Oriental Insurance Company Limited v. Rosamma Jacob & Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ``` MACA NO. 2754 OF 2022 ``` ``` [AGAINST THE AWARD DATED 15.03.2022 IN OP(MV)NO.1159/2017 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA] ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, MARTHOMA BUILDINGS, THIRUVALLA - 689801, NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI – 18. ``` ``` BY ADVS.P.JACOB MATHEW MATHEWS JACOB (SR.) PREETHY R. NAIR ``` ## `RESPONDENTS/PETITIONERS:` ``` 1ROSAMMA JACOB, AGED 54, W/O. JACOB JOHN, PALLIMURUPPEL, NELLIKKALA P.O, VELLAPPARA, PATHANAMTHITTA, PIN – 689 642. 2SAJAPN P. JACOB, AGED 34, S/O JACOB JOHN, PALLIMURUPPEL, NELLIKKALA P.O, VELLAPPARA, PATHANAMTHITTA, PIN – 689 642. 3SAJITHA JACOB, AGED 32, W/O RENJITH RAJU, NOOTTIMUPPATHENCHIRA, NADUVELI MURI, THALAVADY VILLEGE P.O, KUTTANADU TALUK, ALAPPUZHA DISTRICT., PIN – 689 572. 4P.K.KUNJUKUNJU, AGED 84, S/O JOHN JOSEPH, PALLIMURUPPEL, NELLIKKALA P.O., VELLAPPARA, PATHANAMTHITTA, PIN – 689 642. ``` ## `BY ADV A.N.SANTHOSH` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2754 OF 2022 ``` ``` -2- ``` ## `JUDGMENT` ``` This Appeal, by the Oriental Insurance Company Limited (‘Insurance Company’, for short), impugns the Award of the Motor Accidents Claims Tribunal, Pathanamthitta (‘Tribunal’, for short), in OP(MV)No.1159/2017; but limited to three grounds, namely, that (a) the notional income adopted by it in favour of late Jacob John - who was killed in a road accident, when he was hit by the offending vehicle insured by them, is excessive; (b) that the compensation awarded under the head “Pain and Suffering” was impermissible and (c) finally, that no amount towards “Loss of Consortium” could have been awarded to his major children, namely respondents 2 and 3. ``` ``` 2.In response to the afore plea of the appellant, as voiced by their learned Senior Counsel, Sri.Mathew Jacob, instructed by ``` ``` MACA NO. 2754 OF 2022 ``` **==> picture [22 x 9] intentionally omitted <==** ``` Smt.Preethy R.Nair, Sri.A.N.Santhosh, learned counsel for the claimants, argued that the Tribunal has not erred in any manner either in computations or in arriving at the compensation offered in the impugned Award. ``` ``` 3.Sri.A.N.Santhosh pointed out that the notional income of the deceased has been arrived ``` ``` at by the learned Tribunal taking note of the ``` ``` fact that he was the owner-cum-driver of the autorickshaw and that he was also working part- time as a Mason, which has been proved through Ext.A17 – Certificate issued by the Elanthoor Grama Panchayat. He thus prayed that this Appeal be dismissed. ``` ``` 4.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence on record, which I have analyzed very carefully. ``` ``` 5.I will first deal with the contention of ``` ``` the learned Senior Counsel that the notional ``` ``` MACA NO. 2754 OF 2022 ``` ``` -4- ``` ``` income adopted by the Tribunal in favour of the deceased was excessive. It is on record – as is ``` ``` also disclosed by the undisputed evidence – that the deceased was the owner-cum-driver of the ``` ``` autorickshaw; and that he was also engaged in ``` ``` other avocations, including as a Mason. Ext.A17 ``` ``` – Certificate issued by the Elanthoor Grama Panchayat certifies this to some degree of certainty. ``` ``` 6.Even in the case of a person with an ``` ``` unascertainable income or a person working as a ‘Coolie’ in the year 2015 – when the accident occurred – the judgment of the Hon’ble Supreme Court inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) ``` ``` 13 SCC 236] postulates that his notional income be reckoned as a minimum of Rs.10,000/- per month. ``` ``` 7.This is not a case where anyone has a ``` ``` MACA NO. 2754 OF 2022 ``` ``` -5- ``` ``` contention that the deceased was a mere ‘Coolie’; but it is conceded that he was the owner-cum-driver of the autorickshaw. ``` ``` 8.I am, therefore, of the firm view that ``` ``` adoption of Rs.14,000/- per month as the ``` ``` notional income of the deceased by the learned Tribunal is without error. I confirm the same, ``` ``` particularly because the learned Tribunal has ``` ``` then added future prospects to it, as per the Scheme postulated inSarla Verma & Others ``` ``` v.Delhi Transport Corporation & Another[2010 ``` ``` (2) KLT 802]; and has also deducted one-third as ``` ``` the personal expenses of the deceased, noticing that respondents 2 and 3 are not financially ``` ``` dependent on the deceased. ``` ``` 9.Turning to the second of the contentions of the appellant, namely that no amount could have been granted under the head “Pain and ``` ``` Suffering”, this is on terra firma because, ``` ``` MACA NO. 2754 OF 2022 ``` ``` -6- ``` ``` United India Insurance Company Ltd. v. Satinder ``` ``` Kaur @ Satwinder Kaur[(2021) 11 SCC 780] declares that no such amount could have been ``` ``` granted when compensation under the head “Loss ``` ``` of Dependency” is offered. The compensation ``` ``` awarded under that head will certainly have to be deleted. ``` ``` 10.Finally, on the question of compensation ``` ``` to be awarded under the head “Loss of ``` ``` Consortium”, I can never countenance the ``` ``` argument of the Insurance Company that major ``` ``` children cannot obtain compensation for the ``` ``` death of their father, merely because he is in ``` ``` an advanced age. I have already dealt with this ``` ``` issue and answered in favour of the claimants in ``` ``` The New India Assurance Company Limited. v. ``` ``` Gopinathan K.K. and Others[2023 ICO 296]; and ``` ``` am certain that the declarations therein must apply to the claimants herein also. ``` ``` MACA NO. 2754 OF 2022 ``` ``` -7- ``` ``` Resultantly, this Appeal is allowed in part, ``` ``` solely deleting the compensation awarded by the ``` ``` learned Tribunal under the head “Pain and Suffering”, but confirming it in every other manner. ``` ``` At this time, Sri.Mathew Jacob, learned Senior Counsel, intervened to say that the rate ``` ``` of interest awarded by the Tribunal is 9%, which is very high. On this issue, I certainly find favour with his contention because, it is the ``` ``` normal rule that the rates will have to be fixed based on the prevalent economic scenario. The accident occurred in the year 2015, when the ``` ``` banking rates were much lower than 9%. I, ``` ``` therefore, propose to reduce the rate of ``` ``` interest to 8%, in tune with the then prevalent fiscal scenario. ``` ``` Consequently, the claimants/respondents will be at full liberty to recover the compensation, ``` ``` MACA NO. 2754 OF 2022 ``` **==> picture [22 x 9] intentionally omitted <==** ``` as modified by this Court, from the Insurance ``` ``` Company, along with interest at the rate of 8% ``` ``` (modifying the rate of interest of 9% granted by ``` ``` the Tribunal), from the date of claim until it ``` ``` is recovered.They will also be entitled to ``` ``` proportionate costs on the enhanced amount as ``` ``` ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance ``` ``` Company before the Tribunal, within a period of ``` ``` two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```