High Court of KeralaSingle JudgeMACA stands allowed accordingly.

Nisha Sareesh and Others v. Jayesh and Jithin and The Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No.2371 of 2013

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • MARY JOSEPH
Judgment Date
2023-02-13
Court Decision / Holding
M.A.C.A stands allowed accordingly.
Final Disposition
MACA stands allowed accordingly.

Parties to the Case

Appellants / Petitioners

  • NISHA SAREESH W/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL
  • P.N.PARAMESWARAN F/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL
  • SUSEELA PARAMESWARAN M/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL
  • SARAYOO SAREESH D/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL, REPRESENTED BY MOTHER NISHA SAREESH. BY ADV DR.GEORGE ABRAHAM

Respondents

  • JAYESH, S/O.NARAYANAN, VALLIYIL HOUSE, THALAPPALAM P.O., KOTTAYAM DISTRICT
  • JITHIN, S/O.VIJAYAN, ALAPPATTUMANDAPATHIL HOUSE, PLASSANAL P.O., MELAMPARA
  • THE ORIENTAL INSURANCE CO.LTD. BRANCH, MUNDAKKAYAM.

Legal Representation & Advocates

Counsels for Petitioners

  • • Dr. George Abraham

Counsels for Respondents

  • • Sri P.C. Haridas
  • • Sri V.P.K. Panicker

Case Synopsis & Summary

This MACA (Motor Accident Claims Appeal) No. 2371 of 2013 arises from an order of the Motor Accidents Claims Tribunal, Pala, dated 29 December 2012 in OP(MV) 535 of 2010, concerning the death of Sareesh (age 31) in a road accident on 29 December 2009. The appellants—Nisha Sareesh and her family members—claimed Rs 6,00,000 as compensation for the death. The insurer admitted coverage but opposed liability, contending that the 2nd respondent lacked a valid driving license. The Tribunal awarded Rs 5,95,500 with 7.5% interest and directed recovery from the first and second respondents, since the 2nd respondent allegedly rode without a valid license. The appellants contended that the Tribunal fixed the deceased’s monthly income at a notional Rs 4,000, which undervalued dependency losses, and urged enhancement: Rs 16,500 funeral expenses; Rs 16,500 loss of estate; Rs 44,000 each for loss of consortium; and that future prospects (40%) should be added in light of Pranay Sethi. They also cited Ramachandrappa to justify higher notional income (Rs 6,500) for a self-employed person and argued for a deduction of 1/4 from income for personal expenses. The respondents urged the Tribunal’s approach was correct given the evidence. The High Court ultimately reassessed dependency, increased the monthly income, and modified the award accordingly, directing payment of Rs 9,25,400 as additional compensation and applying post-judgment directives, including Circular No.03/2019 for disbursal.

Legal Doctrines & Maxims

  • Notional income doctrine for self-employed persons (Coolie/ Ramachandrappa principle)
  • Future prospects addition to income (40%) per Pranay Sethi
  • Deduction of 1/4 from monthly income for personal expenses
  • Loss of estate, funeral expenses, and loss of consortium as heads of compensation

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the Tribunal fixed the deceased’s monthly income at Rs. 4,000 on a notional basis, which did not reflect the earning capacity of a self‑employed person. Citing Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (2011) 13 SCC 236, they urged that Rs. 6,500 monthly income would be more appropriate. They contended that per Pranay Sethi (National Insurance Co. Ltd. v. Pranay Sethi), 40% should be added for future prospects, and that 1/4th deduction for personal expenses should be applied to the notional income. They sought Rs. 16,500 funeral expenses, Rs. 16,500 loss of estate, and Rs. 44,000 each for loss of consortium. They also argued for holding the 2nd respondent liable notwithstanding insurance coverage and argued for enhanced dependency compensation; the ultimate goal was to secure a larger, just, and timely award for the appellant‑claimants.

Contentions of Respondents

The respondents argued that the petitioners failed to establish the deceased’s actual monthly income and that the Tribunal’s fixation of Rs. 4,000/month on a notional basis was reasonable. They maintained that the multiplier 16 and the existing award properly calculated loss of dependency. They contended that the evidence did not justify the higher incomes claimed and that reliance on Ramachandrappa was misplaced. They urged the court to uphold the Tribunal’s order and liability on the insurer, denying enhancement absent proof of actual earnings and challenging the grievous fault elements tied to the license status of the rider.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
National Insurance Co.Ltd. v. Pranay Sethi and Others2017 (4) KLT 662 (SC)PositiveUsed to justify 40% addition for future prospects to the notional income for dependency calculation.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.(2011) 13 SCC 236PositiveUsed to support higher notional income for a self-employed deceased and to justify notional earnings.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 MACA NO. 2371 OF 2013`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 535/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA DATED 29.12.2012 APPELLANTS/PETITIONERS:`** - `1 NISHA SAREESH W/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL.` - `2 P.N.PARAMESWARAN F/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL.` - `3 SUSEELA PARAMESWARAN M/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL.` - `4 SARAYOO SAREESH D/O.LATE SAREESH, PADIKAPALLIL HOUSE, KIZHUVANKULAM P.O., CHERPUNKAL, REPRESENTED BY MOTHER NISHA SAREESH. BY ADV DR.GEORGE ABRAHAM` ## **`RESPONDENTS/RESPONDENTS:`** - `1 JAYESH,S/O.NARAYANAN, VALLIYIL HOUSE, THALAPPALAM P.O., KOTTAYAM DISTRICT.` - `2 JITHIN, S/O.VIJAYAN, ALAPPATTUMANDAPATHIL HOUSE, PLASSANAL P.O., MELAMPARA.` - `3 THE ORIENTAL INSURANCE CO.LTD. BRANCH, MUNDAKKAYAM. BY ADVS.SRI.P.C.HARIDAS SRI.VPK.PANICKER SRI.P.C.HARIDAS SRI.VPK.PANICKER` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP`** ``` FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2371 of 2013 -:2:- ## JUDGMENT ## Dated this the 13[th] day of February, 2023 This appeal is directed against an order passed by Motor Accidents Claims Tribunal, Pala on 29.12.2012 in OP(MV) No. 535 of 2010. The appellants are the petitioners before the Tribunal. The above Original Petition was moved by them seeking for a sum of `6,00,000/- as compensation in favour of them for the death of one Mr.Sareesh, aged 31 years in a motor accident occurred at 8.30 p.m. on 29.12.2009. 2. Mr.Sareesh was riding a motor cycle bearing registration No.KL 31/4137 from Erattupetta to Pala and it was hit by another motorcycle bearing registration No.KL-5/U-2793 and thereby sustained serious injuries. While being transported to Medical College Hospital, Kottayam for treatment, he died. Alleging that the motor accident was occurred due to rash and negligent riding of the motorcycle bearing registration No.KL-5/U-2793 by its rider and claiming for a sum of `6,00,000/- as compensation, the above Original Petition was moved before the Tribunal. The rider, MACA No.2371 of 2013 -:3:- owner and insurer of the offending motorcycle were arrayed as respondents 1 to 3 in the Original Petition. 3. All respondents were served with notice. The driver and owner did not contest the Original Petition. Insurer of the vehicle as the 3[rd] respondent had filed written statement admitting insurance coverage for the motorcycle bearing registration No.KL-5/U-2793 as on date of accident. It was contended that the 2[nd] respondent had ridden the motorcycle without a valid and effective driving license and therefore is devoid of authorisation to ride it at the relevant time. Accordingly exoneration from liability was sought by the 3[rd] respondent for violation by the insured of a condition in the policy issued by it. Age, occupation and monthly income of the deceased were disputed. Compensation claimed is also disputed for its exorbitant nature. 4. Before the Tribunal, parties had adduced documentary evidence. On the side of the petitioners, Exts.A1 to A6 and on the side of the 3[rd] respondent Ext.B1 was marked. On the basis of the said evidence `5,95,500/- was arrived at by the Tribunal as the compensation payable and the 3[rd] respondent insurer was directed to deposit the same with interest at the rate of 7.5% per MACA No.2371 of 2013 -:4:- annum from the date on which the Original Petition was filed till the date of realisation of the amount alongwith proportionate costs. The 3[rd] respondent was also directed to get recovery of the amount from 1[st] and 2[nd] respondents jointly and severally, after depositing the same in favour of the petitioners, since the 2[nd] respondent was proved as not holding a valid and effective driving license to ride the motorcycle as on date of accident. 5. It is contended by Dr.George Abraham, the learned counsel appearing for the appellants that the Tribunal had fixed Rs.4,000/- as the monthly income of the deceased on a notional basis and compensation for loss of dependency was calculated on its basis. According to the learned counsel, the monthly income fixed is too low and disproportionate to the year in which the motor accident was occurred and therefore, interference is warranted. The learned counsel has further contended that though the petitioners are entitled to get `16,500/- towards funeral expenses, the Tribunal awarded only `5,000/-. The learned counsel has also pointed out that as compensation towards loss of estate, the Tribunal failed to award compensation and thereby denied a sum of `16,500/-, which they are entitled MACA No.2371 of 2013 -:5:- to get. The attention of this Court is also drawn to an error crept into while awarding compensation towards loss of consortium. Though each of the petitioners are entitled to get `44,000/-, the Tribunal confined grant of compensation to `15,000/- in favour of the 1[st] petitioner. It is further contended that the deceased being a self employed man aged 31 years, in view of National Insurance Co.Ltd. V. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] 40% is liable to be added to the monthly income fixed, in consideration of loss of future prospects. According to him, the Tribunal failed to do so and thereby is unjustified. It is further contended that 1/4[th] is required to be deducted from the monthly income in consideration of the personal expenditure liable to be met with by Mr.Sareesh, had he not been died in the motor accident. 6. It is urged by the learned counsel on behalf of the 2[nd] respondent that the petitioners had raised a claim in the Original Petition that Mr.Sareesh was getting only `6,000/- as monthly income and therefore, a modified sum cannot be taken as his monthly income. He also urged that `6,00,000/- being the claim for compensation and in the event of `5,95,500/- being the MACA No.2371 of 2013 -:6:- maximum sum stands awarded, a claim for an enhanced compensation is unjust and unreasonable. 7. It is contended by the learned counsel for the 3[rd] respondent that in a context where the petitioners failed to establish the monthly income of the deceased as claimed by them, the Tribunal cannot be found fault with in fixing `4,000/as his monthly income on a notional basis. According to him, compensation for loss of dependency being calculated based on the monthly income notionally fixed and adopting 16 as the correct multiplier, interference with that is totally unwarranted. 8. It was pointed out by the learned counsel for the 3[rd] respondent that in a context when the rider of the motorcycle was established as not holding a valid and effective driving license that recovery of the amount awarded as compensation was permitted after it was deposited in favour of the petitioners and therefore the finding of the Tribunal is liable to be maintained. 9. It is noticed that `4,000/- was fixed as the monthly income on a notional basis. Mr.Sareesh was claimed by the petitioners as 31 years and earning a monthly income of `6,000/- MACA No.2371 of 2013 -:7:- from his occupation as a Carpenter at the relevant time when his life was taken away by the motor accident. Mr.Sareesh being a self employed man, there is every justification to take a higher sum, as monthly income in accordance with the fixation of monthly income by the Apex Court in the case of a Coolie worker in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236]. The accident in question being occurred in the year 2009, this Court finds it reasonable to fix `6,500/- as the monthly income. As compensation towards funeral expenses, the compensation stands awarded being `5,000/-, this Court is inclined to award `11,500/- as additional compensation. Under the head loss of estate, the Tribunal failed to award any sum as compensation and this Court awards `16,500/-. 10. Under the head loss of consortium, each of the petitioners are entitled to get `44,000/-. As already stated, the award of compensation by the Tribunal is confined to `15,000/and only in favour of the 1[st] petitioner. `15,000/- when deducted from `1,76,000/- [(`44,000/-x4)-`15,000/-] `1,61,000/- is MACA No.2371 of 2013 -:8:- arrived and the petitioner will get the same as additional compensation. 11. Compensation for loss of dependency when reassessed based on the modified monthly income and multiplier, `13,10,400/- is arrived at. `5,44,000/- stands awarded by the Tribunal when adjusted against, petitioners will get `7,66,400/as compensation for loss of dependency. When calculated in the above manner, `9,55,400/- is arrived at. 12. It is noticed from the impugned award that the petitioner have been awarded `20,000/- and `10,000/respectively towards pain and suffering and loss of love and affection, which they are disentitled to receive. Therefore, `30,000/- (`20,000/-+`10,000/-) is deducted from the sum now arrived at as additional compensation. Therefore, petitioners will get `9,25,400/- (Rupees Nine lakhs twenty five thousand four hundred only) [`9,55,400/- - `30,000/-] as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding 62 days being the delay occurred in filing the appeal. The Tribunal has directed the 3[rd] MACA No.2371 of 2013 -:9:- respondent to deposit the sum arrived at as compensation in favour of the petitioners and to get it recovered from respondents 1 and 2 jointly and severally on being convinced from evidence that the 2[nd] respondent was not holding a valid and effective driving license to ride the motorcycle. In the absence of any challenge against it, the direction of the Tribunal is maintained. Thus, the 3[rd] respondent is directed to deposit the sum now arrived at as additional compensation with interest fixed, within a period of two months from the date on which a certified copy of this judgment is received and to get it recovered from respondents 1 and 2 jointly and severally. The disbursal of the compensation shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- MARY JOSEPH, JUDGE. ttb