National Insurance Company Limited v. Ramla K. & Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` # `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 ``` ``` MACA NO. 787 OF 2016 ``` ``` AGAINST THE AWARD IN OPMV 628/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI ``` ## `APPELLANT:` ``` M/S.NATIONAL INSURANCE COMPANY LIMITED DIV NO.10, FLAT NO.101-106, NI BMC HOUSE, CONUAGHT PLACE, NEW DELHI = 110001, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CLAIM SECTION, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV SRI.LAL GEORGE ``` ## `RESPONDENT/:` ``` 1RAMLA K. AGED 45 YEARS W/O.LATE MOHAMMED, PALLITHODI HOUSE, KONNOMPARA, MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. 2P.HAFSATH AGED 26 YEARS, W/O.AHAMMED JUNAR, KOTTEKKODAN (H), PANAKKAD AMSOM DESOM, VALIYANGADI, DOWN HILL P.O., ERNAD TALUK, MALAPPURAM DIST - 676 519. 3P.HAMZA AGED 25 YEARS S/O.LATE MOHAMMED, PALLITHODI HOUSE, KONNOMPARA, MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. 4P.KHAIRUNISSA AGED 22 YEARS, D/O.LATE MOHAMMED, PALLITHODI HOUSE, KONNOMPARA, MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. 5P.ABDUL HAMMED AGED 21 YEARS S/O. LATE MOHAMMED, PALLITHODI HOUSE, KONNOMPARA, MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. ``` ``` MACA NO. 787 OF 2016 ``` ``` 2 ``` ``` 6FATHIMA THASNI 14 YEARS(MINOR), D/O.LATE MOHAMMED, REPRESENTED BY MOTHER AND NATURAL GUARDIAN, RAMLA .K., PALLITHODI HOUSE, KONNOMPARA, MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. 7MUHAMMED SABITH 12 YEARS (MINOR), S/O.LATE MOHAMMED, REPRESENTED BY MOTHER AND NATURAL GUARDIAN, RAMLA .K., PALLITHODI HOUSE, KONNOMPARA, MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. 8YASUF P.P. S/O.KUNJI MOIDEEN, POTTENPULAN (H), MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. 9BASHEER P.P S/O.KUNJI MOIDEEN, POTTENPULAN (H), MELMURI AMSOM DESOM, ERNAD TALUK, MELMURI PO, MALAPPURAM DISTRICT, PIN 676 517. BY ADVS. SMT.KAVERY S THAMPI SRI.K.M.SATHYANATHA MENON ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 787 OF 2016 ``` ``` 3 ``` ## `JUDGMENT` ``` This appeal, filed by the National Insurance Company Ltd., impugns the Award in OP(MV) No. 628 of 2012 of the Motor Accidents Claims Tribunal, Manjeri ('Tribunal' for short), solely on the ground that the compensation granted in favour of ``` ``` the appellants, who are the legal heirs of Mohammed - who was killed in an unfortunate road accident, which occurred on 15.02.2012 - is on the higher side. ``` ``` 2.Sri.Sebastian Varghese – learned counsel ``` ``` appearing for the appellants, argued that the notional income adopted by the Tribunal in ``` ``` favour of the deceased was excessive because, going byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. : [(2011) 13 SCC 236],only an amount of ``` ``` MACA NO. 787 OF 2016 ``` ``` 4 ``` ``` Rs.8,500/- could have been taken; while the compensation under the head 'Loss of Love and Affection', of an amount of Rs.1,00,000/-, was in error. He then pointed out that the compensation under the head 'Funeral Expenses' granted by the Tribunal is higher than what could have been granted; while in the case compensation for 'Loss of Dependency', the Tribunal had added 'Future Prospects' of 15% though, the income of the deceased, going by Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802]only 10% could have been added. He thus prayed that the Award of the Tribunal to the extent assailed, be set aside. ``` ``` 3.In response, Sri.Sathyanatha Menon – ``` ``` learned counsel for the claimants, argued that the Tribunal has committed no error and has awarded just and fair compensation; but added ``` ``` MACA NO. 787 OF 2016 ``` ``` 5 ``` ``` that, in fact, the amount of consortium granted was unfair because each of them was entitled to ``` ``` Rs.40,000/-, thus to a total sum of Rs.2,80,000/-. He thus prayed that the compensation awarded by the Tribunal be so ``` ``` enhanced. ``` ``` 4.When I consider and evaluate the afore ``` ``` rival submissions, it becomes evident that the main controversies between the parties are with respect to the notional income of the deceased and the compensation awarded under the head 'Loss of Consortium'. ``` ``` 5.As regards the notional income, the ``` ``` learned Tribunal has gone by the evidence on record, to hold that the deceased was running a Wood Industry on his own and engaged in the ``` ``` manufacturing and retail sale of furniture. Even though the appellants say that this is not borne ``` ``` MACA NO. 787 OF 2016 ``` ## `6` ``` out by the evidence, the fact remains that Mohammed was aged 52 years at the time of his death and was hale and happy; while the witnesses to the Inquest Report, preferred consequent to the accident, clearly testified that he was doing business in Wood Industry. ``` ``` 6.That said, as per the standardization of ``` ``` notional income, postulated by the Honourable Supreme Court in Ramachandrappa (Supra), in the case of person with unascertainable income in the year 2012, a minimum of Rs.8,500/- ought to have been taken. ``` ``` 7.However, in this case, there is ``` ``` sufficient evidence to show that the deceased was a business man, running his own wood furniture manufacturing Unit. I, therefore, cannot find any mistake in the stand of the Tribunal in having adopted Rs.10,000/- as his notional income, which ``` ``` MACA NO. 787 OF 2016 ``` ``` 7 ``` ``` itself is not very high, going by the standards available even in the year 2012. ``` ``` 8.However, as regards the future prospects to be added to the income, certainly, the ``` ``` appellants are right in saying that only 10% could have been added, as perSarla Verma (supra); and I notice that the Tribunal has taken it as 15%. ``` ``` 9.Coming to the heads of “Loss of Estate” and “Funeral Expenses”, the Tribunal has erred in both of them because, as per National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662], only Rs.15,000/- each could have been awarded. However, in this case, the Tribunal has awarded Rs,10,000/- towards “Loss of Estate”; while in the case of “Funeral Expenses”, it has granted Rs.25,000/-. Both these certainly will have to be modified. ``` ``` MACA NO. 787 OF 2016 ``` ``` 8 ``` ``` 10.On the question of compensation for “Loss of Consortium”, there can be no doubt that every dependent of the deceased is entitled to it. For some reason, the Tribunal has awarded a consolidated sum of Rs.1,00,000/-, but without noticing that, at least, respondent Nos.1 and 3 to 7 were admittedly dependent on the deceased; though at the time when the Award was issued, it appears that 2[nd] among them had been married. However, no material is forthcoming to establish whether she was married at the time of the death of her father – Mohammed, which was in the year 2012; and as the evidence on record would ``` ``` indicate, the appellant neither produced any ``` ``` document in substantiation, nor led any oral evidence. I, therefore, am of the firm view that, ``` ``` in the absence of any evidence to show that 2[nd] claimant had been married at the time of the ``` ``` MACA NO. 787 OF 2016 ``` ``` 9 ``` ``` death of her father, she is also entitled to consortium. ``` ``` 11.That being said, the Award of ``` ``` Rs.1,00,000/- towards “Love and Affection” by the ``` ``` Tribunal, in addition to the compensation for “Loss of Dependency”, is in error, going by the judgment in United India Insurance Company Ltd. ``` ``` v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780]. ``` ``` Resultantly, this appeal is allowed and the ``` ``` compensation awarded by the Tribunal is modified in the following manner: ``` ``` a)The amounts under the head “Loss of ``` ``` Dependency” is revised to Rs.11,61,600/-, taking ``` ``` the notional income of the deceased to be Rs.10,000/-, with 10% future prospects added to it and 1/5 of it deducted towards his personal expenses. ``` ``` MACA NO. 787 OF 2016 ``` ## `10` ``` b)The sum under the head “Loss of Estate” is enhanced to Rs.15,000/-, instead of ``` ``` Rs.10,000/-, as awarded by the Tribunal. ``` ``` c)The compensation under the head “Funeral Expenses” is reduced to Rs.15,000/-, from Rs.25,000/- now granted. ``` ``` d)The compensation under the head “Loss of Consortium” is enhanced to Rs.2,80,000/-, at the rate of Rs.40,000/- each to the claimants. ``` ``` In all other heads, the compensation awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellants would be ``` ``` entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% (modifying the rate of interest of 9% given by ``` ``` MACA NO. 787 OF 2016 ``` ``` 11 ``` ``` the Tribunal), from the date of filing of the claim until it is realised. ``` ``` The appellants will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` lsn/SAS ```