New India Assurance Company Limited v. Asha P. Abraham and Others

M.A.C.A.3169/2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944** **MACA NO. 3169 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OPMV 1833/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/3rd RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LIMITED KOTTAYAM, NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS. MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** 1 ASHA.P.ABRAHAM, ELOOPARAMBIL, KOTTAYAM WEST.P.O., VELOOR, KOTTAYAM PIN-686 003. 2 MANNAH MARIUM VIPIN, AGED 12 YEARS (MINOR), ELOOPARAMBIL, KOTTAYAM WEST.P.O., PIN-686 003, REPRESENTED BY HER MOTHER 1ST RESPONDENT. 3 PONNAMMA C.K., ELOOPARAMBIL,VELOOR, KOTTAYAM WEST.P.O., VELOOR, KOTTAYAM PIN-686 003. 4 K.U. ABRAHAM, ELOOPARAMBIL, KOTTAYAM WEST.P.O., VELOOR, KOTTAYAM PIN-686 003. BY ADV SRI.NANDAGOPAL S.KURUP THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.3169/2018 2 ## **C.JAYACHANDRAN, J.** **---------------------------------------------M.A.C.A.No.3169 of 2018 --------------------------------------------Dated this the 3[rd] day of June, 2022** ## **J U D G M E N T** 1. This appeal is preferred by the Insurance Company, the third respondent before the Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V.)No.1833 of 2016. As per judgment dated 14.06.2018, a total sum of Rs.52,22,500/- has been awarded by the Tribunal, which award is sought to be assailed in this appeal as excessive and exorbitant. 2. Heard the learned counsel for the appellant/3rd respondent and the learned counsel for the respondent/claimant . 3. The first point argued by the learned counsel for the appellant is that, the monthly income reckoned by the Tribunal is very much on the higher side, that too, without any discussion with respect to the evidence adduced, both oral and documentary. As per Exts.A7(a) 3 ## M.A.C.A.3169/2018 and A7(b), income claimed was Rs.32,000/- per month. Ext.A7(b) is a certificate issued by one Vidhupal in his capacity as the proprietor of a studio, by name Studio Hut. The claimant's case is that, he was a Graphic Designer at the time of his death and he was working with two studios, namely, Studio Hut and Studio Shack. Ext.A7(a) is the certificate issued on behalf of Studio Shack. In Ext.A7(a), the average monthly income is Rs.12,000/- and as per Ext.A7(b) average monthly income is Rs.20,000/-. The proprietors of the said studios were examined as PWs.2 and 1 respectively. Although both PWs.2 and 1 reiterated the income as shown in Exts.A7(a) and A7(b), in cross examination, both would admit that, they have no record, whatsoever, to support the payment given to the deceased. PW1 would state that, he was an income tax payee. PW2 would state that he was not. No record as regards payment of income tax was forthcoming from PW.1. It has been elicited in cross examination that the deceased was working on a contract M.A.C.A.3169/2018 4 basis and that, he was paid against each work, based on availability of work. In such circumstances, this Court finds force in the submission made by the learned counsel for the appellant that the payments, which has been stated to be the commission for graphic design is not of a regular character. It was on contract basis, depending upon availability of work. No record is forthcoming as regards payment, not even a receipt. In the circumstances, this Court endorses the submission made by the learned counsel for the appellant and therefore, reduces the monthly income of the claimant to Rs.24,500/-, instead of Rs.30,000/- reckoned by the Tribunal. 4. The second ground under which the appellant assails this award is with respect to the grant of compensation under the head pain and suffering. A sum of Rs.30,000/- is granted by the Tribunal towards pain and suffering. Learned counsel seriously assails and place reliance on the judgment of the Honourable Supreme 5 ## M.A.C.A.3169/2018 Court in **United Insurance Company v. Satinder Kaur @ Satwinder Kaur and Others [2020(3) KHC 760]** , wherein, it is held that, pain and suffering is not a head liable to be recognized in cases of death, at the hands of the legal heirs of the deceased. This Court finds merit in the submission made by the learned counsel for the appellant. However, this Court also notices that, towards consortium, a sum of Rs.40,000/- alone was granted. Besides, a sum of Rs.50,000/- was granted under the head, loss on account of love and affection, which also is impermissible going by the dictum laid down in **National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT** **662 (SC)]** . As per the same decision, a sum of Rs.40,000/- each is liable to be granted towards consortium to all legal heirs. Here, the deceased is survived by his wife and one child, besides the parents. Each are entitled to consortium @Rs.40,000/-. Therefore, consortium granted by the Tribunal has to be enhanced to Rs.1,60,000/- and the sum of Rs.50,000/- ## M.A.C.A.3169/2018 **==> picture [7 x 9] intentionally omitted <==** granted under the head loss of love and affection is liable to be deducted. Similarly, the compensation of Rs.30,000/- granted on account of pain and suffering is also liable to be deducted. 5. In the result, the appeal is allowed and the award is modified as follows: |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Transport to Hospital|5000|5000| |2|Extra Nourishment|Nil|| |3|Damage to clothing and<br>articles|3000|3000| |4|Treatment & Medicine<br>Bystander expenses<br>Funeral expenses|Nil<br>2000<br>15000|2000<br>15000| |5|Compensation for pain &<br>suffering|30000|nil| |6|Compensation for loss of<br>love and affection|50000|nil| M.A.C.A.3169/2018 7 |7|Compensation for loss of<br>estate|15000|15000| |---|---|---|---| |8|Compensation for loss of<br>consortium|40000|160000(40000x4)| |9|Compensation for loss of<br>proper guidance to minor<br>daughter|nil|nil| |10|Compensation for loss of<br>income; and future<br>prospects|50,62,500<br>(22500x12x<br>15)+25%|41,34,375/-<br>(24500x25%(future<br>prospects)<br>24,500+6,125=30,625<br>30,625x12x15x3/4)| ||Total|52,22,500|43,34,375| |**Amount reduced**=Rs.52,22,500/ – Rs.43,34,375/ =**Rs.8,88,125/-**|||| 6. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of M.A.C.A.3169/2018 8 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 will be payable at the rate of 9% per annum on the amount awarded, less the amount, if any, already deposited/paid. The appeal is allowed to the above extent. **==> picture [34 x 11] intentionally omitted <==** **C.JAYACHANDRAN** **JUDGE** ``` Sbna/ ```