High Court of KeralaSingle JudgeAppeal allowed; quantum of compensation revised...
New India Assurance Co Ltd v. Samuel and others (MACA No. 2818 of 2016)
Case / Petition Number:MACA No. 2818 of 2016
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- The Hon. Mr. Justice Murali Purushothaman
- Judgment Date
- 2022-07-07
- Court Decision / Holding
- Appeal allowed. The High Court recalculates compensation, holding that the deceased’s income should be Rs. 15,000 per month with 40% future prospects (not 50%), uses a multiplier of 17, and deducts 1/2 of the income for personal living expenses. It further reduces losses for loss of estate to Rs. 16,500, funeral expenses to Rs. 16,500, and sets no additional award for loss of love/affection beyond the loss of consortium, resulting in a total of Rs. 22,65,000 as the payable compensation. The insurer is directed to deposit the modified amount with 9% interest and costs within two months of receipt of the judgment.
- Final Disposition
- Appeal allowed; quantum of compensation revised to Rs. 22,65,000; insurer to deposit balance within two months with interest and costs.
Parties to the Case
Appellants / Petitioners
- New India Assurance Co Ltd
Respondents
- Samuel, S/o Daniel
- Kunjumol Samuel
- Julie Shaji
- Philip Mathew (deceased)
- P.E. Easow
- Siby Mathews Philip (Addl.)
Legal Representation & Advocates
Counsels for Petitioners
- • Sri. P.G. Ganappan
Counsels for Respondents
- • Sri. John Mathew
- • Sri. Abraham Samson
- • SMT. Lovely Samson
- • Sri. Mathew John
- • Sri. Vinu Sasidharan
- • Sri. P.G. Ganappan (SC)
Case Synopsis & Summary
This is a Motor Accident Claims Appeal filed by the insurer, New India Assurance Co. Ltd., challenging the award of Rs. 26,72,500 with interest and costs by the Motor Accidents Claims Tribunal-III, Pathanamthitta, in O.P.(MV) No. 849/2009 arising from the death of Jibu Samuel on 6 June 2009 on the Adoor-Enathu road following a collision with a tipper lorry. The Tribunal held the accident occurred due to the negligence of the lorry driver and directed the insurer to satisfy the award. The insurer contends that the Tribunal erred in fixing the deceased’s notional income (Rs. 15,000 per month) and in adding 50% of the income as future prospects, arguing that the deceased was a self-employed person with no fixed UAE income; it seeks to apply the Supreme Court’s Pranay Sethi framework (40% future prospects) and to re-calculate compensation, including losses for estate, funeral expenses, and loss of love/affection, while challenging reliance on foreign emoluments. The respondents-supporting heirs contend the Tribunal’s factual conclusions and statutory standards were appropriate but rely on precedents to justify the income and heads of damages. The High Court revises the quantum accordingly, basing its approach on Indian standards and leading cases.
Legal Doctrines & Maxims
- 40% future prospects (Pranay Sethi)
- Indian standards for income in foreign employment context (Valsamma v. Binu Jose)
- No double counting for loss of consortium and loss of love/affection (Satinder Kaur)
- Multiplier method (age-based multiplier)
- Deduction of personal/living expenses (½ deduction)
Submissions & Arguments
Contentions of Appellants / Petitioners
The insurer contends that the Tribunal erred in fixing the notional income at Rs. 15,000 per month for the deceased, who was allegedly self-employed in the UAE, and in adding 50% as future prospects. Relying on Valsamma v. Binu Jose (2014 (1) KLT 10) and Divya (2021), the appellant argues only Indian standards should apply and that future prospects should be restricted to 40% as per Pranay Sethi (2017) (16 SCC 680). It further seeks recomputation of loss of dependency using Rs. 21,000 as notional income (40% of future prospects) with multiplier 17 and 1/2 for personal living expenses, leading to a reduced figure (Rs. 21,42,000). The heads for loss of estate, funeral expenses, and loss of love/affection should likewise be recalibrated to Rs. 16,500, Rs. 16,500, and Rs. 0 (or adjusted) respectively, and loss of consortium at Rs. 88,000 total should be preserved to reflect the ratio in Pranay Sethi and Jayasree N.
Contentions of Respondents
The respondents argue for upholding the Tribunal’s quantum and the factual finding of death due to negligence. They rely on Ext. A4 salary and the deceased’s UAE employment claims, contending that the Tribunal’s approach was reasonable and that the appellants should bear the liability under the policy. They contend the award covers losses for the family’s dependents, including loss of love and affection, and argue the maintenance of the Tribunal’s head for loss of consortium as a valid component of the compensation.
Cited Precedents (5)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Valsamma v. Binu Jose | 2014 (1) KLT 10 | Positive | Used to justify applying Indian standards for determining income in cases involving foreign employment and non-permanent work arrangements. |
| New India Assurance Co. Ltd. v. Divya | 2021 (6) KLT 109 | Positive | Cited for fixing monthly income based on Indian standards when foreign employment evidence is not conclusive. |
| National Insurance Company Limited v. Pranay Sethi and others | (2017) 16 SCC 680 | Positive | Established that future prospects can be added up to 40% of income for non-permanent employment, guiding the Court’s calculation. |
| Jayasree N. and others v. Cholamandalam MS General Insurance Company Ltd | 2021 (6) KHC 163 | Positive | Applied Pranay Sethi ratio to award loss of consortium and related heads; used as supportive precedent. |
| United India Insurance Co. Ltd. v. Satinder Kaur | AIR 2020 SC 3076 | Positive | Held there is no justification for maintaining a separate head for loss of love and affection when loss of consortium is awarded; used to limit damages. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN**
**THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 MACA NO. 2818 OF 2016**
**AGAINST THE AWARD DATED 22.04.2016 IN OPMV 849/2009 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA**
## **APPELLANT/3RD RESPONDENT:**
**THE NEW INDIA ASSURANCE CO LTD THE DIVISIONAL MANAGER, BEACH ROAD,KOLLAM, REPRESENTED BY ITS MANAGER,REGIONAL OFFICE, ERNAKULAM.**
**BY ADV SRI.P.G.GANAPPAN**
## **RESPONDENT/CLAIMANTS AND RESPONDENTS 1 & 2:**
- **1 SAMUEL, S/O.DANIEL, JIBU BHAVAN, KADIKA,KAITHAPARAMBU.P.O., ENATHU VILLAGE,ADOOR TALUK.689 645.**
- **2 KUNJUMOL SAMUEL W/O.SAMUEL, DO.... DO.....**
- **3 JULIE SHAJI W/O.SHAJI, DO..... DO.......**
- **4 PHILIP MATHEW (DIED) S/O.T.V.MATHEW, KOLATHU VEEDU,NARIKKUZHY, KUMARAMPEROOR THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK.689 672.**
- **5 P.E.EASOW, S/O.EASOW, PALACKAMANNIL HOUSE,KOTTANADU.P.O., MALLAPPALLY.689 584.**
- ***ADDL.6 SIBY MATHEWS PHILIP, S/O PHILIP MATHEW KOLATHU VEEDU, NARIKUZHY, KUMPALAMPOIKA PO SOUTHERN SIDE OF PATHANAMTHITTA SEETHATHODU ROAD, MOB 9947053462 (*ADDL.R6 IS IMPLEADED AS PER ORDER DATED 06.10.2017 IN I.A.NO.3547/17 IN MAMCA 2818/16)**
**BY ADVS. SRI.JOHN MATHEW SRI.ABRAHAM SAMSON**
**MACA NO. 2818 OF 2016 ..2..**
**SMT.LOVELY SAMSON SRI.MATHEW JOHN JMA SRI.VINU SASIDHARAN SRI.P.G.GANAPPAN, SC**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA NO. 2818 OF 2016 ..3..**
## **JUDGMENT**
The appellant is the 3[rd] respondent in O.P.(MV) No.849/2009 on the files of the Additional Motor Accident Claims Tribunal-III, Pathanamthitta. The parties are referred to as per their status in the claim petition unless otherwise specifically mentioned.
2. The petitioners are the legal heirs of deceased Jibu Samuel, who died in a motor vehicle accident on 06.06.2009 at Adoor-Enathu road. According to them, while Jibu was riding a motorcycle, a tipper lorry bearing registration No.KL-03-H-2702 driven by the 1[st] respondent and owned by the 2[nd] respondent hit the motorcycle and the deceased sustained serious injuries and succumbed to the injuries on the same day. The petitioners claimed an amount of Rs.25,00,000/- as compensation for the death of the deceased. According to the petitioners, the accident happened due to negligence on the part of the 1[st] respondent.
**MACA NO. 2818 OF 2016 ..4..**
3. Before the Tribunal, respondents 1 and 2 remained _ex parte._ On the side of the petitioners, Exts. A1 to A25 were marked and PW1 to PW3 were examined. No evidence was adduced on the side of the respondents. The 3[rd] respondent, the insurer of the tipper lorry filed a written statement admitting that the lorry was having a valid insurance policy at the time of the accident, but disputing their liability on the ground that there was violation of conditions of policy. It was also contended that the deceased and two persons were traveling on the motorcycle at the time of the accident and that the deceased has contributed to the accident. It was further contended that the amount claimed by the petitioners is excessive and exorbitant.
4. The Tribunal found that the accident happened due to the negligence of the driver of the Tipper lorry and awarded an amount of Rs.26,72,500/- as total compensation to the petitioners with 9% interest per
**MACA NO. 2818 OF 2016 ..5..**
annum from the date of petition till realisation and proportionate costs. The 3[rd] respondent was directed to satisfy the award. The compensation awarded by the Tribunal under different heads is as follows:
|**Sl.**<br>**No**|**.**<br>**Head of claim**|**Amount claim**<br>**(in rupees)**|**Amount**<br>**awarded**<br>**(in rupees)**|
|---|---|---|---|
|1.|Loss of dependency|39,00,000|22,95,000|
|2.|Loss of estate||50,000|
|3.|Transport to hosptial|2,000|2,500|
|4.|Damage to clothes|2000||
|5.|Others|3,82,000||
|6.|Medical expenditure|||
|7.|Funeral expense|50,000|25,000|
|8.|Pain and sufering|5,00,000|Nil|
|9.|Loss of love, afection<br>and old age support|2,00,000|3,00,000|
|10|Extra nourishment|||
||Total|47,06,000<br>limited<br>to<br>Rs.25,00,000)|26,72,500|
**MACA NO. 2818 OF 2016 ..6..**
5. Aggrieved by the quantum of compensation awarded, the insurer has come up in appeal. It is contended by the appellant that the notional income of the deceased arrived at by the Tribunal is excessive and the Tribunal went wrong in adding 50% of the income towards future prospects. According to the appellant, since the deceased was a self-employed person without any fixed income, only 40% can be awarded towards future prospects. The appellant has also challenged the compensation awarded under the heads loss of estate, funeral expenses and loss of love and affection.
6. Heard the learned counsel for the appellant and
the learned counsel for the respondents.
7. According to the petitioners, the deceased was an electrician in Dubai and was drawing 1170 Dirhams per month at the time of his death. Ext.A4 salary certificate of the deceased was not accepted by the
**MACA NO. 2818 OF 2016 ..7..**
Tribunal and the Tribunal found that there is no acceptable evidence that he was employed in any permanent post in UAE. Accordingly, the Tribunal fixed the notional income of the deceased as Rs.15,000/- per month, which he would have received in India in 2009. This Court, in **Valsamma** _**v**_ **. Binu Jose** (2014 (1) KLT 10), has held that the standards to be applied while assessing the income of a person who is not permanently employed in a foreign country would be in the context of Indian standards. In **New India Assurance Company Ltd.** _**v**_ **. Divya** [2021 (6) KLT 109], this Court on the basis of the ratio in **Valsamma** (supra) fixed the monthly income of a Mason during 2014 as Rs.25,000/-. Going by the said standards, I am not inclined to interfere with the income fixed by the Tribunal and I take the monthly income of the deceased as Rs.15,000/- for the purpose of computation of compensation.
**MACA NO. 2818 OF 2016 ..8..**
8.The Tribunal added 50% of the said income towards future prospects. The Tribunal went wrong in adding 50% of the income towards future prospects as the Tribunal found that there is no acceptable evidence that the deceased was employed in any permanent post in UAE. As per the decision of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others** [(2017) 16 SCC 680], only 40% can be added towards future prospects. By adding 40% of the income towards future prospects, the income of the deceased would come to Rs.21,000/- [15,000+6,000]. Since the deceased was aged 27 years at the time of accident, the multiplier to be adopted is '17'. The deceased was a bachelor and ½ of his monthly income has to be deducted towards personal and living expenses. Therefore, the compensation for loss of dependency is re-worked as Rs.21,42,000/- [21,000×12 x 17 x ½]. Since the Tribunal has awarded an amount of
**MACA NO. 2818 OF 2016 ..9..**
Rs.22,95,000/- under the head compensation for 'loss of dependency', the excess amount of **Rs.1,53,000/-** [22,95,000-21,42,000] has to be deducted from the said head.
9. No amount has been awarded by the Tribunal under the head loss of consortium. However, an amount of Rs.3,00,000/- has been awarded towards loss of love, affection and old age support. Following the ratio in **Pranay Sethi** (supra) followed in **Jayasree N. and others** _**v**_ **. Cholamandalam MS General Insurance Company Ltd** [2021 (6) KHC 163], the petitioners 1 and 2 are entitled to Rs.44,000/- [40,000 + 10% hike for three years] each for loss of consortium. Accordingly, for loss of consortium, they are entitled for **Rs.88,000/-** (44,000×2). The Hon'ble Supreme Court has held in **United India Insurance Co.Ltd.** _**v.**_ **Satinder Kaur [AIR 2020 SC 3076]** that, when compensation is awarded under the head loss of
**MACA NO. 2818 OF 2016 ..10..**
consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Since the petitioners 1 and 2 are entitled for Rs.88,000/- towards loss of consortium, no further amount is to be awarded under the head loss of love and affection. Therefore, **Rs.3,00,000/-** already awarded under the head loss of love, affection and old age support has to be deducted from the total compensation.
10. Towards loss of estate, the Tribunal has awarded an amount of Rs.50,000/-. Going by the decisions in _**Pranay Sethi** and_ _**Jayasree**_ (supra), the petitioners are entitled only for an amount of Rs.16,500/- [15,000+10% hike for three years] under the head loss of estate. Therefore, the excess amount of **Rs.33,500/-** [50,000-16,500] has to be deducted from the total compensation.
**MACA NO. 2818 OF 2016 ..11..**
11. Towards funeral expenses, the Tribunal has awarded an amount of Rs.25,000/-. In the light of the decisions in _**Pranay Sethi** and_ _**Jayasree**_ (supra), the petitioners are entitled to get only an amount of Rs.16,500/- [15,000+10% hike for three years] under the head compensation for funeral expenses. Therefore, an amount of **Rs.8,500/-** has to be deducted under the said head.
In the result, the appeal is allowed as above holding that the petitioners are entitled only for an amount of **Rs.22,65,000/-** (Rupees twenty two lakhs and sixty five thousand only) [26,72,5004,07,000(1,53,000+33,500+ 8,500+2,12,000) as total compensation. It is submitted by the learned counsel for the appellant that, pursuant to the order dated 08.09.2016 of this Court, the appellant had deposited 50% of the award amount before the Tribunal. The appellant insurance company shall deposit the balance
**MACA NO. 2818 OF 2016 ..12..**
amount as modified by this Court with 9% interest and costs before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment.
Sd/-
**MURALI PURUSHOTHAMAN JUDGE**
SB/07/07/2022