High Court of KeralaSingle Judge2019-12-11Appeal disposed of with modifications; enhanced...

Royal Sundaram Alliance Insurance Company Limited v. Jomol W/o Late Joshi; Anatt Rose (Minor) D/o Jomol; Annakkutty W/o Late Iype; Abdulla W/o Yousef; Basheer S/o Mammu

Case / Petition Number:MACA.No.548 OF 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2019-12-11
Court Decision / Holding: With the aforementioned modifications, the appeal stands disposed of. The insurer is directed to deposit enhanced amount of Rs. 88,000 along with 7.5% interest within two months; failure to deposit will attract 12% interest thereafter.
Final Disposition: Appeal disposed of with modifications; enhanced compensation awarded; insurer to deposit within two months; default interest provision invoked if delayed.

Parties to the Case

Appellants / Petitioners

Royal Sundaram Alliance Insurance Company Limited

Respondents

Jomol W/o Late Joshi
Anatt Rose (Minor) D/o Jomol
Annakkutty W/o Late Iype
Abdulla W/o Yousef
Basheer S/o Mammu

Legal Representation & Advocates

Counsels for Petitioners

• Mathew KuriaKose (Sr.)

Counsels for Respondents

• Mathews Jacob (Sr.)
• P. Jacob Mathew
• Krishna Prasad. S

Case Synopsis & Summary

This is an appeal under MACA No.548 of 2014 filed by Royal Sundaram Alliance Insurance Company Limited challenging the award of the Motor Accidents Claims Tribunal, Kalpetta, in OP(MV) No.370 of 2012 (dated 20-11-2013) for the death of Joshy, a driver, due to an electric shock when unloading sand at Thrissilery. The deceased worked as a driver for a lorry, and the accident occurred when the platform of an offending tipper lorry touched a high-tension line. The legal representatives of Joshy (widow, minor child, and mother) claimed about Rs 10 lakh in compensation for losses across several heads, including loss of dependency, loss of love and affection, and funeral expenses. The Tribunal awarded Rs 10,40,000, with a detailed headwise breakdown, and interest at 7.5% from the date of claim. The insurer challenged several components, notably the treatment of income (Rs 4,000 vs Rs 15,000), the deduction for personal living expenses (1/3 vs 3/4), and the amounts for non-pecuniary heads such as loss of love and affection and funeral expenses. The State High Court examined the evidence, found the income assumed by the Tribunal to be too low, and adopted the Pranay Sethi framework, including 40% future prospects and a 15-year multiplier, while applying a 1/3 deduction toward personal living expenses. The Court modified the computation and directed payment of enhanced amounts with interest, ultimately disposing of the appeal with modifications.

Provisions of Law Cited

Order 41 Rule 33, Civil Procedure CodeMinimum Wages Act (Kerala applicability)

Legal Doctrines & Maxims

Pranay Sethi principles (as guiding framework for loss of dependency and future prospects)

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that heads like loss of consortium, loss of love and affection, and funeral expenses are inflated and not aligned with the Pranay Sethi framework. It also points out that the Tribunal wrongly adopted a notional income of Rs. 4,000 instead of Rs. 15,000 and used a 3/4 deduction for personal expenses, instead of 1/3, urging a reduction of certain heads and advocating strict adherence to policy terms and the principles of a just compensation.

Contentions of Respondents

Claimants contend that the Tribunal’s income assessment is understated and that the Pranay Sethi principles (notably future prospects and dependency calculation) should be applied to enhance compensation. They argue for applying effective adjudication principles (Order 41 Rule 33 as a guide, albeit not strictly). They seek higher awards for loss of dependency, love and affection, and funeral expenses based on standard norms for a driver’s income and the spouse/children’s financial needs.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	The High Court endorses the Pranay Sethi framework for calculating compensation, applying 40% future prospects and 1/3 deduction for personal living expenses, adjusting loss of dependency accordingly.

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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 AMIT RAWAL** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **MACA.No.548 OF 2014** **AGAINST THE AWARD IN O.P.(MV) NO.370/2012 DATED 20-11-2013 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/3RD RESPONDENT:** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS MANAGER, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600 002.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2:** - **1 JOMOL W/O.LATE JOSHI, KULATHINGAL HOUSE, KAITHAKKAL, PANAMARAM P.O, CHERUKATTOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT. 673 320.** - **2 ANATT ROSE (MINOR) D/O.JOMOL, KULATHINGAL HOUSE, KAITHAKKAL, PANAMARAM P.O, CHERUKATTOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT. 673 320.** - **3 ANNAKUTTY W/O.LATE IYPE, KULATHINGAL HOUSE, KAITHAKKAL, PANAMARAM P.O, CHERUKATTOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT. 673 320.** - **4 ABDULLA W/O.YOUSEF, PUNATHIL HOUSE, ANJUKUNNU VILLAGE, NEERAVARAM P.O, PANAMARAM, MANANTHAVADY TALUK. 673 320.** - **5 BASHEER S/O.MAMMU, PADAYOTH HOUSE, PANAMARAM P.O, MANANTHAVADY TALUK. 673 318.** **BY ADVS. R1 TO R3 BY ADV.MATHEW KURIAKOSE R4 & R5 BY ADV.KRISHNA PRASAD. S** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.548 OF 2014 2 ## JUDGMENT The appellant/3[rd] respondent insurance company, being insurer of lorry bearing registration No.KL-12/E-9045, is in appeal against the award of the Motor Accidents Claims Tribunal, Kalpetta, in OP(MV) No.370 of 2012 dated 20.11.2013. The legal representatives, viz., the widow, minor child and mother of late Joshy, aged 37, filed the claim petition on the premise that on 05.10.2011 the deceased Joshy, who was driver by profession while working in the lorry bearing registration No.KL-10/A-3202 had brought sand to the work site of Tribal Hostel at Thrissilery, after having unloading the sand, when reached near the tipper lorry (offending vehicle) driven by the 1[st] respondent, while unloading the load, the platform of the tipper lorry touched the high tension electric wire and as a result of which he received electric shock later on succumbed to his injuries. 2. It was asserted that the accident was caused due to the rash and negligent driving of the tipper lorry MACA.No.548 OF 2014 3 (offending vehicle) and in such circumstances, claimed compensation of Rs.10,00,000/- as he was earning a sum of Rs.15,000/- per month. 3. Before the Tribunal, the 1[st] and 2[nd] respondents filed joint written statement raised objections qua maintainability and denied the allegation of negligence and rashness of offending vehicle and in the alternative, taken the plea of indemnification. The 3[rd] respondent contested the claim petition on various grounds including the exorbitant compensation subject to the terms and conditions of the insurance policy. 4. Claimants, in support of the averments brought on record Exts.A1 to A6 including the charge sheet served upon the 1[st] respondent in respect of Ext.A1 FIR, Ext.A2 copy of scene mahazar. On the other hand, the insurance company did not lead in any evidence. In the light of the aforementioned evidence, the Tribunal awarded a compensation of Rs.10,40,000/- under various heads, which reads as follows: MACA.No.548 OF 2014 4 |Sl. No.|Head of claim|Amount claimed (in Rupees)|Amount awarded (in Rupees)|Basis-vital details in a nut shell| |---|---|---|---|---| ||Income/Notional income|10,000.00|6,000.00|Nil| |1|Loss of earning (Total)|` Nil|` Nil|Nil| |2|Loss of earning (Partial)|` Nil|` Nil|Nil| |3|Medical and miscellaneous expenses|` Nil|` Nil|Nil| |4|Future treatment|` Nil|` Nil|Nil| |5|Bystander expenses|` Nil|` Nil|Nil| |6|Transportation expenses|` 2,000.00|` Nil|Nil| |7|Loss of life|` 25,000.00|` Nil|Nil| |8|Damage to clothing, etc.|` 2,000.00|` Nil|Nil| |9|Pain and suffering|` 20,000.00|` Nil|Nil| |10|Loss of consortium|`1,00,000.00|`1,00,000.00|Nil| |11|Loss of love and affection|`1,00,000.00|`1,00,000.00|Nil| |12|Loss of estate|`2,00,000.00|` 5,000.00|Nil| |13|Funeral expenses|` 25,000.00|` 25,000.00|Nil| |14|Loss of dependency|`8,00,000.00|`8,10,000.00|6000 x ¾ x 12 x 15| |15|Loss of amenities and pleasure in applicant's life|`2,00,000.00|` Nil|Nil| |16|Loss of future income|`2,00,000.00|` Nil|Nil| ||TOTAL|16,74,000/- Claim limited to `10,00,000/-|`10,40,000.00|`10,40,000.00 along with interest at the rate of 7.5% p.a. From the date of making the claim till the date of payment| MACA.No.548 OF 2014 5 5. Sri.Mathews Jacob, the learned senior counsel would submit that the compensation under the columns of loss of consortium, loss of love and affection and funeral expenses is on the higher side and not in consonance with the judgment in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]. Though the insurance company had taken the plea of exoneration owing to any involvement of people and it was a sheer negligence of the deceased but since the 1[st] respondent has been charge sheeted in an FIR, the aforementioned plea is not pressed. It is also not disputed that the income of the deceased was taken as Rs.4,000/- instead of Rs.15,000/-. Instead of applying the deduction of 1/3 the Tribunal took it as ¾. As the deceased had left behind the widow, daughter and mother, it should have been 1/3. 6. Per contra, the learned counsel appearing on behalf of the claimant submits that though the insurance company has not chosen to file the cross appeal, the income assessed and taken by the Tribunal is on a lower side. The provisions of Order 41 Rule 33 are not strictly MACA.No.548 OF 2014 6 applied taking into consideration the plea of enhancement of the income of the deceased for the effective adjudication of the appeal. Claimants are, left in lurch and had been deprived of income as the deceased was the sole bread earner. As far as the compensation awarded under the heads of loss of consortium, loss of estate etc., the ratio and the principles culled out in Pranay Sethi's case (supra) were not disputed. 7. Having heard the learned counsel for the parties and appraised the paper books, I am of the view that the award of the Tribunal is liable to be modified and do so in the following manner. 8. No doubt, the claimants have not preferred a cross appeal challenging the finding of the Tribunal vis-avis the income of the deceased as Rs.4,000/- against a claim of Rs.15,000/- though strict provisions of order 41 Rule 33 would not apply but the principles for effective adjudication and being beneficial can also be applied. The fact that the deceased, at the time of accident, was working as driver has not been disputed. It cannot be MACA.No.548 OF 2014 7 accepted that the deceased, driver of a big lorry, at the time of the accident, in the year 2011 would have been earning a meagre amount of Rs.4,000/- against the income prescribed under the Minimum Wages Act, as applicable to Kerala. I cannot remain unmindful of the fact that compensation under the column, as noticed above, to the extent of Rs.1,00,000/- towards loss of love and affection is on the higher side. But keeping in view the element of future expenses, the Tribunal should have been taken it as 40%. By taking the notional income as Rs.6,000/- and 40% towards future expenses, it will come to Rs.8,400/- ((6,000 x 40/100) + 6,000). The deceased was aged 37 years, at the time of the accident, the multiplier of 15 applied by the Tribunal is correct. However, the reduction shall be 1/3 towards personal and living expense, instead of ¾. Towards loss of consortium an amount of Rs.60,000/- is reduced, resulting in an amount of Rs.40,000/ - (1,00,000 – 60,000). Towards loss of love and affection, an amount of Rs.50,000/- is reduced, resulting in an amount of Rs.50,000/ - (1,00,000 – 50,000). Towards loss of estate, an MACA.No.548 OF 2014 8 amount of Rs.15,000/- is granted, resulting in an additional compensation of Rs.10,000/ - (15,000 – 5,000). Towards funeral expenses, an amount of Rs.10,000/- is reduced, resulting in an amount of Rs.15,000/ - (25,000 – 10,000). Towards loss of dependency, the amount will be Rs.10,08,000/- (8,400 x 12 x 15 x 2/3). The Tribunal awarded an amount of Rs.8,10,000/- towards loss of dependency. By deducting the same, the appellant is entitled for an additional amount of Rs.1,98,000/ - under the head. With the aforementioned modifications, the appeal stands disposed of. The insurance company is directed to deposit the enhanced amount of Rs.88,000/- (1,98,000 + 10,000 - 60,000 - 50,000 - 10,000) (Rupees Eighty eight thousand only) along with 7.5% interest, within a period of two months from the date of receipt of a copy of this judgment, failing which shall entail interest @ 12%. ## Sd/AMIT RAWAL, JUDGE **Skk//091219**