National Insurance Company Limited v. Rajani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944** ## **MACA NO. 3139 OF 2016** **AGAINST THE ORDER/JUDGMENTOPMV 1338/2012 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT: 2ND RESPONDENT :** **NATIONAL INSURANCE COMPANY LIMITED KOLLAM NOW REPRESENTED BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS: PETITIONERS AND 1ST RESPONDENT** - **1 RAJANI W/O.LATE SHIJI, ERATHUPARAMBIL HOUSE VAZHIKKADAVU, MANIMOOLI P.O., NILAMBUR TALUK679333.** - **2 JISHNU (MINOR) S/O.LATE SHIJI, ERATHUPARAMBIL HOUSE VAZHIKKADAVU, MANIMOOLI P.O., NILAMBUR TALUK679333.** - **3 VISMAYA (MINOR) D/O.LATE SHIJI, ERATHUPARAMBIL HOUSE VAZHIKKADAVU, MANIMOOLI P.O., NILAMBUR TALUK679333.** - **4 SANTHA W/O. LATE MANI, ERATHUPARAMBIL HOUSE VAZHIKKADAVU, MANIMOOLI P.O., NILAMBUR TALUK679333.** - **5 JOYIDAS S/O.YESUDASAN, 146 KAIPURATHEEL 8-PEOPLE NAGAR, 194 PATTATHANAM, KOLLAM PIN-691001.(MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER R1).** **BY ADV SRI.K.VIDYASAGAR** **MACA NO. 3139 OF 2016** **2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 3139 OF 2016** **3** ## **JUDGMENT** This appeal, by the National Insurance Company Limited, impugns the judgment of the Motor Accidents Claims Tribunal, Manjeri, in OP(MV)No.1338/2012, filed by respondents 1 to 4 herein. 2. To state the facts compendiously, late Shiji was riding pillion on a motor cycle, when he was hit by another one driven by the fifth respondent herein; as a result of which, he sustained injuries, leading to his unfortunate death. 3. The claimants, thereupon, filed the aforementioned Original Petition before the Tribunal, seeking compensation of Rs.8,25,000/-, which has been allowed by the Tribunal, imbibing the spirit of just and equitable compensation, to an extent of Rs.20,15,414/-. While doing so, the Tribunal has also allowed the Insurance Company to recover this amount, after paying it to the claimants, from the fifth respondent, since it was found that he did not have a valid driving licence, thus being in violation of the policy conditions. 4. The appellant impugns the Award of the Tribunal primarily on the ground that the compensation awarded under the heads “love and affection”; “loss of consortium to wife”; **MACA NO. 3139 OF 2016** **4** “funeral expenses” and “loss of estate” are excessive or incorrect. 5. As regards the compensation granted by the Tribunal under the head “loss of dependency”, the appellant asserts that it is in error because it has only deducted 1/5th towards personal expenses of the deceased, even when it is admitted that he is survived by his wife, two children and mother - thus the said component to be 1/4th. The appellant thus prays that the impugned order be set aside to such extent. 6. In response, Sri.K.Vidyasagar – learned counsel appearing for respondents 1 to 4, conceded that no amount towards “love and affection” could have been granted to his clients; but that the component of “consortium” ought to have been a minimum of Rs.1,60,000/-, instead of Rs.1,00,000/as granted. He also did not contest the contention of the appellant that the amounts granted under the heads 'funeral expenses' and 'loss of estate' are also higher than what has been permitted by the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], which limits it to Rs.15,000/- each. 7. However, Sri.K.Vidyasagar, thereafter, submitted that the compensation awarded by the Tribunal under the head **MACA NO. 3139 OF 2016** **5** 'loss of dependency' is insufficient because it has only taken Rs.8,000/- to be the notional income of the deceased; while, even in the case of a “coolie” with unascertainable income in **— —** the year 2012 when the accident happened the figure ought to have been Rs.8,500/-. He thus prayed that the compensation under the head 'loss of dependency' be enhanced appropriately. 8. In reply, Sri.Mathews Jacob, learned Senior Counsel, instructed by Smt.Preethy Nair – appearing for the appellant Insurance Company, submitted that since the claimants had only claimed Rs.8,000/- to be the income of the deceased, nothing more could have been awarded by the Tribunal and hence that the afore request of Sri.K.Vidyasagar does not merit any consideration by this Court. 9. I have evaluated the afore rival submissions and have also gone through the evidence on record - copies of which have been made available to this Court by the learned counsel for the parties across the Bar, with express consent that they can be acted upon, without dispute. 10. As I have already seen above, the Insurance Company impugns the Award of the Tribunal because it has granted Rs.3,50,000/- under the head 'Loss of Love and **MACA NO. 3139 OF 2016** **6** Affection', even after giving compensation under the head 'Loss of Dependency'. They also challenge the grant of 'Loss of Consortium' to the wife in excess of Rs.40,000/-; but concede that the other claimants are also entitled to the same figure going by **Pranay Sethi** (Supra). As far as, 'Funeral Expenses' and 'Loss of Estate' have concerned, the case of the appellant is that the amount granted thereunder by the Tribunal, namely Rs.25,000/- and Rs.1,00,000/- respectively, are also high and it goes contrary to the standardization postulated in **Pranay Sethi** (Supra), of Rs.15,000/- each. 11. That brings me to the question as to how the compensation under the head 'Loss of Dependency' should be now modulated by this Court. While the Insurance Company impugns the Award for the reason that only one fifth has been deducted from the salary of the deceased towards 'Personal Expenses', the claimants say that it ought to be revised to a higher figure because, Rs.8,500/- should have been taken as income, even though they had made only a claim for Rs.8,000/-. 12. I must say that, I find force with both rival positions because, one fourth of the income of the deceased ought to have been deducted as 'Personal Expenses'; but **MACA NO. 3139 OF 2016** **7** when it comes to fixing his notional income, I am of the firm view that the Tribunal erred in taking it as Rs.6,000/-, even though the claimants only asked for Rs.8,000/-. In fact, I am of the certain opinion that Rs.8,500/- ought to have been reckoned by the Tribunal because in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company** **Ltd. : [(2011) 13 SCC 236]** , the Hon'ble Supreme Court has fixed the said figure - for a person with unascertainable income in the year 2012. In this regard, I am guided by the judgment of the Hon'ble Supreme Court in **Anil Kumar and** **others v. N.K Ayyappa [(2013) 10 SCC 705** ; wherein, in the case of the death of the victim in an accident, the Hon'ble Court, after noticing that the amount claimed as income was much lower, ordered, in Paragraph 20 thereof, that the Tribunal was obligated to take judicial notice of the income that would be just. In this case, **Ramachandrappa** (Supra) holds the field to the extent that even a person with unascertainable income should be reckoned with the notional income of Rs.8,500/- in the year 2012; and hence, am left without any doubt that this figure is the one apposite in this case. **MACA NO. 3139 OF 2016** **8** For the afore reasons, I allow this appeal in part and modify the compensation awarded by the Tribunal in the following manner: a) The compensation awarded under the head 'Love and Affection' is deleted. b) The compensation under the head 'Loss of Consortium' is modified to Rs.1,60,000/-, reckoning Rs.40,000/- each, as per **Pranay Sethi** (Supra), to all the claimants. c) The compensation granted under the heads 'Funeral Expenses' and 'Loss of Estate' are modified as being Rs.15,000/- each respectively, in terms of **Pranay Sethi** (Supra). d) The compensation under the head 'Loss of Dependency' is revised to Rs.17,13,800/-, taking the notional income of the deceased to be Rs.8,500/- and adding to it 40% Future Prospectus and deducting one fourth as his 'Personal Expenses'. (e) The compensation granted by the Tribunal in all other heads and the interest awarded are confirmed. The total compensation to the claimants is thus modified to Rs.19,61,814/- instead of Rs.20,15,500/- presently **MACA NO. 3139 OF 2016** **9** granted by the Tribunal; which they will be entitled to recover from the Insurance Company along with interest at the rate fixed by the Tribunal from the date of claim till realisation. Needless to say, the liberty to the Insurance Company to recover the compensation paid by them to the claimants from the 5[th] respondent is left unaltered. **Sd/- DEVAN RAMACHANDRAN, JUDGE** stu/lsn