MACA Nos. 945 of 2012; 1047 of 2012; and 1079 of 2012 (National Insurance Company Ltd. v. Leelamma John; LiJu John Mathew; Liji Rachel John; Suresh Babu; Madhu)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 MACA NO. 945 OF 2012 ``` ## **`AGAINST THE AWARD IN OP(MV)NO.332/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA`** ## **`APPELLANT:`** ``` BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD. KOLLAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE M.G.ROAD, ERNAKULAM. BY ADV SRI.LAL GEORGE ``` ## **`RESPONDENTS:`** ``` 1LEELAMMA JOHN W/O.LATE MATHAI JOHN @ JOHN MATHAI, PUNNAMMOOTTIL HOUSE, KUMMANNOOR P.O., IRAVON VILLAGE, KONNI, PATHANAMTHITTA - 689 691. 2LIJU JOHN MATHEW S/O.LATE MATHAI JOHN @ JOHN MATHAI, PUNNAMMOOTTIL HOUSE, KUMMANNOOR P.O., IRAVON VILLAGE, KONNI PATHANAMTHITTA - 689 691 3LIJI RACHEL JOHN S/O.LATE MATHAI JOHN @ JOHN MATHAI, PUNNAMMOOTTIL HOUSE, KUMMANNOOR P.O., IRAVON VILLAGE, KONNI PATHANAMTHITTA - 689 691. 4SURESH BABU, S/O.SUGUNAN MALIYIKKAL VEEDU, KOTTAMKULANGARA, CHAVARA VILLAGE, KOLLAM DISTRICT- 691 583. 5MADHU, S/O.KRISHNAN KOCHAYYATHU HOUSE, ALAPPADU P.O, KARUNAGAPPALLY, KOLLAM - 690 518. BY ADVS. SRI.N.BABU VARGHESE SRI.T.K.KOSHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.04.2023, ALONG WITH MACA.1047/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.945 OF 2012 & Con. Cases ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 MACA NO. 1047 OF 2012 ``` ## **`AGAINST THE AWARD IN OP(MV)NO.331/2003 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL, PATHANAMTHITTA`** ## **`APPELLANT:`** ``` LIJU JOHN MATHEW S/O.LATE MATHAI JOHN @ JOHN MATHAI, PUNNAMMOOTTIL HOUSE, KUMMANNOOR.P.O., IRAVON VILLAGE, KONNI, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.T.K.KOSHY SRI.N.BABU VARGHESE SMT.V.V.RISANI ``` ## **`RESPONDENTS:`** ``` 1SURESH BABU S/O.SUGUNAN, MALIYEKKAL VEEDU, KOTTAMKULANGARA, CHAVARA VILLAGE, KOLLAM DISTRICT-691583. 2MADHU S/O.KRISHNAN, KOCHAYYATHU HOUSE, ALAPPADU.P.O., KARUNAGAPPALLY, KOLLAM-690518. 3BRANCH MANAGER NATIONAL INSURANCE CO.LTD., KOLLAM-690518. BY ADV SRI.LAL GEORGE ``` ## `SRI.SEBASTIAN VARGHESE-SC` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.04.2023, ALONG WITH MACA.945/2012, 1079/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.945 OF 2012 & Con. Cases ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 MACA NO. 1079 OF 2012 ``` ``` AGAINST THE AWARD IN OP(MV)NO.332/2003 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, PATHANAMTHITTA`** ## **`APPELLANTS:`** ``` 1LEELAMMA JOHN W/O.LATE MATHAI JOHN @ JOHN MATHAI, PUNNAMMOOTTIL HOSUE, KUMMANNOR P.O, IRAVON VILLAGE, KONNI, PATHANAMTHITTA DISTRICT. 2LIJU JOHN MATHEW S/O.LATE MATHAI JOHN @ JOHN MATHAI, PUNNAMMOOTTIL HOSUE, KUMMANNOR P.O, IRAVON VILLAGE, KONNI, PATHANAMTHITTA DISTRICT. ``` ``` 3LIJI RACHEL JOHN D/O.LATE MATHAI JOHN @ JOHN MATHAI, PUNNAMMOOTTIL HOSUE, KUMMANNOR P.O, IRAVON VILLAGE, KONNI, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.T.K.KOSHY SRI.N.BABU VARGHESE SMT.V.V.RISANI ``` ## **`RESPONDENTS:`** - `1 SURESH BABU S/O.SUGUNAN, MALIYEKKAL VEEDU, KOTTAMKULANGARA, CHAVARA VILLAGE, KOLLAM DISTRICT - 691 583.` - `2 MADHU S/O.KRISHNAN, KOCHAYYATHU HOUSE, ALAPPADU P.O, KARUNAGAPPALLY, KOLLAM 690 518.` ``` 3BRANCH MANAGER NATIONAL INSURANCE CO.LTD, KOLLAM 690 518. BY ADV SRI.LAL GEORGE SRI.SEBASTIAN VARGHESE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.04.2023, ALONG WITH MACA.1047/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.945 OF 2012 & Con. Cases ``` ``` 4 ``` ## **`JUDGMENT`** ## [ **MACA Nos.945, 1047 & 1079/2012]** The afore appeals are of the year 2012 and have not been admitted. However, both sides are _ad idem_ that they can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. 2. I, therefore, admit these Appeals and proceed to dispose it of finally, with the consent of both sides. 3. I am considering these Appeals together since they arise out of the same accident. 4. On 06.12.2002, Sri.Liju John Mathew – the petitioner in OP(MV)No.331/2003, was riding a motor cycle, with Sri.Mathai John as pillion, when the offending vehicle – a Tata Sumo, driven in a rash and negligent manner, hit it from the opposite direction. 5. Sri.Liju John Mathew was injured in the accident, while Sri.Mathai John succumbed to the injuries; whereupon, the former filed OP(MV)No.331/2003 before the Motor Accidents Claims Tribunal, Pathanamthitta (‘Tribunal’, for short), seeking compensation for his injuries; while, the legal heirs of Mathai John filed OP(MV)No.332/2003 before the same Tribunal, seeking compensation for his death. ``` MACA NO.945 OF 2012 & Con. Cases ``` ``` 5 ``` 6. The learned Tribunal considered both the Original Petitions together and issued a final Award dated 09.02.2012, granting Sri.Liju John Mathew an amount of Rs.2,81,170/- as compensation against his claim of Rs.5,00,000/-; while, the legal heirs of Mathai John were granted a compensation of Rs.4,77,000/-, against their claim of Rs.21,00,000/-. 7. MACA No.1047/2012 has been filed by Sri.Liju John Mathew assailing the compensation awarded to him as being inadequate; while, the legal heirs of Mathai John have filed MACA No.1079/2012, asserting that the compensation awarded to them by the learned Tribunal is exiguous. 8. While so, the National Insurance Company Limited - which insured the offending vehicle, has filed MACA No.945/2012 against OP(MV)No.332/2003, contending that the compensation awarded for the death of Mathai John is excessive. 9. I have head Smt.V.V.Risani – learned counsel for the appellants in MACA Nos.1047/2012 and 1079/2012 and Sri.Sebastian Varghese – learned Standing Counsel for the National Insurance Company - the appellant in MACA No.945/2012. 10. I will first deal with MACA No.1047/2012, since there is no appeal by the Insurance Company against the Award of the learned ``` MACA NO.945 OF 2012 & Con. Cases ``` ## **`6`** ## Tribunal in OP(MV)No.331/2003. 11. Smt.V.V.Risani – learned counsel for the appellant, argued that the notional income of Rs.3,500/- adopted in favour of her client by the Tribunal is inadequate, because he was a professional driver, who was earning Rs.5,000/- per month. She then pointed out that, even though her client had suffered very grievous injuries, requiring hospitalization of more than 47 days across a period of two years, the compensation awarded under the head “Bystander Expenses” and “Pain and Suffering”, as also “Loss of Amenities” is so exiguous that it bears no rational nexus to the gravity of the injuries. 12. In opposition, however, Sri.Sebastian Varghese argued that the compensation awarded by the Tribunal in this case is without error and thus prayed that this Appeal be dismissed. 13. When I consider the rival submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute - it is evident that the injuries sustained by the appellant in this case can never be seen to be trivial. Ext.A7 – Disability Certificate, read along with Ext.A11 series of Discharge Summaries, establishes that he suffered the following injuries: ``` MACA NO.945 OF 2012 & Con. Cases ``` ``` 7 ``` “(1) _Head injury, (2) Fracture both bones right forearm, (3) Fracture both bones right leg, along with_ (1) _Closed fracture both bones forearm right, (2) Closed comminuted sub-trochanteric fracture right femur, (3) Type II open fracture, (4) Open knee injury right, (5) Head injury cerebral edema, (6) Fracture lateral wall of right maxillary sinus & right greater wing of sphenoid._ ” (sic) 14. As I have already said above, the appellant was hospitalized for a total period of 47 days, over the stretch of two years, but the learned Tribunal has awarded only Rs.2,000/- towards “Extra Nourishment” and a sum of Rs.4,200/- towards “Bystander Expenses”. It has kept the compensation under the heads “Pain and Suffering” and “Loss of Amenities” to a mere Rs.20,000/- and Rs.10,000/- respectively. I have little doubt that all the above will require to be revised, at least marginally; or to the extent claimed for. 15. Coming to the notional income of the appellant, no doubt, as a driver, earning Rs.5,000/- per month. However, except Ext.A9 – which is his driving licence, he has not produced any other evidence to establish either his avocation or his stated income. Obviously, the learned Tribunal could have only taken his notional income, which it has done, adopting a figure of Rs.3,500/-. 16. In _**Ramachandrappa v. Manager, Royal Sundaram**_ ## **`MACA NO.945 OF 2012 & Con. Cases`** ## **`8`** _**Alliance Insurance Company Ltd.** [(2011) 13 SCC 236]_ , the Hon’ble Supreme Court has postulated even in the case of a ‘Coolie’, or a person with unascertainable income, in the year 2002 - when the accident occurred – the minimum figure to be reckoned is Rs.3,500/-. Further, in _**Rajani v. Oriental Insurance Company Limited**_ [2022 (5) KLT OnLine 1012 (SC)], the Hon’ble Supreme Court has obliged the Courts to take a more robust view when the injured is involved in technical avocation. 17. Pertinently, the Tribunal has reckoned the avocation of the appellant to be a taxi driver and has then fixed his notional income. In such perspective, I am of the view that this Court will be justified in adopting a figure of Rs.4,000/- per month as his notional income, which is a mere Rs.500/- more than what has been authorized by _**Ramachandrappa**_ (supra) in the case of a ‘Coolie’. This is because, there can be no doubt that the appellant was not a mere ‘Coolie’, but a person engaged in a technical avocation - which that of a driver is. 18. The afore being said the multiplier that the Tribunal ought to have adopted for the purpose of computing the compensation for ‘Disability’ is admittedly ‘18’ and not ‘17’ as per _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].**_ 19 **`.`** Further on the question of the percentage of disability ``` MACA NO.945 OF 2012 & Con. Cases ``` ``` 9 ``` suffered by the appellant, Ext.A7 – Permanent Disability Certificate records it to be 17%. The learned Tribunal, however, reduced it to 8%, merely for the reason that the appellant had not presented himself for its observation since he was employed in Dubai at that time. I fail to understand how the learned Tribunal could have arrived at such a percentile, when Ext.A7 - Permanent Disability Certificate remains unimpeached - it having been issued by a competent Medical Board. I have no doubt that the percentile of disability will have to be revised as mentioned in Ext.A7. 20. I will now deal with the assertions of the parties in MACA Nos.1079/2012 and 945/2012. 21. As I have indited above, in the accident in question, Mathai John lost his life. He is survived by his wife and two children, who filed OP(MV)No.332/2003, seeking compensation for his death; and they assert before this Court that the compensation awarded in their favour is exiguous, because the notional income adopted in favour of the deceased is absolutely inadequate. They assert that late Mathew John was working as an Electrician in Abu Dhabi and that he was earning Rs.40,000/- per month. 22. Smt.V.V.Risani further argued that the compensation awarded to the appellants in MACA No.1079/2012, under the head ## **`MACA NO.945 OF 2012 & Con. Cases`** ``` 10 ``` “Loss of Consortium” is woefully insufficient because, in _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662)], the Hon’ble Supreme Court has authorized an amount of Rs.40,000/- each to them. She then pointed out that the compensation granted by the Tribunal under the heads “Funeral Expenses” and “Loss of Estate” is much lesser than what has been sanctioned by _**Pranay Sethi**_ (supra); adding that substantive sum ought to have been granted by the learned Tribunal under the head “Pain and Suffering” also. 23. Sri.Sebastian Varghese, on the other hand, submitted that the findings of the learned Tribunal with respect to the notional income of the deceased and the grant of compensation under various other heads are in order, except for “Loss of Earning Power”/”Loss of Life”.He argued that there is an error in this because, the learned Tribunal has adopted the multiplier to be ‘15’, when it should have been ‘11’ as per _**Sarla Verma (Supra)** ,_ since the deceased was 53 years at the time of the accident. 24. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. ``` MACA NO.945 OF 2012 & Con. Cases ``` ## **`11`** 25. On the question of notional income of the deceased, the claimants have attempted to prove it on the strength of Ext.A17 - Salary Certificate, issued by Abu Dhabi Municipality; and Exts.A18 to A19 Passports, to show that the deceased was having “Work Visa” endorsed on them. 26. The learned Tribunal, however, concluded even though Ext.A14 - Experience Certificate shows that he was a Senior Electrician of Vehicles, his term of employment had ended on 06.12.2002. It nevertheless found, from Ext.A17 series, that the deceased had a monthly salary of 3310 Dirhams, but proceeded to fix his notional income as being Rs.3,500/-, because his employment had already been terminated at the time of the accident. 27. I must say that the contentions of the appellants in this case have great worth because deceased Mathai John cannot be seen to be a mere ‘coolie’, or a person with an unascertainable income. The accident happened on 06.12.2002, while the evidence clearly show that his employment would have ended only on that day or later. Further, Ext.A15 - Statement of Accounts of the deceased in Federal Bank Ltd., Konni Branch, from 01.01.2000 to 01.01.2003, luculently establishes that large sums of money had been credited therein, which the claimants claim to be his salary. ``` MACA NO.945 OF 2012 & Con. Cases ``` ## **`12`** 28. All this put together, I am without doubt that the income of the deceased Mathai John ought to have been fixed much higher by the learned Tribunal, than Rs.3,500/-, which is the least that could have been granted, going by _**Ramachandrappa (Supra),**_ even in the case of a ‘coolie’. In the backdrop of the sum total of the afore evidence, I am of the firm view that this Court will be justified in reckoning the notional income of the deceased to be at least Rs.7,500/-; and since the deceased was 53 years at the time of the accident, 10% of his income has to be added to it as future prospects, as per _**Pranay Sethi (Supra).**_ 29. That being said, the compensation awarded by the Tribunal under the heads ‘Funeral Expenses’ and ‘Loss of Estate’ requires to be revised because, it has only granted Rs.10,000/- each under them, while _**Pranay Sethi (Supra)**_ authorizes a minimum of Rs.15,000/- each. Similarly, since the deceased is survived by his wife and two children, they are individually entitled to Rs.40,000/- towards compensation under the head ‘Loss of Consortium’, which has been denied by the learned Tribunal. 30. When I say so, of course, the learned Tribunal could not have granted any amount under the head ‘Loss of Love and Affection’ to any of the appellants as per _**United India Insurance Company Ltd. v.**_ _**Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780].**_ ## **`MACA NO.945 OF 2012 & Con. Cases`** ## **`13`** 31. Finally, the question arises as to what is the multiplier ought to have been adopted by the learned Tribunal, while fixing compensation for ‘Loss of Earning Power’/ ‘Loss of Life’ as per _**Sarla Verma (Supra).**_ It is undisputed that, since the deceased was 53 years at the time of the accident and his unfortunate death, the multiplier could only be ‘11’ and not ‘15’, as has been adopted by the Tribunal. In the afore circumstances, these appeals are partly allowed in the following manner: ## **MACA No.1047 of 2012** (a) The compensation under the head ‘Disability’ is enhanced to Rs.1,46,880/-, from Rs.57,120/-, reckoning the notional income of the appellant to be Rs.4,000/- per month and his percentile of disability to be 17, as per Ext.A7 – Permanent Disability Certificate. (b) Axiomatically, the compensation awarded by the Tribunal under the head ‘Loss of Earning’ is revised to Rs.48,000/-, from Rs.42,000/-, reckoning the notional income of the appellant to be Rs.4,000/- per month. (c) The compensation under the head ‘Extra Nourishment’ is enhanced to Rs.9,400/-, reckoning Rs.200/- per day as the expenses, for a total of 47 days of hospitalization. ## **`MACA NO.945 OF 2012 & Con. Cases`** ## **`14`** (d) The compensation under the head ‘Bystanders Expenses’ is enhanced to Rs.16,450/-, reckoning Rs.350/- per day as the expenses, for a total of 47 days of hospitalization. (e) The compensation under the head ‘pain and Sufferings’ is enhanced to Rs.50,000/-, from Rs.20,000/-. (f) The compensation under the head ‘Loss of Amenities of Life’ is enhanced to Rs.15,000/-, from Rs.10,000/-. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant 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 7.5% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the sums 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. ## **MACA Nos.945 & 1079 of 2012** (a) The compensation awarded under the head ‘Loss of Earning ## **`MACA NO.945 OF 2012 & Con. Cases`** ## **`15`** Power’/’Loss of Life’ is enhanced to Rs.7,26,000/-, from Rs.4,20,000/-, reckoning the notional income of the deceased to be Rs.7,500/- per month, with 10% future prospects added to it, as per _**Pranay Sethi (Supra)**_ and deducting one third towards his personal expenses, as per _**Sarla Verma (Supra).**_ The multiplier adopted in this regard is ‘11’ as admitted by both sides, as per _**Sarla Verma (Supra).**_ (b) The compensation under the head ‘Funeral Expenses’ is enhanced to Rs.15,000/-, from Rs.10,000/-, as per _**Pranay Sethi (Supra).**_ (c) The compensation under the head ‘Loss of Estate’ is enhanced to Rs.15,000/-, from Rs.10,000/-, as per _**Pranay Sethi (Supra).**_ (d) The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.1,20,000/-, from Rs.15,000/- as awarded by the Tribunal, as per _**Pranay Sethi (Supra),**_ reckoning Rs.40,000/- each in favour of the appellants. (e) The compensation awarded by the Tribunal to a sum of Rs.20,000/-, under the head ‘Loss of Love and Affection’, is deleted. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellants will be at full liberty to recover the ``` 16 ``` ## **`MACA NO.945 OF 2012 & Con. Cases`** compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 7.5% 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. In view of the afore, the sums 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 ``` ``` akv/MC ```