Salma and others v United India Insurance Company Limited

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ## `MACA NO. 184 OF 2021` ``` AGAINST THE AWARD IN OPMV 142/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## `OTTAPPALAM` ## `APPELLANTS/PETITIONERS 1 TO 6:` ``` 1SALMA AGED 45 YEARS W/O.LATE MUHAMMED ALI, RESIDING AT NEYYAPADATH HOUSE, KUMARAMPUTHUR, PALAKKAD DISTRICT. 2MUHAMMED RAMEES N.P., AGED 25 YEARS S/O.LATE MUHAMMED ALI, NEYYAPADATH HOUSE, KUMARAMPUTHUR, PALAKKAD DISTRICT. 3RAMSEENA N.P., AGED 25 YEARS D/O.LATE MUHAMMED ALI, PODUVACHOLA HOUSE, KOTTAPADAM, 3RD VILLAGE, PALAKKAD DISTRICT-678583. 4RISANA N.P., AGED 20 YEARS D/O.LATE MUHAMMED ALI, NEYYAPADATH HOUSE, KUMARAMPUTHUR, PALAKKAD DISTRICT. 5MUHAMMED RAMSHAD N.P., AGED 19 YEARS S/O.LATE MUHAMMED ALI, NEYYAPADATH HOUSE, KUMARAMPUTHUR, PALAKKAD DISTRICT. 6FATHIMAKUTTY, AGED 72 YEARS W/O.HAMSA N.P., M/O.LATE MUHAMMED ALI, NEYYAPADATH HOUSE, KUMARAMPUTHUR, PALAKKAD DISTRICT. BY ADVS. T.R.SUGUNAN ``` ``` MACA NO. 184 OF 2021 ``` ``` 2 ``` ``` SMT.P.S.GEETHA KUMARY SMT.M.M.BABY SMT.SATHI KUMARI S.S. ``` ## `RESPONDENT/2ND RESPONDENT:` ``` UNITED INDIA INSURANCE COMPANY LIMITED P.B.NO.12, D BLOCK, 1ST FLOOR, PAZHERI PLAZA, KODATHIPADI, MANNARKKAD, PALAKKAD, PIN-678582, REPRESENTED BY MANAGER. BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 184 OF 2021 ``` ``` 3 ``` ## `JUDGMENT` ``` On 20.09.2016, when Late Muhammed Ali was riding pillion on a motor cycle, it was hit by the offending vehicle driven in a rash and negligent manner, thus causing him very grievous injuries. Even though he was taken to the nearby hospital and treated, he succumbed to the injuries on 26.09.2016; and thereupon, the appellants - who are his wife, children and mother - filed OP(MV)No.142/2017 before the Motor Accidents Claims Tribunal, Ottappalam, seeking compensation for his death to an extent of Rs.50,88,000/- limited to Rs.50,00,000/-; but which has been allowed only to a sum of Rs. 14,72,178/-. 2.Smt.M.M.Baby – learned counsel for the ``` ``` MACA NO. 184 OF 2021 ``` ``` 4 ``` ``` appellant, pointed out that the main reason why ``` ``` the compensation in favour of the appellants is so low is because the learned Tribunal has adopted the notional income of the deceased, after his retirement, to be a mere Rs.7,000/-, ``` ``` even though it is established and accepted that his gross annual income, at the time of the accident, was Rs.5,68,637/-. ``` ``` 3.Smt.M.M.Baby then argued that the learned Tribunal has, further, reduced one-third from the income of the appellant, treating it to be his personal expenses; but that, going by the ``` ``` judgments inSarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 SC] and National Insurance Company Ltd. v. Pranay Sethi [2017 (4) ``` ``` KLT 662], only one-fourth could have been deducted because the deceased is survived by four ``` ``` MACA NO. 184 OF 2021 ``` ``` 5 ``` ``` dependents. She, however, conceded that he was employed in a permanent job and that he would retire only in the age of 56 and therefore, that the multiplier of 9 adopted by the learned Tribunal is without error. She, however, argued that, while adopting the notional income of the deceased, the learned Tribunal ought to have been ``` ``` guided byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], which postulates that a minimum of Rs.10,500/- should be so reckoned, even in the case of a person with unascertainable income in the year 2016 – when the accident occurred – with 10% future prospects being added to it, as per the ``` ``` judgment in Pranay Sethi (supra). She concluded her submissions saying that the learned Tribunal ``` ``` MACA NO. 184 OF 2021 ``` ``` 6 ``` ``` also have erred in granting only Rs.40,000/- towards compensation for “Loss of Consortium” to ``` ``` the 1[st] appellant - who is the wife of the ``` ``` deceased; but denying it to other appellants, who are equally entitled and who were, admittedly, ``` ``` depended upon him at the time of the accident. ``` ``` She thus prayed that this appeal be allowed. ``` ``` 4.In response, Sri.John Joseph Vettikkad – learned Standing Counsel for the Insurance ``` ``` Company, argued that the computations adopted by the learned Tribunal are without error; and thus prayed that this appeal be dismissed. ``` **==> picture [407 x 11] intentionally omitted <==** ``` contentions of the parties and have tested them on the worth of the evidence on record – copies ``` ``` of which have been made available to this Court by the learned counsel for the parties across the ``` ``` MACA NO. 184 OF 2021 ``` ``` 7 ``` ``` Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 6.On the question of notional income to be adopted in favour of the deceased, there is great ``` ``` force in the submissions of Smt.M.M.Baby because, even taking that he would have retired only when he attains the age of 56, in the absence of any evidence having been led by the Insurance Company ``` ``` to show that he was entitled to pension, the postulations as per Ramachandrappa(supra) ought to have been adopted in reckoning such. ``` ``` As again rightly argued by Smt.M.M.Baby, a figure of Rs.10,500/- ought to have been ``` ``` reckoned and 10% future prospects should have ``` ``` been added to it. If this had been done, ``` ``` certainly, the amount under the head “Loss of ``` ``` Dependency” would have been much higher than ``` ``` MACA NO. 184 OF 2021 ``` ``` 8 ``` ``` what has been presently granted. ``` ``` 7.As regards the compensation under the head “Loss of Consortium”, I fail to ``` ``` understand why the learned Tribunal denied it ``` ``` to appellants 2 to 6 - who are admittedly the children and mother of the deceased and when even the Insurance Company has no case that ``` ``` they were not depended upon him at the time of ``` ``` the accident.Obviously, therefore, each of them are entitled to Rs.40,000/- under the same. ``` ``` Resultantly, this appeal is partly allowed in the following manner: ``` ``` a)The compensation for “Loss of Dependency” is enhanced to Rs.16,93,733/- from Rs.13,12,583/- reckoning the notional income ``` ``` MACA NO. 184 OF 2021 ``` ``` 9 ``` ``` of the deceased to be Rs.10,500/-, with 10% ``` ``` future prospects added to it and deducting one-fourth towards personal expenses. ``` ``` b) The compensation under the head “Loss of Consortium” is enhanced to Rs.2,40,000/-, from Rs.40,000/-, at the rate of Rs.40,000/- per head in favour of each of the appellants, ``` ``` as per Pranay Sethi (supra). ``` ``` In all other heads, the compensation awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% from the date of filing of the claim until it is realised. ``` ``` MACA NO. 184 OF 2021 ``` ``` 10 ``` ``` The appellant will also be entitled to proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` SAS