New India Assurance Company Limited v. Bincy and Others (MACA Nos.238/2014 & 1026/2015), High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942** **MACA.No.238 OF 2014** **AGAINST THE AWARD IN OP(MV) 552/2011 DATED 13.09.2013 IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM** ## **APPELLANT/3rd RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED, CALICUT, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** |**1**|**BINCY,**| |---|---| ||**W/O.LATE SYRIL JACOB,**| ||**KAITHAMATTAOM,**| ||**VANIAYMKULAM,**| ||**OTTAPALAM, PIN-678 320.**| |**2**|**ANN MARIYA SYRIL (MINOR),**| ||**D/O.LATE SYRIL JACOB,**| ||**KAITHAMATTAOM,**| ||**VANIAYMKULAM,**| ||**OTTAPPALAM, PIN-678 320.**| |**3**|**ANEENA SYRIL (MINOR),**| ||**D/O.LATE SYRIL JACOB,**| ||**KAITHAMATTAOM,**| ||**VANIAYMKULAM,**| ||**OTTAPALAM, PIN-678 320.**| |**4**|**JACOB,**| ||**S/O.KURIAN,**| ||**KAITHAMATTAOM,**| ||**VANIAYMKULAM,**| ||**OTTAPALAM, PIN-678 320**| **MACA.Nos.238/2014 & 1026/2015** **:2:** **5 ANNKUTTY @ ANNAMMA, W/O.JACOB, KAITHAMATTOM, VANIAYMKULAM, OTTAPPALAM, PIN-678 320** **BY ADV. SRI.BABY MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2020, ALONG WITH MACA.1026/2015(A), THE COURT ON 09-062020 DELIVERED THE FOLLOWING:** **MACA.Nos.238/2014 & 1026/2015** **:3:** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942** **MACA.No.1026 OF 2015** **AGAINST THE AWARD IN OP(MV) 552/2011 DATED 13-09-2013 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM** ## **APPELLANTS/PETITIONERS:** |**1**|**BINCY,**| |---|---| ||**AGED 38 YEARS,**| ||**W/O.LATE SYRIL JACOB.**| |**2**|**ANN MARIYA SYRIL.,**| ||**D/O.LATE SYRIL JACOB,**| ||**AGED 10 YEARS,**| ||**(MINOR REPRESENTED BY MOTHER BINCY).**| |**3**|**ANEENA SYRIL,**| ||**D/O.LATE SYRIL JACOB,**| ||**AGED 8 YEARS,**| ||**(MINOR REPRESENTED BY MOTHER BINCY).**| |**4**|**JACOB,**| ||**S/O.KURIYAN,**| ||**AGED 74 YEARS,**| ||**FATHER OF THE DECEASED**| |**5**|**ANNKUTTY @ ANNAMMA,**| ||**W/O.JACOB,**| ||**AGED 69 YEARS,**| ||**MOTHER OF THE DECEASED**| ||**ALL ARE RESIDING AT KAITHAMATTAM,**| ||**VANIAMKULAM,**| ||**OTTAPALAM,**| ||**PALAKKAD DISTRICT.**| ||**BY ADV. SRI.BABY MATHEW**| **MACA.Nos.238/2014 & 1026/2015** **:4:** ## **RESPONDENT/RESPONDENT/3rd RESPONDENT:** **NEW INDIA ASSURANCE COMPANY LTD., CITY BRANCH, DOOR NO.5/86-1, 2ND FLOOR, FLAIR MONT BUILDING, ERANCHIPALAM, WAYANAD ROAD, CALICUT - 673 006 (POLICY NO.7606033110200017185).** **R1 BY ADV. SRI.A.A.ZIYAD RAHMAN R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2020, ALONG WITH MACA.238/2014, THE COURT ON 09-06-2020 DELIVERED THE FOLLOWING:** **MACA.Nos.238/2014 & 1026/2015** **==> picture [23 x 9] intentionally omitted <==** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 9[th] day of June, 2020**_ [M.A.C.A. Nos.238/2014 & 1026/2015] Aggrieved by the Award in OP(MV) No.552/2011 of the Motor Accidents Claims Tribunal, Ottapalam, the petitioners as well as the insurer therein are in appeal. 2. The deceased Syril was driving on the pillion seat of a motorcycle on 12.03.2011. He was going from Kulappully to Koonathara. When he reached Kulappully, a Scorpio car driven by the 1[st] respondent in the OP(MV) in a rash and negligent manner dashed on the rear side of the bike. The deceased Syril sustained serious injuries. He was taken first to Seventh Day Hospital, Ottappalam and was referred to Jubilee Mission Hospital, Thrissur. The victim of the accident died on the same day. The appellants in MACA No.1026/2015 filed the OP(MV) **MACA.Nos.238/2014 & 1026/2015** **==> picture [23 x 9] intentionally omitted <==** before the Tribunal seeking a compensation of ₹10 lakhs under various heads. 3. The 1[st] respondent in the OP(MV), who was the driver of the Scorpio car, filed a written statement denying his negligence. The 1[st] respondent claimed coverage of insurance from the 3[rd] respondent (appellant in MACA No.238/2014). The 2[nd] respondent-owner of the car remained _ex parte_ . The 3[rd] respondent-insurer filed written statement denying the negligence of the driver of the car. The insurer contended that the accident was solely due to the negligent driving of the bike on which the victim was a pillion rider. 4. The petitioners in the OP(MV) examined PW1 and produced Exts.A1 to A10 documents. The 1[st] respondentDriver in OP(MV) produced Exts.B1 to B4 documents. The Tribunal, on appreciation of evidence on record, granted a compensation of ₹8,97,700/- under various heads, as given below:- **MACA.Nos.238/2014 & 1026/2015** **:7:** |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed (Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vital details**<br>**in a nut shell**| |---|---|---|---|---| |1|Loss of earning (Total)|-|-|| |2|Loss of earning (Partial)|-|-|| |3|Medical<br>&<br>miscellaneous<br>expenses|10,000|1,000|As per Ext.A9<br>series medical bills<br>₹987/- rounded to<br>₹1,000/-| |4|Future treatment|-|-|| |5|Bystander expenses|-|500|| |6|Transportation<br>expenses/ambulance charge|10,000|5,000|| |7|Extra nourishment|-|-|| |8|Damage to clothing etc.|1,000|1,000|| |9|Pain and suffering|10,000|10,000|| |10|Loss of dependency|8,68,000|6,55,200|(4000 x 12 + 30%<br>x 3/4 x 14)| |11|Loss of consortium|50,000|1,00,000|| |12|Loss of love and affection|50,000|1,00,000|₹30,000/- each to<br>P2<br>and<br>P3.<br>₹20,000/- each to<br>P4 and P5.| |13|Loss of estate /compensation for<br>mental shock and agony|2,000|Nil|Not proved| |14|Loss /reduction in earning<br>capacity|-|-|| |15|Loss<br>of<br>amenities<br>&<br>conveniences etc.|-|-|| |16|Funeral expenses|5,000|25,000|Not proved| ||**Total**|10,06,000|**8,97,700**|| ||Limited to|10,00,000||| Interest at the rate of 9% per annum from the date of OP(MV) was also awarded. The 3[rd] respondent-insurer was directed to pay the compensation initially. It is aggrieved by the said Award dated 13.09.2013 in OP(MV) No.552/2011, the **MACA.Nos.238/2014 & 1026/2015** ## **:8:** petitioners and the 3[rd] respondent-insurer in the OP(MV) have approached this Court, filing MACA No.1026/2015 and MACA No.238/2014 respectively. The appellants in MACA No.1026/2015 are referred to as “the petitioners” and the appellant in MACA No.238/2014 is referred to as “the insurer” hereinafter, for convenience. 5. The learned Standing Counsel for the insurer argued that the deceased was a Salesman in a shop. The Tribunal, while fixing the notional income of the deceased, enhanced the wages by 30% towards future prospects, whereas going by the guidelines given by the Apex Court and this Court, the enhancement should have been limited to 25%. 6. The Tribunal granted an exorbitant amount of ₹1 lakh towards loss of consortium, whereas the standardised compensation that can be granted under the head is only ₹40,000/-. The award of ₹1 lakh towards love and affection allowed by the Tribunal is also highly excessive. While the petitioners were eligible only to get ₹15,000 towards funeral **MACA.Nos.238/2014 & 1026/2015** **==> picture [23 x 9] intentionally omitted <==** expenses, the Tribunal granted an excessive amount of ₹25,000/-. The amount of compensation is therefore liable to be revised and reduced, contended the learned Standing Counsel for the insurer. The Standing Counsel submitted that in the event of this Court enhancing the compensation amount, in the appeal filed by the petitioners, the insurer may not be burdened with the interest part of the compensation for the period of delay caused by the petitioners in filing their appeal. 7. The petitioners controverted the contentions of the Standing Counsel for the insurer and argued that though the deceased was working as a Salesman, his employment was of a permanent nature and the deceased was under salaried class. Therefore, there is nothing wrong in the Tribunal awarding 30% enhancement in notional monthly income, for the purpose of computing compensation. The counsel for the petitioners further submitted that though the standardised compensation for loss of consortium is ₹40,000/-, in the case on hand, the wife is entitled to spousal consortium, the parents **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** are entitled to parental consortium and the children are entitled filial consortium. The amount of ₹1 lakh awarded by the Tribunal is therefore on a lower side. The learned counsel for the petitioners pointed out that the Tribunal has not granted any compensation towards loss of estate, though the petitioners were entitled to such compensation. The victim died six hours after the accident. The deceased as well as the petitioners had to suffer immense physical and mental pain and had to undergo trauma for six long hours prior to the death of the deceased and even thereafter due to the death. ₹10,000/- awarded towards pain and suffering is therefore too meager. The learned counsel for the petitioners further argued that though the monthly income of the deceased was ₹9,000/-, which was proved by the deposition of PW1 wife, the Tribunal assessed monthly income of the deceased at a very low amount of ₹4,000/-. In the appeal proceedings, the petitioners have produced Annexure-1 salary certificate evidencing that the salary of the deceased is ₹9,000/-. therefore, the compensation awarded to the petitioners is not liable to be **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** reduced and should be suitably enhanced. 8. I have heard the learned counsel for the appellant -insurer in MACA No.238/2014 as well as the appellantspetitioners in MACA No.1026/2015. 9. The Standing Counsel for the insurer argued that the petitioners were made available compensation giving an enhancement of 30% of income of the deceased towards future prospects and the deceased being a self-employed person and being 41 years of age, enhancement in future prospects should have been limited to 25%. The evidence on record would show that the deceased was a Salesman in an establishment named Prakash Steels and Cements, Kulappully. The petitioners had claimed that he has a monthly income of ₹9,000/-. Though the petitioners did not produce any salary certificate evidencing employment and income of the deceased, in this appeal the petitioners have produced Annexure-1 certificate from Prakash Steels and Cements, which would show that the deceased was a permanent employee of the establishment and was working **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** as Salesman cum loading and unloading worker since 17.09.2009. The deceased being a permanent employee of an establishment, this Court is of the view that there is no error on the part of the Tribunal in giving 30% enhancement in income towards future prospects to calculate notional income for granting compensation. 10. The Standing Counsel for the insurer further argued that the Tribunal granted ₹1 lakh towards loss of consortium and another ₹1 lakh towards love and affection. Both these amounts are excessive and go against the law laid down in _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680],_ contended the Standing Counsel. In the case on hand, it is to be noted that the 1[st] petitioner-wife, petitioners 2 and 3, who are minor children, the 4[th] respondentfather and 5[th] respondent-mother were dependent on the deceased. In _**Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and others** [(2018) 18 SCC 130]_ , after referring to the decision in _**Pranay Sethi**_ (supra), the Apex **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** Court held that the surviving wife of the deceased in an accident is entitled to compensation for consortium since the wife will lose “company, society, co-operation, affection and aid of the spouse in every conjugal relation”. Children are granted parental consortium upon the premature death of a parent, for loss of “parental aid, protection, society, discipline, guidance and training”. The Apex Court also held that filial consortium is the right of the parent to compensation in the case of an accidental death of a child. In _**Magma General Insurance Co. Ltd.**_ (supra), the Apex Court awarded the father and sister of the deceased an amount of ₹40,000/- each for loss of consortium. In view of the law laid down by the Apex Court, I do not find any illegality in the Tribunal awarding ₹1 lakh towards loss of consortium and ₹1 lakh towards loss of love and affection. 11. However, there is force in the contention of the Standing Counsel for the insurer that the compensation for funeral expenses of ₹25,000/- awarded by the Tribunal is **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** excessive. In view of the standardised rates prescribed by the judgments of the Apex Court and of this Court, compensation towards funeral expenses has to be limited to ₹15,000/-. 12. The learned counsel for the petitioners pointed out that in spite of the claim made by the petitioners that the monthly income of the deceased was ₹9,000/-, the Tribunal fixed the amount of monthly income as ₹4,000/-, which is on a lower side. It has to be noted that as per the guidelines prescribed by the Apex Court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , the notional monthly income of even a daily wage worker/self-employed, who have no proof of income, should be ₹8,000/- for the year 2011. The wife of the deceased, the 1[st] petitioner before the Tribunal, gave evidence as regards the income of the deceased. In spite of that, the Tribunal, disbelieving the testimony of PW1, fixed the monthly income as ₹4,000/-. The said conclusion of the Tribunal cannot stand the scrutiny of law. In the facts of the case, the monthly income of **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** the deceased has to be fixed at ₹8,000/- per month and the petitioners shall be entitled to proportionate enhancement in compensation under the head loss of dependency. Accordingly, the compensation for loss of dependency should be fixed as ₹13,10,400/- (₹8,000/- x 12 x 130/100 x 3/4 x 14). As the Tribunal has already granted ₹6,55,200/- under this head, the additional compensation payable to the petitioners will be ₹6,55,200/-. 13. The learned counsel for the petitioners argued that the Tribunal has not granted any compensation towards loss of estate. However, it has to be noted that the Tribunal has granted 'just compensation' for loss of love and affection amounting to ₹1 lakh. In the circumstances, there is no need to award separate amount towards the head loss of estate. The learned counsel for the petitioners pointed out that the Tribunal has granted only ₹10,000/- towards pain and suffering, which is much on the lower side. The deceased was 41 years old and the entire family was dependent on him. The deceased was **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** riding on pillion seat when the unfortunate accident occurred at Kulappully. The deceased sustained serious injuries at the place of accident. He was taken firstly to Seventh Day Hospital, Ottappalam in Palakkad District and from there he was referred to Jubilee Mission Hospital in Thrissur District. The deceased died on the same day at 10.45 p.m. Taking note of the events leading to the tragic death, this Court is of the firm opinion that the compensation of ₹10,000/- awarded by the Tribunal need modification. Accordingly, an additional compensation of ₹20,000/- is awarded to the petitioners. 14. In the circumstances, MACA No.1026/2015 filed by the appellant-petitioners and MACA No.238/2014 filed by the appellant-insurer are disposed of with the following directions:- 1. The appellants in MACA No.1026/2015 will be eligible for additional compensation under the following heads:- - (a) Additional compensation towards Loss of dependency ₹6,55,200/(₹8,000/- x 12 x 130/100 x 3/4 x 14) - (b) Additional compensation towards pain and suffering ₹20,000/(₹30,000/- minus ₹10,000/- already awarded by the Tribunal) **MACA.Nos.238/2014 & 1026/2015** **==> picture [30 x 9] intentionally omitted <==** 2. The appellants in MACA No.1026/2015 will be eligible to a reduced compensation towards funeral expenses, ₹15,000/only, as against ₹25,000/- awarded by the Tribunal. Accordingly, after adjusting the excess amount awarded by the Tribunal towards funeral expenses, the appellants in MACA No.1026/2015 will be eligible for an additional compensation of ₹6,65,200/- with 9% interest per annum from the date of the OP(MV). It is made clear that the petitioners will not be entitled to claim interest for the delay period of 482 days, in view of the order dated 17.01.2017 of this Court in C. M. Application No.1130/2015. The appellant in MACA No.238/2014 is directed to deposit the amount within 30 days. Sd/- **N. NAGARESH, JUDGE** aks/04/06/2020