MACA Nos. 884/2018 & 1903/2021 - The New India Assurance Co. Ltd. v. Jessy Xavier and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944** **MACA NO.884 OF 2018** **AGAINST THE AWARD IN OP(MV) No.208/2012 DATED 13.11.17 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-II, ALAPPUZHA APPELLANT/3RD RESPONDENT:** THE NEW INDIA ASSURANCE CO.LTD, ERNAKULAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENTS/CLAIMANTS:** 1 JESSY XAVIER W/O. LATE XAVIER P.L. @ SHAJI, PUTHENPURACKAL HOUSE, MARARIKULAM NORTH P.O., PIN – 688549. 2 MARY JESNA REPRESENTED BY HER NEXT FRIEND AND MOTHER JESSY XAVIER, RESIDING AT PUTHENPURACKAL HOUSE, MARARIKULAM NORTH P.O., PIN – 688 549. 3 DESNY XAVIER, REPRESENTED BY HER NEXT FRIEND AND MOTHER JESSY XAVIER, RESIDING AT PUTHENPURACKAL HOUSE, MARARIKULAM NORTH P.O., PIN – 688 549. 4 REETHAMMA LAZAR, W/O. LATE LAZAR, RESIDING AT PUTHENPURACKAL HOUSE, MARARIKULAM NORTH P.O., PIN – 688 549. BY ADVS. SMT.NEETHU PREM SRI.RAHUL SASI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.09.2022, ALONG WITH MACA.1903/2021, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING: **MACA Nos.884/2018 & 1903/2021** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS.JUSTICE SOPHY THOMAS FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 MACA NO.1903 OF 2021** **AGAINST THE AWARD IN OPMV 208/2012 DTD. 13.11.2007 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-II, ALAPPUZHA** ## **APPELLANTS/PETITIONERS 1 TO 4:** 1 JESSY XAVIER AGED 35 YEARS W/O LATE MR.XAVIER P.L @ SHAJI, PUTHENPURACKAL(H), MARARIKKULAM NORTH.P.O,ALAPPUZHA, PIN-688549. 2 MARY JESNA, AGED 13 YEARS,REPRESENTED BY HER NEXT FRIEND AND MOTHER JESSY XAVIER,AGED 35 YEARS,W/O LATE MR.XAVIER P.L @ SHAJI, PUTHENPURACKAL(H), MARARIKKULAM NORTH.P.O, ALAPPUZHA,PIN-688549. 3 DESNY XAVIER, AGED 12 YEARS,REPRESENTED BY HER NEXT FRIEND AND MOTHER JESSY XAVIER,AGED 35 YEARS,W/O LATE MR.XAVIER P.L @ SHAJI,PUTHENPURACKAL(H), MARARIKKULAM NORTH.P.O, ALAPPUZHA,PIN-688549. 4 REETHAMMA LAZAR, AGED 64 YEARS,W/O LATE LAZAR, PUTHENPURACKAL(H), MARARIKKULAM NORTH.P.O, ALAPPUZHA,PIN-688549. BY ADVS. RAHUL SASI NEETHU PREM VIVEK.P.K ## **RESPONDENTS/3RD RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LTD. REGIONAL OFFICE,KANDAMKULATHY TOWERS,M.G.ROAD,ERNAKULAM,COCHIN-682011, REP. BY ITS AUTHORIZED OFFICER. **MACA Nos.884/2018 & 1903/2021 3** BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.09.2022, ALONG WITH MACA.884/2018, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING: **MACA Nos.884/2018 & 1903/2021** **4** ## **SOPHY THOMAS, J.** ------------------------------------ M.A.C.A Nos.884 of 2018 & 1903 of 2021 ------------------------------------ Dated this the 30[th] day of September, 2022 ## **J U D G M E N T** These appeals arise out of the award in OP(MV) No.208 of 2012 on the file of Additional Motor Accidents Claims Tribunal-II, Alappuzha. The claimants therein were the legal heirs of Sri.Xavier P.L who died in a road traffic accident occurred on 17.08.2011. The claimants approached the Tribunal claiming compensation of Rs.22,61,000/- and the Tribunal awarded Rs.16,85,600/-. Alleging that the amount awarded is excessive in nature, the insurer preferred MACA No.884 of 2018, and the claimants preferred MACA No.1903 of 2021 alleging inadequacy of the compensation. 2. Deceased Xavier, a fisherman by profession, while pillion riding a motorcycle on 17.08.2011, was knocked down by KL- 15/7094 bus driven by the 2[nd] respondent in a rash and negligent manner. He was rushed to the Medical College **MACA Nos.884/2018 & 1903/2021** **5** Hospital, Alappuzha and from there he was taken to Medical Trust Hospital, Ernakulam where he was admitted and treated. But he succumbed to the injuries on 19.08.2011. 3. In O.P(MV) No.208 of 2012, the 1[st] respondent was the owner, 2[nd] respondent was the driver and 3[rd] respondent was the insurer of the offending bus. 4. The accidental death of Sri.Xavier and the insurance coverage of the vehicle are not in dispute. 5. According to the insurer, the compensation amount awarded by the Tribunal is on the higher side and so, it has to be scaled down, whereas the case of the claimants is that, the compensation awarded by the Tribunal is on the lower side and so, it has to be enhanced. 6. Before the Tribunal, PWs 1 and 2 were examined and Exts.A1 to A18 and X1 were marked. 7. Now let us see whether the impugned award is to be interfered with as prayed for by the appellants in these appeals. 8. Deceased Xavier was a fisherman aged 32 and that fact is proved through Ext.A9 document. According to his legal **MACA Nos.884/2018 & 1903/2021** **6** heirs, he was earning monthly income of Rs.15,000/-. Since there was no evidence to prove his income, the Tribunal notionally fixed his monthly income at Rs.6,000/-. As per the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), even a daily labourer in unorganised sector was eligible to get his notional income fixed @ Rs.8,000/- in the year 2011. So, his notional income could have been fixed at Rs.8,000/- per month. Since he was aged only 32, 40% addition should have been given towards future prospects. So, his monthly income has to be taken as Rs.11,200/-. Since he was having four dependents, 1/4[th] has to be deducted towards his personal expenses. So, the balance income will be Rs.8,400/-. The multiplier applicable is 16 as he was aged only 32. So, the compensation for loss of dependency could have been assessed as Rs.16,12,800/- (8400x12x16). Since his legal heirs were already awarded an amount of Rs.12,09,600/-, they are entitled to get the difference of Rs.4,03,200/- as enhanced compensation under the head ‘loss of dependency’. 9. Towards medical expenses, the Tribunal awarded **MACA Nos.884/2018 & 1903/2021** **7** Rs.1 lakh against their claim of Rs.50,000/-. Ext.A7 series medical bills amounting to Rs.94,155/- were produced by the claimants before the Tribunal and so, the Tribunal awarded Rs.1 lakh towards medical expenses. Since the actual medical expenses incurred amounts to Rs.94,155.69/supported by medical bills, the claimants were entitled to get the actual expenses incurred i.e. Rs.94,155/- rounded to Rs.94,200/-. So, there is an excess amount of Rs.5,800/- to be deducted from the award amount. 10. Towards pain and suffering, Rs.50,000/- was awarded by the Tribunal. Since Sri.Xavier died on the second day of the accident and the claim is put forward by his legal heirs, they are not eligible to get compensation for pain and suffering and so, Rs.50,000/- awarded under that head is liable to be deducted. 11. Under the head 'loss of consortium', the Tribunal awarded Rs.40,000/-. Towards loss of love and affection, the Tribunal awarded Rs.2 lakh. For mental agony to the claimants, the Tribunal awarded Rs.50,000/-. As per the decisions **National Insurance Company Ltd.** vs. **Pranay** **MACA Nos.884/2018 & 1903/2021** **8** **Sethi and Others,** [(2017) 16 SCC 680] and **Magma General Insurance Co. Ltd.** vs. **Nanu Ram Alias Chuhru Ram** (2018 (3) KLT Online 3095 (SC)), the dependentsclaimants, who are the wife, children and mother, are eligible to get compensation for loss of consortium spousal, filial and parental. Going by _Pranay Sethi's case_ (supra), the legal heirs of deceased Xavier will get Rs.44,000/- each under the head 'consortium' including 10% hike for the delay of three years. So, they will get a total amount of Rs.1,76,000/-. But, the amount awarded under the heads consortium, loss of love and affection, mental agony etc. amounting to Rs.2,90,000/- in total is liable to be deducted. So, an excess amount of Rs.1,14,000/- awarded by the Tribunal is liable to be deducted from the award amount. 12. The compensation awarded under all other heads seems to be just and proper. 13. When the legal heirs are eligible to get enhanced compensation of Rs.4,03,200/- under the head ‘loss of dependency’, they are liable to return the excess amount of Rs.1,69,800/- (5800+50000+114000) received under the **MACA Nos.884/2018 & 1903/2021** **9** award. In that event, they will get additional compensation of Rs.2,33,400/-. |Head of<br>claim<br>(1)|Amount<br>awarded by<br>the Tribunal<br>(2)|Amount<br>awarded in<br>appeal<br>(3)|Amounts<br>deducted in<br>appeal<br>(4)|Difference to<br>be drawn as<br>enhanced<br>compensation<br>(5)| |---|---|---|---|---| |Loss of<br>dependency|Rs.12,09,600/-|Rs.16,12,800/-|-|Rs.4,03,200/-| |Medical<br>expenses|Rs.1,00,000/-|Rs.94,200/-|Rs.5,800/-|-| |Pain and<br>suffering|Rs.50,000/-|-|Rs.50,000/-|-| |Compensati<br>on for loss<br>of<br>consortium,<br>love and<br>affection<br>and mental<br>agony|Rs.2,90,000/-|Rs.1,76,000/-|Rs.1,14,000/-|-| |Total|||Rs.1,69,800/-|Rs.4,03,200/-| |Enhanced compensation ((403200-169800)||||Rs.2,33,400/-| 14. In the result, the MACA No.1903 of 2021 is liable to be allowed awarding enhanced compensation of Rs.2,33,400/- whereas MACA No.884 of 2018 is liable to be dismissed. The respondent/insurer is directed to deposit the enhanced compensation in the Bank Account of the appellants in MACA No.1903 of 2021 in equal proportion with interest at **MACA Nos.884/2018 & 1903/2021** **10** 8% per annum from the date of petition till the date of deposit (except 771 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. Accordingly, the appeals are disposed of allowing MACA No.1903 of 2021 and dismissing MACA No.884 of 2018. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp