Prahladan and Others v. The New India Assurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944 MACA NO. 461 OF 2017 ``` ``` AGAINST THE JUDGMENT IN OP(MV)388/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , TALIPARAMBA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1PRAHLADAN S/O.AMBOOTTY, KANNOTHKARAN, AGED 44 YEARS, MANIKKAL, THIMIRI AMSOM, THADIKKADAVU P.O., VIA CHAPPARAPADAVU, TALIPARAMBA TALUK, KANNUR DISTRICT. ``` ``` 2ANJU AGED 21 YEARS D/O.KANNOTHKARAN PRAHALADAN, AGED 21 YEARS, MOTTAMMAL, MANIKKAL, THIMIRI AMSOM, KANNOTHKARAN, THIMIRI AMSOM, P.O.THADIKKADAVU. 3ATHIRA AGED 14 YEARS D/O.KANNOTHKARAN PRAHLADAN, AGED 14 YEARS, MINOR THROUGH GUARDIAN NEXT FRIEND FATHER PRAHLADAN, S/O.AMBOOTTY, KANNOTHKARAN, THIMIRI AMSOM, P.O.THADIKKADAVU. ``` ``` 4ATHUL AGED 9 YEARS S/O.KANNOTHKARAN PRAHLADAN, MINOR, AGED 9 YEARS, THROUGH GUARDIAN NEXT FRIEND FATHER PRAHLADAN,S/O.AMBOOTTY, KANNOTHKARAN, THIMIRI AMSOM,P.O.THADIKKADAVU. ``` ``` BY ADV SMT.M.R.JAYALATHA ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE COMPANY LIMITED, KANNUR KANNUR BRANCH, SADHOO BUILDING, NEAR MUNICIPAL BUS STAND, KANNUR, KANNUR DISTRICT-670001. ``` ``` BY ADV SRI.VPK.PANICKER ``` ## **MACA.No.461 /2017** **==> picture [20 x 9] intentionally omitted <==** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **MACA.No.461 /2017** ..3.. ## **JUDGMENT** The husband, children and mother of Sreeja - who unfortunately died in a road accident while the jeep in which she was travelling capsized on 5.2.2011 - are the appellants before this Court. 2. The appellants filed OP(MV)No.388/08 before the Motor Accidents Claims Tribunal, Taliparamba (‘Tribunal’ for short), seeking compensation to the extent of Rs.15,00,000/-; but which has been awarded only to the extent of Rs.14,09,000/-. They thus assail the sums awarded by the Tribunal under various heads, on the ground that the notional income adopted for the deceased was woefully insufficient, while the multiplier adopted was also incorrect. 3. Smt.M.R.Jayalatha - learned counsel for the appellants, pointed out that the deceased was only 34 years in age at the time of the accident and her unfortunate death; and that the appellants had claimed only Rs.6,000/- per month as her notional income, even though Exts.A7 and A8 documents would show her capacity to earn was much higher. She submitted that, therefore, the learned Tribunal ought to have **MACA.No.461 /2017** ..4.. adopted Rs.8,000/-, being the standardized income postulated by the Hon’ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company**_ _**Ltd.**_ [(2011) 13 SCC 236]; but that instead of doing so, reduced it to Rs.4,000/- and thus granted compensation under the head ‘Loss of Dependency’ only to the extent of Rs.8,10,000/-, that too, because the multiplier adopted was 15 instead of 16, as required under _**Sarla Varma v. Delhi Transport Corporation**_ [2010 (2) KLT 802 (SC)]. She then pointed out that the compensation under the head ‘Loss of Consortium’ is also incorrect because, same has been granted by the Tribunal only in favour of two amongst the appellants, but denied to others, without any reasonable cause. She thus prayed that the impugned Award, to the extent assailed, be set aside and the compensation enhanced. 4. In response, Sri.V.P.K.Panicker – learning Standing Counsel for the Insurance Company, submitted that when the claimants had sought only Rs.6,000/- as the notional income of the deceased, they cannot now claim Rs.8,000/- based on _**Ramachandrappa**_ ( _supra_ ). He further contended that, the amount granted by the Tribunal under the heads ‘Funeral Expenses’ and ‘Loss of Estate’ are in excess, going by **MACA.No.461 /2017** ..5.. ## _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]; while no amount could have been granted for ‘Loss of Love and Affection’ and ‘Pain and Sufferings’ going by _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur**_ [(2021) 11 SCC 780]. 5. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 6. As regards the notional income of the deceased, I find force in the submissions of Smt.M.R.Jayalatha because, had no evidence been lead by the claimants, the Tribunal ought to have taken Rs.8,000/- per month as her income going by _**Ramachandrappa**_ ( _supra_ ). Therefore, merely because they have claimed a lesser amount, it would not be just and proper to deny at least the figures as postulated in the afore precedents, particularly, because the Hon’ble Supreme Court has, in a subsequent judgment, namely, _**Minu Rout & another v. Satya Pradyumna Mohapatra & Ors**_ [(2013) 10 SCC 695], declared that, in the case of a death, the estimation of income by the claimants would only be on a rough estimate **MACA.No.461 /2017** ..6.. and cannot be taken to be the final figure, especially if the Tribunal finds that there are reasons to grant a higher figure. 7. In the case at hand, as I have already said above, _**Ramachandrappa**_ ( _supra_ ) would have enabled the appellants to claim Rs.8,000/- per month as the notional income of the deceased, even had no evidence been given. Therefore, merely because they had stated a lesser figure, the Tribunal could not have refused to adopt the standardized income, or to have reduced it in any manner, as has been done in this case. I am, therefore, of the firm view that the notional income of the deceased ought to have been taken as Rs.8,000/- per month; and adding future prospects of 40% and multiplying it by the relevant multiplier - namely 16, the compensation under the head ‘Loss of Dependency’ would have to be revised to Rs.16,12,800/-. 8. That said, there is great force in the submissions of Sri.V.P.K.Panicker that, the compensation under the heads ‘Funeral Expenses’ and ‘Loss of Estate’ ought to have been confined to Rs.15,000/- each. This is certainly in tune with the judgment of the Hon’ble Supreme Court in _**Pranay Sethi**_ ( _supra_ ). Similarly, his argument that no compensation should have been given under the head of ‘Pain and Sufferings’ also **MACA.No.461 /2017** ..7.. ## appeals to me, being guided by _**Satwinder Kaur**_ ( _supra_ ). 9. In addition to the above, I am of the firm view that even though not claimed, the claimants are entitled to expenses for bystander of the deceased, when he was in the hospital for a conceded period of 26 days. I, therefore, propose Rs.10,400/- towards ‘bystanders expenses’, estimating the _per diem_ charges to be Rs.400/-, in the year 2011. In the afore circumstances, this appeal is allowed in the following manner: a. The compensation under the head ‘Loss of Dependancy’ is enhanced to Rs.16,12,800/-; b. The compensation under the head ‘Funeral Expenses’ is reduced to Rs.15,000/-; c. The compensation under the head ‘Loss of Estate’ is reduced to Rs.15,000/-; d. The compensation granted by the Tribunal under the heads ‘Compensation for Love and Affection’ and ‘Pain and Sufferings’ is deleted. e. The compensation under the head ‘Loss of Consortium’ is revised to be Rs.1,60,000/-, from Rs.1,00,000/-, as granted by the Tribunal; f. In addition, an amount of Rs.10,400/- is granted as **MACA.No.461 /2017** ..8.. ‘Bystanders expenses’. In all other heads, the compensation granted by the Tribunal remains unaltered. Needless to say, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 9% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ACR