ``` THE ORIENTAL INSURANCE COMPANY LIMITED, TALIPARAMBA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. ``` ``` BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## `RESPONDENT/4TH RESPONDENT:` ``` JABBAR, S/O. MOIDEEN, OLIYANTAKATH HOUSE, MAVICHEERRY, KUTTIYERI P.O., TALIPARAMBA, PIN-670 141. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH MACA.2797/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -4- ``` ## `JUDGMENT` ## `[MACA Nos.2797/2017, 3239/2017]` ``` I am considering these two Appeals together because MACA No.2797/2017 has been filed by the claimants in OP(MV)No.933/2016 on the files of ``` ``` theMotorAccidentsClaimsTribunal, Thaliparamba (‘Tribunal’, for short), seeking enhancement of the compensation awarded to them for the unfortunate death of Vineesh George in a road accident on 02.01.2016; while, MACA No.3239/2017 has been filed by the Insurance Company - which insured the offending vehicle - ``` ``` on the assertion that they ought to have been granted liberty of recovering the compensation - ``` ``` computed by the Tribunal in favour of the ``` ``` claimants - from the owner of the offending vehicle, since its driver did not have a valid licence at the time of the accident. ``` ``` 2.Compendiously, late Vineesh George was ``` ``` MACA Nos.2797 & 3239/2017 ``` **==> picture [22 x 8] intentionally omitted <==** ``` travelling in a car on 02.01.2016, when the offending autorickshaw, driven in a rash and negligent manner, hit it, causing him to sustain very grievous injuries. He unfortunately succumbed to the same, while undergoing treatment; whereupon, the claimants filed the afore Original Petition, seeking compensation of ``` ``` an amount of Rs.40 lakhs, asserting that the deceased was a carpenter, earning Rs.15,000/- per month. ``` ``` 3.The learned Tribunal, however, allowed ``` ``` the claim only to a sum of Rs.16,43,600/-, holding the Insurance Company of the offending vehicle liable to honour the same; and this has ``` ``` now been impugned by both sides in the manner as ``` ``` mentioned above. ``` ``` 4.Smt.M.R.Jayalatha – learned counsel for the appellants in MACA No.2797/2017 – the ``` ``` claimants, argued that the compensation awarded ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -6- ``` ``` in favour of her clients is exiguous because, the notional income adopted in favour of the deceased is incorrect and much below what is permissible. She argued that there is evidence on record to establish that the deceased was a carpenter, and hence that his income claimed by the appellants ought to have been reckoned. She then contended that the compensation under the head “Loss of Consortium” is also inadequate since each of the appellants is entitled to Rs.40,000/- under the said head, which has been denied and confined to a mere Rs.1,00,000/-. She ``` ``` thus prayed that this Appeal be allowed. ``` ``` 5.In response, Sri.P.Jacob Mathew – ``` ``` learned counsel for the appellant in MACA ``` ``` No.3239/2017 – Insurance Company, argued that the computations adopted by the Tribunal in arriving at the compensation are without error; and that, in fact, it has been more generous ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -7- ``` ``` than required, awarding Rs.25,000/- each under the heads “Funeral Expenses” and “Loss of ``` ``` Estate”, since, inNational Insurance Company Ltd. v. Pranay Sethi[2017 (4) KLT 662)], the Hon’ble Supreme Court authorizes only a sum of Rs.15,000/- each under the said heads. He then argued that, when it is on evidence that the driver of the offending vehicle did not have a valid licence at the time of the accident - it ``` ``` having expired by then – the learned Tribunal ``` ``` ought to have granted his client the liberty of ``` ``` recovering the compensation from the owner of the offending vehicle. ``` ``` 6. Sri.P.Jacob Mathew concluded asserting ``` ``` that no amount under the heads “Pain and ``` ``` Suffering” and “Loss of Love and Affection” could have been offered in terms of the judgment of the Hon’ble Supreme Court inUnited India Insurance Company Ltd. v. Satinder Kaur @ ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -8- ``` ``` Satwinder Kaur[(2021) 11 SCC 780]; and thus ``` ``` prayed that MACA No.3239/2017 be allowed. ``` ``` 7.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence on record, which I have analyzed very carefully. ``` ``` 8.I will first deal with the contentions of Smt.M.R.Jayalatha, on behalf of the ``` ``` claimants. ``` ``` 9.I find in favour of the appellants on ``` ``` the question of the notional income of the ``` ``` deceased because, even when the Tribunal is ``` ``` right in saying that there is no evidence on record either to prove that he was a carpenter, ``` ``` or that he was earning Rs.15,000/- per month, it ``` ``` ought to have then fixed the notional income only on the basis of the judgment of the Hon’ble Supreme Court inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], which mandates that, in the ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -9- ``` ``` case of a person who was a ‘Coolie’, or a person with an unascertainable income, in the year 2016 ``` ``` – when the accident occurred – the minimum ``` ``` figure to be reckoned is Rs.10,500/-. ``` ``` 10.Even though Ext.A4 - Pass Book was ``` ``` produced by the claimants to show that the deceased was a member of the “Kerala Building ``` ``` and Other Construction Workers Welfare Fund Board”, his income is not discernible therefrom; but it can be safely deduced therefrom that the ``` ``` deceased was a carpenter. In Rajani v. Oriental ``` ``` Insurance Company Limited [2022 (5) KLT OnLine ``` ``` 1012 (SC)], the Hon’ble Supreme Court has ``` ``` stipulated that, in the case of a person who is ``` ``` engaged in technical avocation – which a carpenter certainly is – a more robust view has to be taken. ``` ``` 11.I, therefore, propose to adopt the ``` ``` notional income of the deceased to be ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -10- ``` ``` Rs.11,000/-, which is a mere Rs.500/- more than what has been authorized byRamachandrappa ``` ``` (supra) in the case of a ‘Coolie’. ``` ``` 12.That said, since the deceased was only ``` ``` 33 years in age at the time of the accident, 40% of his income ought to be added as future prospects, in view of Pranay Sethi (supra). ``` ``` 13.Moving on, Smt.M.R.Jayalatha is also ``` ``` right in arguing that the compensation under the head “Loss of Consortium” ought to have been awarded, at the rate of Rs.40,000/- each to the appellants, since Pranay Sethi(supra) mandates it. ``` ``` 14.Now, turning to the arguments of the ``` ``` learned counsel for the Insurance Company, as regards the heads “Funeral Expenses” and “Loss of Estate”, again,Pranay Sethi(supra) authorizes only Rs.15,000/- each under the said heads. Therefore, the compensation now awarded ``` ``` MACA Nos.2797 & 3239/2017 ``` **==> picture [30 x 8] intentionally omitted <==** ``` by the Tribunal will certainly have to be reduced. ``` ``` 15.On the question of the validity of the licence of the driver of the offending vehicle, Ext.B1 has been produced by the appellant in MACA No.2797/2017 and it was argued that, though ``` ``` it had expired prior to the accident, it was renewed thereafter within time; and therefore, ``` ``` that it ought to be deemed to have been in force ``` ``` at the time of the accident. This aspect has not ``` ``` been considered by the learned Tribunal in any manner, and it has proceeded to assume that Ext.B1 was valid. I am certain that this was not sufficient and that the argument of the ``` ``` Insurance Company ought to have been considered. ``` ``` I, therefore, propose to remand the Original Petition to the learned Tribunal for re- consideration of this issue. ``` ``` 16.Finally, on the question of the ``` ``` MACA Nos.2797 & 3239/2017 ``` **==> picture [30 x 9] intentionally omitted <==** ``` compensation awarded by the Tribunal under the heads “Pain and Suffering”, and “Loss of Love and Affection”, as rightly argued by Sri.P.Jacob ``` ``` Mathew, this was impermissible, as per Satinder Kaur (supra). It will, therefore, require to be deleted. ``` ``` In the afore circumstances: ``` ``` A. MACA No.2797/2017is partly allowed in ``` ``` the following manner: ``` ``` (a)The compensation under the head “Loss of ``` ``` Dependency” is enhanced to Rs.22,17,600/- ``` ``` (Rupees twenty two lakhs seventeen thousand six hundred only), from Rs.12,96,000/-, reckoning the notional income of the deceased to be ``` ``` Rs.11,000/- per month, with 40% future prospects added to it and one-fourth deducted as his personal expenses, as per Pranay Sethi(supra) andSarla Verma & Others v.Delhi Transport ``` ``` Corporation & Another [2010 (2) KLT 802]. ``` ``` MACA Nos.2797 & 3239/2017 ``` **==> picture [30 x 9] intentionally omitted <==** ``` (b)An amount of Rs.1,60,000/- (Rupees one ``` ``` lakh sixty thousand only) is awarded, instead of Rs.1,00,000/- granted by the Tribunal, under the head compensation for “Loss of Consortium”, at the rate of Rs.40,000/- in favour of each of the appellants, as per Pranay Sethi (supra). ``` ``` (c)The compensation under the head “Funeral Expenses” is reduced to Rs.15,000/- (Rupees fifteen thousand only), from Rs.25,000/- awarded by the Tribunal, again as perPranay Sethi ``` ``` (supra). ``` ``` (d)The compensation under the head “Loss of Estate” is reduced to Rs.15,000/- (Rupees fifteen thousand only), from Rs.25,000/- granted ``` ``` by the Tribunal, as per Pranay Sethi (supra). ``` ``` (e) The compensation awarded by the Tribunal under the heads “Pain and Suffering” and “Loss of Love and Affection” are deleted. ``` ``` (f) In all other heads, the compensation ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -14- ``` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the appellants will be at full ``` ``` liberty to recover the compensation, as modified ``` ``` by this Court, from the Insurance Company, along ``` ``` with interest at the rate of 8.5%, (modifying ``` ``` the rate of interest of 9% granted by the ``` ``` Tribunal, in view of the escalation granted by ``` ``` this Court), 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. ``` ``` It goes without saying that, while ``` ``` calculating interest on the amounts enhanced by ``` `this Court` , `a period of 150 days - being the delay in filing this Appeal – shall stand` ``` excluded. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the Tribunal, within a period of ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -15- ``` ``` two months from the date of receipt of a copy ``` ``` this judgment. ``` ``` B. MACA No.3239/2017is allowed in part, ``` ``` remanding the Original Petition to the learned ``` ``` Tribunal solely on the question whether the appellant can be allowed to recover compensation as afore awarded from the respondent herein, who ``` ``` is the owner of the offending vehicle. ``` ``` This shall be done by the learned Tribunal, after affording necessary opportunities to the parties in this Appeal, as also to the driver of the offending vehicle to adduce additional/fresh evidence, but without issuing notices to the claimants; thus culminating in an appropriate ``` ``` Award in this regard, as expeditiously as is possible, but not later than eight months from the date of receipt of a copy of this judgment. For this purpose, the parties of this Appeal shall appear before the Tribunal at 11 a.m. on ``` ``` MACA Nos.2797 & 3239/2017 ``` ``` -16- 28.04.2023; and it will thereupon, issue a notice to the driver of the offending vehicle, leading to the reconsideration as ordered above. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` akv ``` ``` JUDGE ```