High Court of KeralaSingle Judge2022-06-14The appeal is disposed of; enhanced compensatio...

Omana Sebastian and others v. Soman s/o Pachu and The Oriental Insurance Co. Ltd.

Case / Petition Number:MACA NO. 3542 OF 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Justice Murali Purushothaman
Judgment Date: 2022-06-14
Court Decision / Holding: The appeal is disposed of. The enhanced total compensation is Rs.5,79,750. The insurer shall deposit this amount before the Tribunal with 8.5% interest per annum and proportionate costs within two months from the copy of the judgment. The insurer’s right to recover from the insured is retained. The apportionment will follow the Tribunal’s directions.
Final Disposition: The appeal is disposed of; enhanced compensation awarded; insurer to deposit within two months with interest; insurer’s right to recover preserved.

Parties to the Case

Appellants / Petitioners

Omana Sebastian
Bij o Sebastian
Jobi Sebastian
Kunjumma

Respondents

Soman s/o Pachu
The Oriental Insurance Co. Ltd. Divisional Office, Kottayam

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri K.A. Hashim

Counsels for Respondents

• Adv. SMT. Rekha Nair

Case Synopsis & Summary

On 7 April 2013, Sebastian Joseph, aged 47, died in a motor-vehicle collision when an autorickshaw driven by the 1st respondent struck the motorcycle on which he was a pillion rider. The petitioners – wife Omana Sebastian, two of their children, and the mother of the deceased – filed MACA 3542/2015 challenging the Motor Accidents Claims Tribunal, IInd, Kottayam award in O.P.(MV) 697/2013. The Tribunal held the accident occurred due to the negligence of the autorickshaw driver and found a violation of policy conditions due to lack of a valid driving license; it awarded Rs. 9,84,900 with 8.5% interest and reserved the insurer’s right to recover under Section 149(4) of the Motor Vehicles Act, 1988. The appellants contended the quantum was inadequate. The High Court, applying the Ramachandrappa principle for notional income (Rs.9,000) with future prospects (25% cap per Pranay Sethi), and a 1/4 deduction for personal living expenses, recalculated the dependency component using a multiplier of 13 and four dependants, yielding Rs.5,55,750 after deducting the Tribunal’s earlier award of Rs.7,60,500. The court re-evaluated heads of loss of consortium (Rs.1,76,000), reduced love and affection head per Satinder Kaur, and adjusted funeral expenses (Rs.16,500) and loss of estate (Rs.16,500). The total enhanced compensation became Rs.5,79,750. The insurer must deposit this amount with 8.5% interest within two months, retaining its right to recover from the insured. The appeal is disposed of by the Single Judge, Murali Purushothaman, J.

Provisions of Law Cited

Section 149(4) of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Notional income rule (Ramachandrappa)
Future prospects in compensation (25% cap per Pranay Sethi)
Deduction for personal and living expenses (1/4 of income)
Multiplier principle for dependency calculation (multiplier 13)
Loss of consortium vs love and affection (Satinder Kaur)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal erred in fixing a meagre notional income of Rs.5,000 for the deceased, who was a mosaic worker earning about Rs.13,000 per month. Relying on Ramachandrappa, they urged a higher notional income (Rs.9,000) with future prospects and the standard 13-multiplier, adjusting for four dependants and the 1/4 personal expense deduction. They asserted that Pranay Sethi compels a 25% cap on future prospects and argued to reassess the loss of dependency, loss of consortium, and related heads. They urged elimination of the separate head for ‘loss of love and affection’ in light of Satinder Kaur (2020) and reallocation of sums accordingly, including funeral expenses and loss of estate. The petitioners sought enhanced compensation and deposition within two months with interest, maintaining the insurer’s liability to pay and recoveries under Section 149(4).

Contentions of Respondents

The respondents contended that the accident occurred due to negligence by the deceased and that the compensation claimed was excessive. They argued the autorickshaw driver lacked a valid driving license and emphasized that the policy conditions were violated, notwithstanding a valid policy on record. They asserted the insurer’s right to recover the awarded amount from the insured under Section 149(4) and contested the quantum of enhancement.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	Used to fix the notional monthly income (Rs.9,000) for the deceased, establishing the Notional Income principle.
National Insurance Company Ltd. v. Pranay Sethi	2017 (4) KLT 662 SC	Positive	Cited for the 25% cap on future prospects (per Pranay Sethi) in calculating enhanced compensation.
United India Insurance Co. Ltd. v. Satinder Kaur	AIR 2020 SC 3076	Positive	Held there is no justification for a separate head of ‘loss of love and affection’ once loss of consortium is awarded; led to deduction of Rs.50,000 under that head.

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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** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944** ## **MACA NO. 3542 OF 2015** **AGAINST THE AWARD DATED 30.04.2015 IN OPMV 697/2013 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL-II ,KOTTAYAM** ## **APPELLANT/PETITIONERS:** **1 OMANA SEBASTIAN W/O.LATE SEBASTIAN JOSEPH, KAITHAYIL HOUSE, PULIKKUZHY MATTOM BHAGOM, KURICHY KARA, KURICHY VILLAGE. 2 BIJO SEBASTIAN S/O.LATE SEBASTIAN JOSEPH, KAITHAYIL HOUSE, PULIKKUZHY MATTOM BHAGOM, KURICHY KARA, KURICHY VILLAGE. 3 JOBI SEBASTIAN S/O.LATE SEBASTIAN JOSEPH, KAITHAYIL HOUSE, PULIKKUZHY MATTOM BHAGOM, KURICHY KARA, KURICHY VILLAGE. 4 KUNJUMMA, W/O.LATE JOSEPH, KAITHAYIL HOUSE, PULIKKUZHY MATTOM BHAGOM, KURICHY KARA, KURICHY VILLAGE.** **BY ADV SRI.K.A.HASHIM** ## **RESPONDENT/RESPONDENTS:** - **1 SOMAN S/O.PACHU, KANNONKAL HOUSE, NEDUNKARAI BHAGOM, KONGANDOOR KARA, AIYARKUNNAM VILLAGE, PIN-686 564.** - **2 THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE, KOTTAYAM, PIN-686 001.** **BY ADV SMT.REKHA NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** - **ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 3542 OF 2015 ..2..** ## **JUDGMENT** The petitioners are the claimants in O.P.(MV)No.697/2013 on the files of the Motor Accidents Claims Tribunal-II, Kottayam. Aggrieved by the amount of compensation awarded by the Tribunal, they preferred this appeal. The parties are referred to as per their status in the claim petition. 2. The 1[st] petitioner is the wife, petitioners 2 and 3 are the children and the 4[th] petitioner is the mother of deceased Sebastian Joseph, who died in a motor vehicle accident which happened on 07.04.2013. According to the petitioners, while deceased Sebastian Joseph was travelling on a motor cycle as pillion rider, an autorickshaw bearing Reg. No.KL-05-AF-3513, driven by the 1[st] respondent, hit on the motor cycle and the deceased sustained serious injuries. He was taken to the hospital and while undergoing treatment, he succumbed to the injuries on 09.04.2013. The 1[st] respondent is the owner-cum driver of the autorickshaw and 2[nd] respondent is its insurer. According to the petitioners, the accident **MACA NO. 3542 OF 2015 ..3..** happened due to the negligence on the part of the 1[st] respondent. They claimed an amount of Rs.12,00,000/- as total compensation for the death of Sebastian Joseph, the only bread winner of the family. 3. The 1[st] respondent remained _ex parte_ before the Tribunal. The 2[nd] respondent insurance company filed a written statement admitting that the autorickshaw was having a valid policy of insurance at the time of the accident. However, it was contended that the accident happened due to the negligence on the part of the deceased and that the compensation claimed is excessive and exorbitant. They also contended that the 1[st] respondent was not having a valid driving licence at the time of the accident. 4. The Tribunal found that the accident happened due to the negligence on the part of the 1[st] respondent and that the 1[st] respondent was not having a valid driving licence at the time of the accident and as such, there was violation of conditions of policy. The Tribunal awarded an amount of Rs.9,84,900/- as total compensation with 8.5% interest per annum from the date of the **MACA NO. 3542 OF 2015 ..4..** petition till realisation with proportionate costs. The 2[nd] respondent insurance company was directed to satisfy the award. However, the right of the insurance company to recover the amount from the 1[st] respondent was reserved by the Tribunal, in terms of Section 149(4) of the Motor Vehicles Act, 1988. 5. The compensation awarded by the Tribunal under different heads is as follows:- |**Sl.** **No.**|**Head of claim (Rs)**|**Amount** **claimed (Rs.)**|**Amount** **awarded** **(Rs.)**| |---|---|---|---| |1|Loss of earnings|1,500|Nil| |2|Transport to hospital|5,000|3,000| |3|Damage to clothing and articles|5,000|1,000| |4|Medical expenses|30000|5000| |5|Bystander expenses|1000|400| |6|Extra nourishment|1,000|Nil| |7|Loss of love and affection|80,000|50,000| |8|Loss of consortium|50,000|1,00,000| **MACA NO. 3542 OF 2015 ..5..** ||||| |---|---|---|---| |9|Funeral expenses|25,000|25,000| |10|Compensation for loss of dependency|15,21,000|7,60,500| |11|Pain and suffering|75,000|20,000| |12|Loss of estate|50,000|10,000| |13|Mental agony and suffering by the dependents|50,000|Nil| ||Total|18,69,500 limited to 12,00,000|9,84,900| 6. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners have come up in appeal. 7. According to the petitioners, the deceased was a mosaic worker and was earning an amount of Rs.13,000/- per month. He was aged 47 years at the time of the accident. The Tribunal found that no evidence was let in by the petitioners to prove the income of the deceased. Accordingly, the notional income of the deceased was fixed as Rs.5,000/- per month. Going by the decision of the **MACA NO. 3542 OF 2015 ..6..** _**v**_ Hon'ble Supreme Court in **Ramachandrappa . Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], the notional monthly income of the deceased can be taken as Rs.9,000/- for the purpose of computation of compensation. The Tribunal has added 30% of the income towards future prospects. The deceased was aged 47 years at the time of the accident and therefore, only 25% of the notional income can be added towards future prospects [ **(National Insurance** . **Company Ltd. v. Pranay Sethi [2017(4) KLT 662 SC]** Therefore, the notional monthly income comes to Rs.11,250/-. There are four dependents and hence 1/4[th] of the income has to be deducted towards personal and living expenses. The Tribunal has rightly taken the multiplier as '13'. Accordingly, the compensation for loss of dependency is re-calculated as Rs.13,16,250 [11,250x12x13x3/4]. The Tribunal has already awarded an amount of Rs.7,60,500/-. After deducting the said amount, the petitioners are entitled for an amount of **Rs.5,55,750/-** [13,16,250–7,60,500] as enhanced compensation under the said head. **MACA NO. 3542 OF 2015 ..7..** 8. Towards loss of consortium, the Tribunal has awarded an amount of Rs.1,00,000/- and Rs.50,000/- was awarded for loss of love and affection. The petitioners are the wife, children and mother of the deceased. In the light of the decision in _**Pranay Sethi,**_ they are entitled for an amount of Rs.44,000/- each [Rs.40,000+10% hike in every three years] under the head loss of consortium. Thus, the compensation under the said head is reassessed as **Rs.1,76,000/-** [44,000x4]. Since an amount of Rs.1,00,000/- has already been awarded, the petitioners are entitled for an additional sum of **Rs.76,000/-** under the head loss of consortium. 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 consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Therefore, the petitioners are not entitled for any amount under the head loss of love and affection and amount of **Rs** . **50,000/-** awarded under the head loss of love and affection has to be deducted from the total compensation. **MACA NO. 3542 OF 2015 ..8..** 9. Towards compensation under the head funeral expenses, the Tribunal has awarded an amount of Rs.25,000/-. Going by the decision in **Pranay Sethi** (supra), the petitioners are entitled only for an amount of Rs.16,500/- [15,000 + 10% hike for every three years]. Therefore, an amount of **Rs.8,500/-** [25,000-16,500] has to be deducted under the said head. 10. The Tribunal has awarded only an amount of Rs.10,000/towards loss of estate. The petitioners are entitled for an amount of Rs.16,500/- [15,000 + 10% hike for every three years], following the decision in **Pranay Sethi** (supra). Therefore, **Rs.6,500/-** [16,500-10,000] more is granted under this head. 11. I find that the compensation awarded by the Tribunal under other heads is just and reasonable. Accordingly, the petitioners are entitled for a total enhanced amount of Rs.5,79,750/- [5,55,750+76,000-50,000-8,500+6500]. The 2[nd] respondent insurance company shall deposit the said amount before the Tribunal with 8.5% interest per annum along with proportionate costs within a period of two months from the **MACA NO. 3542 OF 2015 ..9..** date of receipt of copy of this judgment. The right of the insurance company to recover the amount from the 1[st] respondent is retained. The apportionment of the amount shall be made as directed by the Tribunal. While calculating the interest on the enhanced compensation, the petitioners will not be entitled for interest for a period of 139 days in the light of the order dated 01.08.2019 in C.M.Application No.4271/2015 in the appeal. The appeal is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** SB/15/06/2022