National Insurance Company Limited v. Devaki Amma and Geethakumari and Harikumaar

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.T. Sankaran
M.L. Joseph Francis
Judgment Date: 2012-12-18
Court Decision / Holding: Appeal allowed in part. The compensation payable to petitioners 2 and 3 was reduced to Rs 4,42,530, with interest at 7.5% per annum from 28.09.2004 until payment and proportionate costs. Three months’ time was granted to the appellant insurance company to deposit the amount. There is no separate order on costs in this appeal.
Final Disposition: Partially allowed; compensation reduced from Rs 4,82,930 to Rs 4,42,530 with 7.5% interest from 28.09.2004 and costs (proportionate). Three months to deposit.

Parties to the Case

Appellants / Petitioners

National Insurance Company Limited

Respondents

Devaki Amma
Geethakumari
Harikumaar

Legal Representation & Advocates

Counsels for Petitioners

• Mathews Jacob (Sr.)
• P. Jacob Mathew

Counsels for Respondents

• Gigimon Issac
• Sunitha K.S

Case Synopsis & Summary

This is an appeal under MACA No. 1077 of 2012 arising from O.P.(MV) No.1188/2004 before the Motor Accidents Claims Tribunal, Pathanamthitta. On 29 June 2004, Raman Nair, aged 70, was walking along the Pandalam–Chengannur public road when a motorcycle (KL2/H 3756) driven rashly by the rider struck him; he died from the injuries. The petitioners (devastated spouse and legal heirs) sought Rs 5,00,000 as compensation. The insurer admitted the policy but contended negligence by the deceased and claimed the amount claimed was excessive. The Tribunal held the accident due to rider’s negligence and awarded Rs 4,82,930 with 7.5% interest from 28.09.2004. On appeal, the insurer challenged the quantum, arguing that the decedent, a pensioner, and his wife’s potential family pension necessitated a higher deduction from income and that the multiplier should be 5, not 10. The respondents supported the Tribunal’s award. The High Court reassessed income (Rs 4,000 per month), adopted a multiplier of 5, and rejected deduction of family pension in calculating dependency. It revised several heads of damages, resulting in a total of Rs 4,42,530. The appeal was allowed in part; the excess already awarded was reduced, with interest at 7.5% p.a. and three months to deposit the amount, without costs order in the appeal.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant insurer argued that, as the deceased was a pensioner, the subsequent family pension would be payable to his wife, making the Tribunal’s notional income of Rs. 3,000 per month too low. It contended that the multiplier used by the Tribunal (10) was inappropriate for the deceased’s age and urged adoption of a multiplier of 5. It also urged recalculation of dependency and questioned the award under several heads.

Contentions of Respondents

The respondents supported the Tribunal’s overall award and maintained that the negligence finding was correct and the damages were properly assessed. They relied on the evidence presented and urged that the existing award should stand, with only limited adjustments as directed by the court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
N. Sivammal v. The Managing Director, Pandian Roadways Corpn.	1985 ACJ 75 (SC)	Positive	Cited to support the proposition that deduction of monetary benefit from pension (family pension) should not reduce the amount of compensation payable for dependency.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934 MACA.No. 1077 of 2012 () -----------------------OPMV.1188/2004 of MACT,PATHANAMTHITTA ## APPELLANT/SECOND RESPONDENT : ------------------------------------------------ NATIONAL INSURANCE COMPANY LIMITED KOTTARAKKARA NOW REPRESENTED BY ITS MANAGER KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD KOCHI-35. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/PETITIONERS: -------------------------------------- 1. DEVAKI AMMA W/O.LATE RAMAN NAIR, HARI VIHAR (KURAVATHARAYIL) THONNALLOOR MURI, PANDALAM VILLAGE PATHANAMTHITTA DISTRICT, PIN-689645. (DIED - DELETED) ## 2. GEETHAKUMARI D/O.LATE RAMAN NAIR, HARI VIHAR (KURAVATHARAYIL) THONNALLOOR MURI, PANDALAM VILLAGE PATHANAMTHITTA DISTRICT, PIN-689645. ## 3. HARIKUMAR S/O.LATE RAMAN NAIR, HARI VIHAR (KURAVATHARAYIL) THONNALLOOR MURI, PANDALAM VILLAGE PATHANAMTHITTA DISTRICT, PIN-689645. (RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DT. 30.11.2012) R2 AND 3 BY ADV. SRI.GIGIMON ISSAC R2 AND 3 BY ADV. SMT. SUNITHA K.S. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2012, THE COURT ON 18.12.2012 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.A.C.A. No.1077 of 2012 ----------------------------------------------Dated 18[th] December, 2012.** ## **J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the second respondent/Insurance Company in O.P.(MV) No.1188 of 2004 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. 2. The case of the petitioners in the O.P.(MV) is briefly as follows : On 29.6.2004 at about 9.30 a.m., deceased Raman Nair, aged 70 years was walking through Pandalam - Chengannur public road. When he reached Manikandan Althara Junction, Pandalam, a motorcycle bearing Registration No.KL2/H 3756 driven by the first respondent in a rash and negligent manner hit against the deceased. Due to the impact of the hit, the deceased fell down on the road and he succumbed to the injuries. The accident happened due to the rash and negligent driving of the driver of the offending vehicle. The first respondent was the owner-cum-rider of the motorcycle and the second respondent was the insurer. The petitioners claimed `5,00,000/- as compensation. The first original petitioner was the widow of the deceased. During the pendency of the 2 M.A.C.A. No.1077 of 2012 proceedings, she died and her daughter and son were impleaded as additional petitioners 2 and 3. 3. The first respondent remained ex parte. The second respondent filed written statement admitting the policy of the motorcycle and contended that the accident was due to the negligence of the deceased and that the compensation claimed is excessive. 4. Before the Claims Tribunal, no oral evidence was adduced from both sides. Exts.A1 to A8 were marked on the side of the petitioners. The Tribunal, on considering the evidence on record, found that the accident was due to the negligence of the rider of the motorcycle and awarded a compensation of `4,82,930/- to the additional petitioners 2 and 3 together with interest at the rate of 7.5% per annum from 28.9.2004 till the date of realization from the respondents and the second respondent was directed to deposit the amount as the insurer. Challenging the quantum of compensation awarded, the second respondent/Insurance Company has come up in appeal. 3 M.A.C.A. No.1077 of 2012 5. Heard the learned counsel for the appellant and the learned counsel for the contesting respondents. 6. The learned counsel for the appellant submitted that the deceased being a pensioner, his wife would be getting family pension after his death and therefore, `3,000/- per month taken as notional income of the deceased is not correct. The learned counsel for the appellant further submitted that the Tribunal went wrong in adopting '10' as the suitable multiplier and that considering the age of the deceased, the proper multiplier would be '5'. The learned counsel for respondents 2 and 3 supported the award. 7. The Tribunal awarded compensation under various heads as follows : |**_Sl_** **_No._**|**_Head of claim_**|**_Amount_** **_claimed (Rs)_**|**_Amount_** **_awarded (Rs)_**|**_Basis of vital_** **_details in a nut_** **_shell_**| |---|---|---|---|---| |1|Transport to hospital|5000|1000|| |2|Damage to clothings|1000|1000|| |3|Funeral expenses|10000|10000|| |4|Bystander's expenses|nil|4400|44 days| 4 M.A.C.A. No.1077 of 2012 |**_Sl_** **_No._**|**_Head of claim_**|**_Amount_** **_claimed (Rs)_**|**_Amount_** **_awarded (Rs)_**|**_Basis of vital_** **_details in a nut_** **_shell_**| |---|---|---|---|---| |5|Compensation for pain and suffering|25000|15000|| |6|Medical expenses|100000|191530|A8| |7|Loss of love and affection to petitioners 2 and 3||10000|| |8|Loss of estate|Nil|10000|| |9|Loss of dependency|500000|240000|| ||Total|741000 Limited to 500000|482930|| 8. At the time of argument, learned counsel appearing for respondents 2 and 3 produced a copy of the Pension Payment Order of the deceased showing that at the time of accident, the deceased was getting a monthly pension of `4,522/-. Therefore, we are of the view that `4,000/- can be taken as the monthly income of the deceased for the purpose of calculating dependency compensation instead of `3,000/- taken by the Tribunal. Considering the age of the deceased, the proper multiplier is '5' and not '10' as taken by the Tribunal. From the monthly income, 1/3 can be deducted towards M.A.C.A. No.1077 of 2012 5 personal expenses of the deceased. In the decision reported in N. Sivammal v. The Managing Director, Pandian Roadways Corpn. [1985 ACJ 75 (SC)], the Apex Court pointed out that deduction of monetary benefit of pension from the amount of compensation was without justification. Therefore, the family pension obtained by the first petitioner after the death of the deceased cannot be taken into consideration while assessing the dependency compensation. Calculating the dependency compensation, petitioners 2 and 3 are entitled to get only `1,60,000/- (4,000 x 12 x 5 x 2/3) in the place of `2,40,000/awarded by the Tribunal. The deceased died after 44 days of accident. Therefore, `25,000/- can be awarded towards compensation for pain and suffering in the place of `15,000/awarded by the Tribunal. `25,000/- can be awarded towards compensation for loss of love and affection in the place of `10,000/- awarded. Since the first petitioner died only after filing of the O.P.(MV), `10,000/- can be awarded towards compensation for loss of consortium. The compensation awarded under various other heads is just and reasonable and therefore, we 6 M.A.C.A. No.1077 of 2012 are not interfering with that portion of the award. Thus, in total, the petitioners 2 and 3 are entitled to get compensation under various heads as follows : ||**_Head of claim_**|**_Amount awarded_**| |---|---|---| |1|Transport to Hospital|2000| |2|Damage to clothing|1000| |3|Funeral expenses|10000| |4|Bystander expenses|8000| |5|Compensation for pain and suffering|25000| |6|Medical expenses|191530| |7|Compensation Loss of love and affection|25000| |8|Loss of estate|10000| |9|Loss of consortium|10000| |10|Loss of dependency|160000| ||Total|442530| |||| Thus, in total, the petitioners 2 and 3 are entitled to get `4,42,530/- only in the place of `4,82,930/- awarded by the Tribunal. Accordingly, this appeal is allowed in part and the compensation awarded is reduced to `4,42,530/- together with interest at the rate of 7.5% per annum from 28.9.2004 till the date of realization and proportionate costs in the O.P.(MV) from M.A.C.A. No.1077 of 2012 7 the appellant/Insurance Company. Three months' time is granted to the appellant to deposit the amount. There is no order as to costs in this appeal. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)