National Insurance Company Ltd. v. Jaya and Others (MACA Nos. 1584 of 2015 & 1954 of 2015)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **SATURDAY, THE 5[TH] DAY OF NOVEMBER 2022/14TH KARTHIKA, 1944 MACA NO. 1584 OF 2015** **OPMV 485/2011 OF ADDITIONAL DISTRICT SESSIONS COURT - IV, PATHANAMTHITTA & ADDL. M.A.C.T., PATHANAMTHITTA DTD.13.5.2014** ## **APPELLANT:** THE NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, NELSON COMPLEX PUTHIYADAM, P.B.NO.60, KAYAMKULAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADVS. SRI.LAL GEORGE SMT.LAKSHMI V.PARAMESWARAN ## **RESPONDENTS:** 1 JAYA, AGED 35 YEARS W/O.MANOHARAN, DOOR NO.84/54, ALAKIYAPANDIPURAM.P.O., THIRUNELVELI, TAMIL NADU. 627 001. 2 M.MUGILA AGED 11 YEARS D/O.MANOHARAN, DOOR NO.84/54, ALAKIYAPANDIPURAM.P.O., THIRUNELVELI, TAMIL NADU. 627 001. REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN JAYA. 3 M.MAHENDRAN AGED 9 YEARS S/O.MANOHARAN, DOOR NO.84/54, ALAKIYAPANDIPURAM.P.O., THIRUNELVELI, TAMIL NADU. 627 001. REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN JAYA. M..A.C.A.Nos.1584 & 1954 of 2015 ..2.. 4 ASIRVADAM *** [DELETED]** AGED 60 YEARS S/O.PICHAMUTTU, DOOR NO.84/54, ALAKIYAPANDIPURAM.P.O., THIRUNELVELI, TAMIL NADU. 627 001. 5 ANNATHAI *** [DELETED]** AGED 50 YEARS W/O.ASIRVADAM, DOOR NO.84/54, ALAKIYAPANDIPURAM.P.O., THIRUNELVELI, TAMIL NADU – 627 001. 6 ANTHONIAMMAL AGED 25 YEARS D/O.ASIRVADAM, DOOR NO.84/54, ALAKIYAPANDIPURAM.P.O., THIRUNELVELI, TAMIL NADU 627 001. 7 MAHESH S.NAIR S/O.SUNDARESAN, PALATHITTA THAZHETHETHIL, KIDANGANNOOR.P.O., ARANMULA. 689 533. 8 RENJITH R.NAIR *** [DELETED]** RENJITH BHAVAN, NALKALICKAL.P.O., ARANMULA. 689 533. *** [** RESPONDENTS 4, 5 AND 8 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 28.09.2015 IN IA 2886/15 IN M.A.C.A.1584/2015 **]** BY ADV SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2022, ALONG WITH MACA.1954/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M..A.C.A.Nos.1584 & 1954 of 2015 ..3.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN SATURDAY, THE 5[TH] DAY OF NOVEMBER 2022/14TH KARTHIKA, 1944 MACA NO. 1954 OF 2015 OPMV 485/2011 OF ADDITIONAL DISTRICT SESSIONS COURT - IV, PATHANAMTHITTA & ADDL. M.A.C.T., PATHANAMTHITTA DTD.13.5.2014** ## **APPELLANTS/PETITIONERS:** 1 JAYA W/O. LATE MANOHARAN, DOOR NO. 84/54, ALAGIYAPANDIPURAM P.O., THIRUNELVELI, TAMIL NADU STATE. 2 M.MUGILA AGED 15 YEARS D/O. LATE MANOHARAN, MINOR, DO. DO. 3 M.MAHENDRAN AGED 14 YEARS S/O. LATE MANOHARAN, MINOR, DO. DO., APPELLANTS 2 AND 3 REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER 1ST APPELLANT. 4 ASHIRVADAM S/O. PICHAMUTTU, DO. DO. 5 ANNATAI W/O. ASHIRVADAM, DO. DO. 6 ANTHONIAMMAL D/O. ASHIRVADAM, DO. DO. BY ADV SRI.A.N.SANTHOSH M..A.C.A.Nos.1584 & 1954 of 2015 ..4.. ## **RESPONDENTS/RESPONDENTS 2 & 3:** 1 RENJITH R. NAIR RENJITH BHAVAN, NALKALIKKAL P.O., ARANMULA - 689 533. 2 THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE, NELSON COMPLEX, PUTHIYIDOM, P.B NO.60, KAYAMKULAM - 690 502. BY ADV SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2022, ALONG WITH MACA.1584/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M..A.C.A.Nos.1584 & 1954 of 2015 ..5.. ## **C.JAYACHANDRAN, J.** ------------------------------------------------------M.A.C.A.Nos.1584 of 2015 & 1954 of 2015 -------------------------------------------------------Dated this the 05[th] day of November, 2022 ## **JUDGMENT** The appeal first above referred is preferred by the insurance company and the one second above referred is preferred by the claimants. The deceased, who was 42 years at the time of the accident which took place on 8.4.2011, succumbed to the injuries. While the appeal preferred by the insurance company would complain about excessiveness of the compensation granted, the appeal preferred by the claimant alleges that the compensation awarded is insufficient. 2. Heard Sri.Lal George, learned counsel for the appellant in M.A.C.A.No.1584/2015 and Sri.A.N.Santhosh, learned counsel for the appellants in M.A.C.A.No.1954/2015. Perused the records. 3. Learned counsel for the appellant pointed that the Tribunal granted a sum of Rs.3,00,000/- towards 'love and affection', besides Rs.1,00,000/- towards 'consortium', which M..A.C.A.Nos.1584 & 1954 of 2015 **==> picture [22 x 8] intentionally omitted <==** course is not permissible. As against 'pain and suffering', the Tribunal granted Rs.50,000/- which is on the higher side, according to the learned counsel. Again, towards funeral expenses Rs.25,000/- is seen granted, as against the legally entitled sum of Rs.15,000/-, going by the judgment in **National Insurance Company Limited v. Pranay Sethi** **and others** [(2017) 16 SCC 680]. It was pointed out that future prospects was reckoned by the Tribunal @ 30%, as against 25% legally permissible by virtue of the judgment in **Pranay Sethi** (supra). It was also pointed out that the 6[th] claimant was an unmarried sister of the deceased, who cannot be treated in law as a dependent, wherefore, consortium cannot be extended to her. 4. Per contra, the learned counsel for the appellants in M.A.C.A.No.1954/2015 submitted that the income claimed was Rs.18,000/- per month, as against which the Tribunal granted only Rs.6,000/- per month. Even going by the index available in **Ramchandrappa v. Manager, Royal Sundaram Aliance Insurance Company Limited** [2011 KHC 4675], the notional M..A.C.A.Nos.1584 & 1954 of 2015 **==> picture [22 x 8] intentionally omitted <==** income pertaining to the year 2011 is Rs.8,000/-. Learned counsel for the claimants would agree that the future prospects is to be reckoned at the rate of 25%. However 1/4[th] has to be deducted towards personal expenses, as against 1/3[rd] taken by the Tribunal, inasmuch as the dependents are five in number, even excluding the 6[th] claimant/unmarried sister. Learned counsel would also agree that no amount can be granted under the heads 'pain and suffering' and 'love and affection' in the case of death as held in **Kahlon** and **Pranay Sethi** respectively. However, five claimants are entitled to consortium @ Rs.40,000/-, excluding the unmarried sister. They are also entitled to 10% enhancement as provided for in the larger Bench decision in **Pranay Sethi** . As regards the 6[th] claimant/unmarried sister, learned counsel pointed out that she was a handicapped person, dependent on the deceased. Therefore, she is also entitled to receive consortium. 5. Having heard the learned counsel appearing on both sides, this Court finds merits in certain aspects in both the appeals. As rightly contended by the learned counsel for the M..A.C.A.Nos.1584 & 1954 of 2015 **==> picture [22 x 8] intentionally omitted <==** appellant in M.A.C.A.No.1584/2015, no compensation can be granted under the head 'pain and suffering' as held by the Supreme Court in **Oriental Insurance Company Limited v. Kahlon alias Jasmail Singh Kahlon (deceased) through his legal representative Narinder Kahlon Gosakan and** **another** [AIR 2021 SC 3913]. The same is the case with respect to 'love and affection', going by the judgment in **Pranay Sethi** , for, compensation on account of 'love and affection' get coalesced with compensation under the head 'consortium'. As regards consortium, even though it was opposed in considering the 6[th] claimant/unmarried sister as a dependent, this Court, in the peculiar facts of this case, is inclined to treat the said claimant as a dependent. It has been taken note of by the Tribunal that she is a handicapped person. The deceased was aged 42 years at the time of his death, which obviously mean that his parents, will be beyond the age of earning an income. It therefore follows that the 6[th] claimant/unmarried sister was a dependent of the deceased. Therefore, this Court is of the opinion that she is also entitled M..A.C.A.Nos.1584 & 1954 of 2015 **==> picture [22 x 8] intentionally omitted <==** to consortium. Accordingly, 'consortium' for six persons is reckoned at the rate of Rs.40,000/- each. They are also entitled to 10% enhancement as contemplated in the larger Bench decision in **Pranay Sethi** . As against funeral expenses Rs.25,000/- granted by the Tribunal cannot be sustained and that has to be reduced to Rs.15,000/-. Per contra, under the head 'loss of estate', compensation of Rs.5,000/- granted by the Tribunal is liable to be enhanced to Rs.15,000/-. Both will carry 10% enhancement in terms of **Pranay Sethi.** As regards 'future prospects' there is no quarrel that 25% of the income has to be reckoned as per the larger Bench decision in **Pranay Sethi.** Deduction towards personal expenses should also be 1/4[th] , since there are six dependents for the deceased. 6. Both the appeals are allowed as above. The compensation amount payable to the claimants (appellants in M.A.C.A.No.1954/2015) is re-worked as indicated in the tabular statement shown hereinbelow:- M..A.C.A.Nos.1584 & 1954 of 2015 ..10.. |Sl.No.|Head of Claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Total amount after<br>enhancement in appeal<br>(Rs.)| |---|---|---|---| |1|Loss of dependency|873600|1260000<br>(8000+25% future<br>prospects)x12x14-¼| |2|Pain and suffering|50000|Nil| |3|Funeral Expenses|25000|16500<br>(15000+10%)| |4|Transport to hospital|1000|1000| |5|Damage to Clothes|1000|1000| |6|Loss of love and<br>affection|300000|Nil| |7|Loss of Consortium|100000|264000 (44,000 x 6)| |8|Loss of estate|5000|16500<br>(15000+10%)| ||**Total**|1355600|1559000| |Amount enhanced Rs.2,03,400/- (Rupees Two lakhs three thousand four<br>hundred only)|||| The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. 7. Since there was a delay of 278 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period, as directed in order dated 5.11.2022 in C.M.Appln.No.2174/2015 in M.A.C.A.No.1954/2015. M..A.C.A.Nos.1584 & 1954 of 2015 **==> picture [28 x 8] intentionally omitted <==** 8. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within two months 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 given 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 the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. These M.A.C.As are allowed to the above extent. Sd/- ## **C.JAYACHANDRAN, JUDGE** skj