High Court of KeralaSingle Judge2019-07-03Appeal and cross-objection disposed of; enhance...

New India Assurance Company Limited v. Kadeeja and others, MACA No.302 of 2013 & CO No.127 of 2014

Case / Petition Number:MACA No.302 of 2013 & CO No.127 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.B. Suresh Kumar
Judgment Date: 2019-07-03
Court Decision / Holding: The appeal and cross-objections are disposed of. The insurer is directed to pay Rs. 5,43,600 as additional compensation to the claimants, with interest at 7.5% and directions to the Tribunal regarding deposit and disbursal of the enhanced amount.
Final Disposition: Appeal and cross-objection disposed of; enhanced compensation ordered; interest awarded; directions on deposit/disbursal to be followed.

Parties to the Case

Appellants / Petitioners

New India Assurance Co. Ltd.

Respondents

Kadeeja
Hajara
Muhammed Asslam (minor)
Fathima Asmitha (minor)
C. Basheer
Abdul Salam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Jacob Murikan

Counsels for Respondents

• Sri V.N. Ramesan Nambi San
• Smt. R. Padmakumari
• Sri G. Prabhakaran

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA) challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Vadakara, in OP(MV) 502/2009 (award dated 30-07-2012). The insurer (appellant) contends that the Tribunal erred in calculating the deceased Ayub’s income and in applying future prospects, and that the damages awarded under several heads were either inadequate or not properly computed. The cross-objectors (claimants) seek enhancement for loss of dependency, funeral expenses, pain and suffering, loss of estate, loss of consortium, and loss of love and affection. The claimant family consisted of the mother, wife and two minor children of the deceased, who was aged 34 and claimed Rs. 10,00,000 as compensation after the death in a vehicular accident on 30-01-2009. The Tribunal assessed Rs. 8,13,500 for dependency with an income assumption and 50% future prospects; the insurer argued that, given lack of permanent employment, future prospects should be capped at 40% and the monthly income should be Rs. 6,000. The Judge reevaluated the figures, applying Supreme Court precedents (Ramachandrappa, Syed Sadiq) to arrive at a higher total. Several heads were remediated, including funeral expenses, pain and suffering, loss of estate, loss of love and affection, and loss of consortium. Ultimately, the Court directed a further Rs. 5,43,600 as additional compensation and awarded interest at 7.5%, with directions for deposit/disbursal. The decision also relies on Pranay Sethi and Magma decisions for headwise enhancements.

Legal Doctrines & Maxims

Future prospects in compensation (40% for non-permanent employment)
Deduction of personal expenses (1/4) in dependency calculations
Pranay Sethi guidelines for heads of compensation (funeral expenses, loss of love and affection, etc.)
Magma General Insurance Co. Ltd. v. Nanu Ram for enhancements in compensation heads

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the Tribunal wrongly assessed the deceased’s income and future prospects. It submits that Ayub’s monthly income should be Rs. 6,000 and that future prospects should not exceed 40% given non-permanent employment. It relies on Ramachandrappa and Syed Sadiq to support lower or appropriately adjusted figures and seeks recalibration of several heads to reflect more conservative sums. The insurer also argues for strict adherence to established ratios and seeks to minimize the burden on premium payments by avoiding overestimation in the multiplier and dependency calculations.

Contentions of Respondents

The claimants argue for higher compensation across multiple heads in line with evolving jurisprudence (Pranay Sethi and Magma decisions). They seek larger sums for loss of dependency, funeral expenses, pain and suffering, loss of estate, loss of love and affection, and loss of consortium, contending that the Tribunal’s quantum was inadequately low, particularly given the relationship of dependents and the years of loss suffered by the family.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	(2011) 13 SCC 236	Positive	Used to justify 40% future prospects for non-permanent employment and related income considerations.
Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Positive	Cited for income and future-prospects considerations in the context of non-permanent employment.
National Insurance Co. Ltd v. Pranay Sethi	(2017) 4 SCC 662	Positive	Guides heads of compensation, including funeral expenses and loss of love/affection; used to justify headwise enhancements.
Magma General Insurance Co. Ltd. v. Nanu Ram and others	(2018) ACJ 2782	Positive	Cited in support of enhanced compensation for loss of love and affection.

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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 P.B.SURESH KUMAR** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** ## **MACA.No.302 of 2013** **AGAINST THE AWARD IN OP(MV)502/2009 of the MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA DATED 30-07-2012** ## **APPELLANT/3RD RESPONDENT IN O.P(M.V):** **THE NEW INDIA ASSURANCE CO.LTD DIVISIONAL OFFICE-II, Y.M.C.A.ROAD, CALICUT - 673 001, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI - 682 011.** **BY ADV. SRI.JACOB MURIKAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 2 IN O.P(M.V):** **1 KADEEJA, W/O.MAMMED KOYA, PULLANCHERY KUNI HOUSE, P.O.VENGALAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 303. 2 HAJARA, W/O.LATE AYOOB, PULLANCHERY KUNI HOUSE, P.O.VENGALAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 303. 3 MUHAMMED ASSLAM (MINOR), S/O.LATE AYOOB, PULLANCHERY KUNI HOUSE, P.O.VENGALAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 303, REPRESENTED BY THE 2ND RESPONDENT (MOTHER) AS NEXT FRIEND AND GUARDIAN.** M.A.C.A No.302 of 2013 & CO No.127 of 2014 2 **4 FATHIMA ASMITHA (MINOR), D/O.LATE AYOOB, PULLANCHERY KUNI HOUSE, P.O.VENGALAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 303, REPRESENTED BY THE 2ND RESPONDENT (MOTHER) AS NEXT FRIEND AND GUARDIAN.** - **5 C.BASHEER, S/O.MOIDU, CHERIYANDI HOUSE, KATALUR P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 303.** - **6 * ABDUL SALAM** **S/O.MOIDEEN KOYA, KANHIRATHINGAL HOUSE, MARIKUNNU P.O., CALICUT - 673 012.** ## *** DELETED** **R6 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 30/5/14 IN IA NO.1366/14 IN MACA 302/2013** **BY ADVS.** **R1 TO R4 BY SRI.V.N.RAMESAN NAMBISAN R5 BY SMT.R.PADMAKUMARI SRI.G.PRABHAKARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2019, ALONG WITH CO.127/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.302 of 2013 & CO No.127 of 2014 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** **CO.No.127 of 2014 IN MACA. 302/2013** **AGAINST THE AWARD IN OP(MV)502/2009 of the MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA DATED 30-07-2012** **CROSS OBJECTORS/RESPONDENTS 1 TO 4:** - **1 KADEEJA, AGED 54 YEARS W/O.MAMMED KOYA** - **2 HAJARA,** - **AGED 33 YEARS W/O.DECEASED AYOOB** - **3 MUHAMMED ASSLAM (MINOR), AGED 14 YEARS** - **S/O.DECEASED AYOOB, DATE OF BIRTH 7.6.2000** - **4 FATHIMA ASMITHA (MINOR), AGED 13 YEARS** - **D/O.DECEASED AYOOB, DATE OF BIRTH 13.9.2001 3 & 4 CROSS OBJECTORS ARE REPRESENTED BY MOTHER AND GUARDIAN 2ND APPELLANT NAMED HAJARA.** - **(ALL ARE RESIDING AT PULLANCHERY KUNI HOUSE,P.O.VENGALAM, KOYILANDY TALUK, KOZHIKODE DISTRICT)** ## **BY ADV. SRI.V.N.RAMESAN NAMBISAN** M.A.C.A No.302 of 2013 & CO No.127 of 2014 4 ## **RESPONDENTS/APPELLANT/RESPONDENT NO.5:** - **1 THE NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE - II, Y.M.C.A. ROAD, CALICUT, PIN - 673 001 REPRESENTED BY THE DULY CONSTITUTED ATTORNEY, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI - 682 011.** - **2 C.BASHEER S/O.MOIDU, CHERIYANDI HOUSE, KATALUR P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADVS. R1 BY SRI.M.JACOB MURIKAN R2 BY SRI.G.PRABHAKARAN** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2019, ALONG WITH MACA.302/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.302 of 2013 & CO No.127 of 2014 5 ## **J U D G M E N T** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the quantum of compensation granted by the Tribunal to the claimants. The cross objection is by the claimants in the proceedings challenging the inadequacy of the compensation granted. 2. One Ayub died in a motor accident took place on 30.01.2009. The mother, wife and two minor children of the deceased were the claimants in the proceedings. It was stated in the claim petition that the deceased was a salesman. The deceased was aged 34 years at the time of accident. A sum of Rs.10,00,000/- was claimed by way of compensation in the proceedings. The Tribunal having regard to the facts and circumstances of the case, granted to the claimants a sum of Rs.8,13,500/-. Both the insurer as also the claimants are aggrieved by the quantum of compensation fixed by the Tribunal. Hence this appeal and cross objection. M.A.C.A No.302 of 2013 & CO No.127 of 2014 6 3. Heard the learned counsel for the insurer as also the learned counsel for the claimants. 4. It is seen that the pleading of the claimants in the proceedings was that the deceased was earning a sum of Rs.6,000/- per month. The Tribunal has computed the compensation payable to the claimants for loss of dependency, reckoning the monthly income of the deceased at Rs.4,000/-. The Tribunal has added 50% of the income towards future prospects also. The learned counsel for the appellant contended that in so far as the deceased was not on a permanent employment, only 40% of his income should have been added towards future prospects. 5. In the light of the decisions of the Apex court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited,** (2011) 13 SCC 236 and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.** (2014) 2 SCC 735, where the Apex Court has reckoned the monthly income of persons whose income could not be M.A.C.A No.302 of 2013 & CO No.127 of 2014 **==> picture [7 x 8] intentionally omitted <==** established by independent evidence at Rs.4,500/- and Rs.6,500/-, in the context of accidents took place in the year 2004 and 2008 respectively, I am of the view that the Tribunal should have reckoned the monthly income of the deceased at Rs.6,000/-. Further, as rightly pointed out by the learned counsel for the appellant, insofar as the deceased was not on a permanent employment, the Tribunal should not have added more than 40% of the income towards future prospects. The number of dependants being four, what is to be notionally deducted towards personal expenses is only one fourth. If that be so, the claimants would be entitled to a sum of Rs.12,09,600/-(Rs.6,000x140/100x12x16x3/4) by way of compensation for loss of dependency. As the Tribunal has granted to the claimants only a sum of Rs.7,68,000/- by way of compensation under that head, they are entitled to a further sum of Rs.4,41,600/-. It is seen that the Tribunal has granted to the claimants only a sum of Rs.3,000/- towards funeral expenses. In the light of the decision of the Apex court in M.A.C.A No.302 of 2013 & CO No.127 of 2014 8 **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], having regard to the fact that the accident took place in the year 2009, I am of the view that the Tribunal should have granted at least Rs.12,500/- towards funeral expenses. The claimants are, therefore, entitled to a further sum of Rs.9,500/- under that head. Only a sum of Rs.5,000/- is seen granted by the Tribunal towards compensation for pain and suffering. It is now settled that even in the case of instantaneous death, a sum of Rs.10,000/- can be granted to the claimants by way of compensation under that head. The claimants are, therefore, entitled to a further sum of Rs.5,000/under that head. Towards compensation for loss of estate, it is seen that the Tribunal has granted only a sum of Rs.5,000/-. In the light of decision of the Apex Court in **Pranay Sethi** , the claimants are entitled to a further sum of Rs.7,500/- under that head also. Towards compensation for loss of consortium, the Tribunal has granted only a sum of Rs.15,000/-. In the light of the decision of the Apex Court in **Pranay Sethi** , having regard M.A.C.A No.302 of 2013 & CO No.127 of 2014 9 to the fact that the accident in the instant case took place in the year 2009, the Tribunal could have granted a sum of Rs.35,000/- under that head. If that be so, the claimants are entitled to a further sum of Rs.20,000/- under that head. Towards compensation for loss of love and affection, it is seen that only a sum of Rs.15,000/- has been granted. In the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), I am of the view that the Tribunal should have granted a sum of Rs.25,000/- each to the mother and two children of the deceased. If that be so, the claimants are entitled to a further sum of Rs.60,000/- under that head. Thus, the total additional compensation payable to the claimants would work out to be Rs.5,43,600/-. In the result, the appeal and cross objection are disposed of directing the insurer to pay a sum of Rs.5,43,600/to the claimants by way of additional compensation. Needless to say that the claimants will be entitled to interest for the M.A.C.A No.302 of 2013 & CO No.127 of 2014 **==> picture [13 x 8] intentionally omitted <==** additional amount of compensation granted, at the rate of 7.5%. The parties are at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. **Sd/P.B.SURESH KUMAR, JUDGE.** DK