High Court of KeralaSingle Judge2022-10-28Appeals allowed in part; Tribunal’s award enhan...

MACA Nos.161 & 3363 of 2015 (Rini Joy & Ors vs National Insurance Company Ltd)

Case / Petition Number:MACA Nos.161 & 3363 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2022-10-28
Court Decision / Holding: The appeals are allowed in part. The compensation amounts are re-worked and enhanced; The monthly income fixed at Rs.15,000; Future prospects fixed at 25%; Funeral expenses reduced to Rs.15,000; Loss of estate increased to Rs.15,000; Love and affection eliminated; Consortium increased to Rs.1,20,000; Loss of dependency enlarged to Rs.17,55,000, resulting in a total enhanced compensation of Rs.19,15,000; The Insurance Company to pay enhanced amounts with 5% interest from the petition date; payment to Bank account by NEFT/RTGS within a month, with set-off for any pre-paid amounts and consequences for non-compliance.
Final Disposition: Appeals allowed in part; Tribunal’s award enhanced; NIC to deposit enhanced amount with 5% interest from the petition date; payment by NEFT/RTGS within one month; set-off for any pre-paid amounts; if NIC fails to deposit, interest on enhanced amount shall run from the petition date; final total enhanced compensation Rs.19,15,000.

Parties to the Case

Appellants / Petitioners

NATIONAL INSURANCE CO. LTD

Respondents

RINI JOY
JERIN JOY
JEEVAN JOY MINOR
VARGHESE
DEVASSY A.D.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Lal George

Counsels for Respondents

• Sri C.S. Manilal
• Sri Cyriac Kuri an
• Sri S. Nidheesh

Case Synopsis & Summary

This is a motor accident claims appeal arising from OPMV 653/2011 before the Motor Accidents Claims Tribunal, Pala, involving the death of Joy, S/o Abraham, in a road accident on 17-3-2011. The National Insurance Company Ltd (NIC) appeals MACA 161/2015 against the Tribunal’s compensation award, while the claimants (Rini Joy and family) cross-appeal in MACA 3363/2015 seeking higher damages. The Kerala High Court, C. Jayachandran, heard both appeals on 28 October 2022. The Tribunal had fixed the deceased’s monthly income at Rs 10,000 and calculated future prospects at 30 percent. NIC contended that Rs 8,000 would be more appropriate in light of Ramachandrappa; the claimants argued for Rs 15,000, supported by Exts A8-A10 showing business activity in real estate and a chitty, and by a shop income. After considering the evidence, the court held that Rs 15,000 was justified, noting Ext.A9 (a KSFE chitty passbook) indicating substantial regular remittance and Ext.A10 (sale agreements) showing real estate involvement. The court also held that future prospects should be 25 percent (not 30 percent) due to unorganized sector work. Relying on Pranay Sethi, it revised heads of damages: funeral expenses reduced to Rs 15,000; loss of estate increased to Rs 15,000; love and affection eliminated; consortium increased to Rs 1,20,000; loss of dependency enlarged to Rs 17,55,000, producing a total enhanced award of Rs 19,15,000. The insurer must pay the enhanced sum with 5% interest from the petition date; payment by NEFT/RTGS within a month, with set-off for any pre-paid amounts and consequences for non-compliance.

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the deceased’s monthly income should be reduced to Rs.8,000 in line with Ramachandrappa; argues that the claimant’s income is not fixed; suggests 25% future prospects; argues funeral expenses to be Rs.15,000; suggests loss of estate to Rs.15,000; asserts that love and affection should be disregarded; contends to enhance the consortium as per guidelines.

Contentions of Respondents

The claimants contend that the monthly income is Rs.15,000 based on Exts A9–A10 and other evidence; rely on Ext A9 passbook and Ext A10 real estate agreements to show real estate business; seek 30% future prospects (though Court later accepts 25%), demand higher loss of estate and preserve love and affection; urge to maintain high consortium and other heads.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[AIR 2011 SC 2951]	Distinguished	Court cites Ramachandrappa to comment on minimum income benchmarks but departs in this case due to other evidence indicating higher income.
National Insurance Company Ltd. v. Pranay Sethi and others	[(2017) 16 SCC 680]	Positive	Court applies Pranay Sethi guidelines on compensation heads, including consortium and loss of estate, leading to enhanced award.

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Extracted Judgment Text

Exact text extracted from official judgment records.

``` MACA NOs.161 & 3363 OF 2015 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 ``` ## **`MACA NO. 161 OF 2015`** ``` OPMV 653/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT/3RD RESPONDENT IN OPMV:`** ``` NATIONAL INSURANCE COMPANY LTD CHERUPUSHPAM BUILDING, PALA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, ERNAKULAM. ``` ``` BY ADV SRI.LAL GEORGE ``` ## **`RESPONDENTS/CLAIMANTS 1 TO 3 AND RESPONDENTS 1 AND 2 IN OPMV:`** ``` 1RINI JOY W/O.LATE JOY, THENGUMPALLYPARAMBIL HOUSE, MEMURY P.O, MANJOOR, KOTTAYAM 686 617. 2JERIN JOY MINOR D/O.LATE JOY, REPRESENTED BY MOTHER AND NATURAL GUARDIAN RINI JOY, THENGUMPALLYPARAMBIL HOUSE, MEMURY P.O, MANJOOR, KOTTAYAM 686 617. 3JEEVAN JONY MINOR S/O.LATE JOY, REPRESENTED BY MOTHER AND NATURAL GUARDIAN RINI JOY, THENGUMPALLYPARAMBIL HOUSE, MEMURY P.O, MANJOOR, KOTTAYAM 686 617. 4VARGHEESE S/O.LONAPPAN, KOYIKKARA HOUSE, KALLOOR KARA, NEAR KALLOOR CHURCH, KALLOOR VEDAKUMMURY VILLAGE, 691 525, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 5DEVASSY A.D AMBALATHINGAL HOUSE, THAMARASSERY ROAD, POONITHURA, ERNAKULAM 682 038. BY ADVS. SRI.CYRIAC KURIAN SRI.C.S.MANILAL SRI.S.NIDHEESH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, ALONG WITH MACA.3363/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs.161 & 3363 OF 2015 ``` 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 ``` ## **`MACA NO. 3363 OF 2015`** ## **`OPMV 653/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA`** ## **`APPELLANTS/PETITIONERS:`** ``` 1RINI JOY W/O.LATE JOY, THENGUMPALLYPARAMBIL HOUSE, MEMURY PO, MANJOOR, KOTTAYAM. 2JERIN JOY S/O.LATE JOY, THENGUMPALLYPARAMBIL HOUSE, MEMURY PO, MANJOOR, KOTTAYAM. 3JEEVAN JOY MINOR REPRESENTED BY NEXT FRIEND AND GUARDIAN RINI JOY, THENGUMPALLYPARAMBIL HOUSE, MEMURY PO, MANJOOR, KOTTAYAM. DOB - 23-10-2000. BY ADVS. SRI.C.S.MANILAL SRI.CYRIAC KURIAN SRI.S.NIDHEESH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1VARGHESE S/O.LONAPPAN, KOYIKKARA HOUSE,KALLOOR KARA, NEAR KALLOOR CHURCH, KALLOOR,VADAKKUMMURY VILLAGE, MUKUNDAPURAM TALUK, TRICHUR DISTRICT-680 317. 2DEVASSY A.D. AMBALATHINGAL HOUSE, THAMARASSERYROAD, POONITHURA, ERNAKULAM-682038. 3THE NATIONAL INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, CHERUPUZHAPAM BUILDINGS, PALA-686 575. BY ADV SRI.LAL GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, ALONG WITH MACA.161/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **`MACA NOs.161 & 3363 OF 2015`** 3 ## **`C.JAYACHANDRAN,J`** ----------------------------------------------- `MACA Nos.161 and 3363 of 2015` ----------------------------------------------- `Dated this the 28[th] day of October, 2022` ## **`JUDGMENT`** ``` This is a case in which one Joy, S/o. Abraham, met with an accident on 17.3.2011 and sustained serious injuries, to which he succumbed. The appeal first above is preferred by the 3[rd] respondent/Insurance Company and the appeal second above referred is preferred by a claimant in O.P(MV) No.6535/2011 of the Motor Accidents Claims Tribunal, Pala. While the appellant in MACA No.161/2015 would assail the impugned award on the premise that the compensation awarded is excessive, the appellant in MACA No.3363/2015 impugns the award essentially on the ground that the compensation amounts awarded under various heads are insufficient in terms of law. ``` ``` 2.Heard Sri.Lal George, learned counsel for the appellant in MACA No.161/2015 and Sri.S. Nidheesh, learned counsel for the appellants in MACA No.3363 of 2015. ``` ``` 3.Sri. Lal George, representing the appellant in MACA No.161/2015, submitted that the monthly income of Rs.10,000/- reckoned by the Tribunal is on the higher ``` ``` MACA NOs.161 & 3363 OF 2015 ``` 4 ``` side. The learned counsel points out that the income initially claimed was Rs.10,000/-, which was subsequently amended as Rs.20,000/-. According to the counsel, the claimant was a real estate broker, who does not fetch any regular monthly income. Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951] recommends Rs.8,000/- only towards monthly income for the year 2011, wherefore, the counsel seeks appropriate reduction in the monthly income. ``` ``` 4.Per contra, the learned counsel for the appellants in MACA No.3363/2015 (claimant) submitted that the monthly income reckoned by the Tribunal is on the lower side. The leaned counsel relied upon Ext.A8 Trade certificate, in the trade of ‘Fitter’. Secondly, the learned counsel relied upon Ext.A9, a passbook in respect of a chitty with the Kerala State Financial Enterprises, which would go to show that the deceased was regularly remitting Rs.10,000/- per month in the said chitty. Then the learned counsel invited the attention of this Court in Ext.A10 series of document, which are agreements for sale, wherein the deceased was a party, which would clearly establish that he was seriously involved in the real ``` **`MACA NOs.161 & 3363 OF 2015`** 5 ``` estate business. In the light of these documents, the monthly income of Rs.10,000/- reckoned is on the lower side, is the submission of the learned counsel. ``` ``` 5.Having heard the learned counsel appearing on both sides, this Court finds considerable force in the submission made by the learned counsel for the claimants (appellants in MACA.3363 of 2015). As rightly pointed out by the learned counsel, Ext.A9 is a clinching evidence in the form of a passbook in respect of a chitty with the KSFE Ltd. The subscriber’s name is that of the deceased. A perusal of Ext.A9 passbook would indicate that a sum of Rs.7,500/- was regularly being paid by the deceased in that chitty as against the chitty instalment amount of Rs.10,000/-. Again, this Court choose to rely upon the documents forming part of Ext.A10 series, which are agreements for sale, five in number. In all the said agreements, the deceased was a party, either as a seller or as a purchaser, necessarily indicating that he was involved in real estate business. That apart, it has been elicited in the cross-examination of PW1, the wife of the deceased, that he was conducting a shop, where certain machines were given on rent. It was also brought out that ``` **`MACA NOs.161 & 3363 OF 2015`** 6 ``` after his death, the shop is not functioning. The claimants have also espoused a claim to the effect that the deceased was attending to the job of Light Motor Vehicle Fitter. When all these avocations are reckoned, this Court would endorse that the monthly income reckoned by the Tribunal at Rs.10,000/- is insufficient. When an amount to the tune of Rs.7,500/- is being remitted on a monthly basis towards a chitty, coupled with other family life expenses, it would be just and reasonable to fix the monthly income of the deceased at Rs.15,000/-. It is so ordered. ``` ``` 6.The next claim of the appellant/Insurance Company is with respect to the future prospects reckoned at 30%. Inasmuch as the deceased was working in an unorganised sector and his age was 47 at the time of accident, only 25% of the income could be reckoned towards future prospects, is the submission. This submission of the learned counsel for the appellant/Insurance Company is well founded and hence accepted. Again, the learned counsel for the appellant/Insurance Company pointed out that a sum of Rs.25,000/- was granted towards funeral expenses, which is higher by Rs.10,000/-. Reckoning the ``` ``` MACA NOs.161 & 3363 OF 2015 ``` 7 ``` amount specified in National Insurance Company Ltd. v. Pranay Sethi and others [(2017) 16 SCC 680] the same is liable to be lowered to Rs.15,000/-. However, in the case of loss of estate, Rs.5,000/- alone is seen granted, which is liable to be enhanced to Rs.15,000/-. Again, in terms of the mandate flowing from Pranay Sethi (supra) towards consortium, the learned counsel would submit that the claimants are entitled to Rs.40,000/- each, being the dependents of the deceased. The wife and two minor children are the claimants. As consortium, they are entitled to a total sum of Rs.1,20,000/-. The Tribunal granted Rs.50,000/- towards love and affection and Rs.1,00,000/- towards consortium, which course is not sanctioned by law, submits the learned counsel. This Court accepts the contention of the learned counsel for the appellant/Insurance Company in toto in this regard, finding that the claimants are entitled to Rs.1,20,000/- alone towards consortium. Therefore, the amount granted under love and affection has to be done away with and the consortium of Rs.1,00,000/- has to be enhanced to Rs.1,20,000/-. ``` ``` 7.In the circumstances, both the MACAs are allowed ``` ``` MACA NOs.161 & 3363 OF 2015 ``` 8 ``` in part. The compensation amount payable to the claimants (appellants in MACA No.3363/2015) is re-worked as indicated in the tabular statement as follows: ``` |`Sl.` `No.` `Head of Claim` `Amount awarded` `by` `the` `Tribunal(Rs.)` `Total` `amount` `after` `enhancement in` `appeal (Rs.)` `1` `Loss of earnings` `Nil` `0` `2` `Transport to hospital` `10,000` `10,000` `3` `Extra nourishment` `Not entitled` `0` `4` `Damages to clothing` `Not entitled` `0` `5` `Treatment expenses` `Not entitled` `0` `6` `Bystander’s expenses` `Not entitled` `0` `7` `Funeral expenses` `25,000` `15,000` `8` `Pain and suffering` `Not entitled` `0` `9` `Loss of dependency` `13,52,052` `(13000x2/3x12` `x13)` `17,55,000` `(15,000x3/4x12` `x13)` `(dependents` `being 4 in` `number)` `10` `Loss of estate` `5,000` `15,000` `11` `Loss of love and` `affection` `50,000` `0` `12` `Loss of consortium` `1,00,000` `1,20,000` `(40,000x3)` `13` `Compensation for loss of` `expectancy of life` `Not entitled` `0` `Total` `15,42,052` `19,15,000` `Amount enhanced = Rs.3,72,948/-(Rupees Three lakhs seventy` `two thousand nine hundred and forty eight only)`|`Sl.` `No.` `Head of Claim` `Amount awarded` `by` `the` `Tribunal(Rs.)` `Total` `amount` `after` `enhancement in` `appeal (Rs.)` `1` `Loss of earnings` `Nil` `0` `2` `Transport to hospital` `10,000` `10,000` `3` `Extra nourishment` `Not entitled` `0` `4` `Damages to clothing` `Not entitled` `0` `5` `Treatment expenses` `Not entitled` `0` `6` `Bystander’s expenses` `Not entitled` `0` `7` `Funeral expenses` `25,000` `15,000` `8` `Pain and suffering` `Not entitled` `0` `9` `Loss of dependency` `13,52,052` `(13000x2/3x12` `x13)` `17,55,000` `(15,000x3/4x12` `x13)` `(dependents` `being 4 in` `number)` `10` `Loss of estate` `5,000` `15,000` `11` `Loss of love and` `affection` `50,000` `0` `12` `Loss of consortium` `1,00,000` `1,20,000` `(40,000x3)` `13` `Compensation for loss of` `expectancy of life` `Not entitled` `0` `Total` `15,42,052` `19,15,000` `Amount enhanced = Rs.3,72,948/-(Rupees Three lakhs seventy` `two thousand nine hundred and forty eight only)`|`Sl.` `No.` `Head of Claim` `Amount awarded` `by` `the` `Tribunal(Rs.)` `Total` `amount` `after` `enhancement in` `appeal (Rs.)` `1` `Loss of earnings` `Nil` `0` `2` `Transport to hospital` `10,000` `10,000` `3` `Extra nourishment` `Not entitled` `0` `4` `Damages to clothing` `Not entitled` `0` `5` `Treatment expenses` `Not entitled` `0` `6` `Bystander’s expenses` `Not entitled` `0` `7` `Funeral expenses` `25,000` `15,000` `8` `Pain and suffering` `Not entitled` `0` `9` `Loss of dependency` `13,52,052` `(13000x2/3x12` `x13)` `17,55,000` `(15,000x3/4x12` `x13)` `(dependents` `being 4 in` `number)` `10` `Loss of estate` `5,000` `15,000` `11` `Loss of love and` `affection` `50,000` `0` `12` `Loss of consortium` `1,00,000` `1,20,000` `(40,000x3)` `13` `Compensation for loss of` `expectancy of life` `Not entitled` `0` `Total` `15,42,052` `19,15,000` `Amount enhanced = Rs.3,72,948/-(Rupees Three lakhs seventy` `two thousand nine hundred and forty eight only)`|`Sl.` `No.` `Head of Claim` `Amount awarded` `by` `the` `Tribunal(Rs.)` `Total` `amount` `after` `enhancement in` `appeal (Rs.)` `1` `Loss of earnings` `Nil` `0` `2` `Transport to hospital` `10,000` `10,000` `3` `Extra nourishment` `Not entitled` `0` `4` `Damages to clothing` `Not entitled` `0` `5` `Treatment expenses` `Not entitled` `0` `6` `Bystander’s expenses` `Not entitled` `0` `7` `Funeral expenses` `25,000` `15,000` `8` `Pain and suffering` `Not entitled` `0` `9` `Loss of dependency` `13,52,052` `(13000x2/3x12` `x13)` `17,55,000` `(15,000x3/4x12` `x13)` `(dependents` `being 4 in` `number)` `10` `Loss of estate` `5,000` `15,000` `11` `Loss of love and` `affection` `50,000` `0` `12` `Loss of consortium` `1,00,000` `1,20,000` `(40,000x3)` `13` `Compensation for loss of` `expectancy of life` `Not entitled` `0` `Total` `15,42,052` `19,15,000` `Amount enhanced = Rs.3,72,948/-(Rupees Three lakhs seventy` `two thousand nine hundred and forty eight only)`| |---|---|---|---| |`Sl.` `No.`|`Head of Claim`|`Amount awarded` `by` `the` `Tribunal(Rs.)`|`Total` `amount` `after` `enhancement in` `appeal (Rs.)`| |`1`|`Loss of earnings`|`Nil`|`0`| |`2`|`Transport to hospital`|`10,000`|`10,000`| |`3`|`Extra nourishment`|`Not entitled`|`0`| |`4`|`Damages to clothing`|`Not entitled`|`0`| |`5`|`Treatment expenses`|`Not entitled`|`0`| |`6`|`Bystander’s expenses`|`Not entitled`|`0`| |`7`|`Funeral expenses`|`25,000`|`15,000`| |`8`|`Pain and suffering`|`Not entitled`|`0`| |`9`|`Loss of dependency`|`13,52,052` `(13000x2/3x12` `x13)`|`17,55,000` `(15,000x3/4x12` `x13)` `(dependents` `being 4 in` `number)`| |`10`|`Loss of estate`|`5,000`|`15,000`| |`11`|`Loss of love and` `affection`|`50,000`|`0`| |`12`|`Loss of consortium`|`1,00,000`|`1,20,000` `(40,000x3)`| |`13`|`Compensation for loss of` `expectancy of life`|`Not entitled`|`0`| ||`Total`|`15,42,052`|`19,15,000`| ||`Amount enhanced = Rs.3,72,948/-(Rupees Three lakhs seventy` `two thousand nine hundred and forty eight only)`||| 8. `The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in` **`MACA NOs.161 & 3363 OF 2015`** 9 ``` the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 481 days in filing the appeal (MACA.3363/2015), the interest for the enhanced quantum shall not run for the said period as directed in the order dated 28.02.2022 in C.M. Appl.No.1/2020. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. ``` Sd/- ## **`C.JAYACHANDRAN JUDGE`** ``` //True copy// P.S. to Judge ``` ``` okb/ ```