Sasidharan Pillai & Kamalakshi v. The Branch Manager, National Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ## `MACA NO. 2149 OF 2017` ``` AGAINST THE AWARD IN OPMV 786/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM/ V ADDL.MACT ``` ## `APPELLANTS/PETITIONERS 1 AND 2` ``` 1SASIDHARAN PILLAI S/O BHASKARAN PILLAI,AGED 62 YEARS,KUTHIARAPANTHI THEKKATHIL,KADAPPA,MYNAGAPPALLY.P.O,KARUNAGAPPALLY,KOLLAM DISTRICT. 2KAMALAKSHI W/O.SASIDHARAN PILLAI,AGED 61 YEARS,KUTHIRAPANTHI THEKKATHIL,KADAPPA,MYNAGAPPALLY.P.O,KARUNAGAPPALLY,KOLLAM DISTRICT. BY ADVS. SRI.K.SIJU SMT.RENY ANTO ``` ## `RESPONDENT/3RD RESPONDENT:` ``` THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD,HOSPITAL ROAD,KOLLAM-691001. BY ADV SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2149 OF 2017 ``` ``` 2 ``` ## `JUDGMENT` ``` This matter is of the year 2017 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on ``` ``` record, handed over by them across the Bar. ``` ``` 2.I, therefore admit this Appeal and proceed to dispose it of finally, with the ``` ``` consent of both sides. ``` ``` 3.The hapless parents of a son, who ``` ``` unfortunately died in a road accident on ``` ``` 30.06.2011, when the motor cycle being ridden by him was hit by the offending vehicle driven in a ``` ``` rash and negligent manner – has approached this ``` ``` Court impugning the Award of the Motor Accidents Claims Tribunal, Kollam, in OP(MV)No.786 of ``` ``` MACA NO. 2149 OF 2017 ``` ``` 3 ``` ``` 2012, on the ground that the compensation awarded by them for the death of their son is grossly inadequate. ``` ``` 4.Smt.Anjana Kannath, learned counsel appearing for the appellants, pointed out that the primary reason why the compensation awarded by the learned Tribunal is so low is because it has incorrectly adopted the notional income of the deceased to be a mere Rs.5,000/-, even when ``` ``` there is evidence on record to show that he was doing real estate business and agency work and earning much more than that. She then argued that the compensation awarded under the head “Funeral Expenses” is lesser than what ought to have been legally granted; while a minimum amount of Rs.40,000/- each ought to have been granted to the appellants towards “Loss of Consortium”. She thus prayed that this appeal be ``` ``` MACA NO. 2149 OF 2017 ``` ``` 4 ``` ``` allowed in the above manner. ``` ``` 5.Sri.P.Jacob Mathew – learned Standing Counsel appearing for the Insurance Company, on the other hand, submitted that the computations adopted by the learned Tribunal are without error; and prayed that this appeal be dismissed. ``` ``` 6.I have examined the afore rival ``` ``` contentions of the parties as afore 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 Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 7.On the question of notional income, I must say that there is great force in the submissions of the appellants because, going by Ramachandrappa v. Manager, Royal Sundaram ``` ``` MACA NO. 2149 OF 2017 ``` ``` 5 ``` ``` Alliance Insurance Company Limited.[(2011) 13 ``` ``` SCC 236], even in the case of a person with an unascertainable income in the year 2011, the minimum notional figure has been standarised to be Rs.8,000/-. Though the appellants stated before the Tribunal that their son was doing real estate business and agency work, they were unable to lead any evidence to prove his income therefrom; and am, therefore, of the view that the postulations in Ramachandrappaought to be accepted. ``` ``` 8.That said, the future prospects of 50% added by the learned Tribunal to the income of the deceased does not appear to be correct because, the Hon’ble Supreme Court, in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) ``` ``` KLT 662], has made it clear that except if the deceased is proved to be working in a permanent ``` ``` MACA NO. 2149 OF 2017 ``` ``` 6 ``` ``` job, 50% future prospects cannot be added. In the case at hand, the deceased was, admittedly, self employed; and therefore, going by Pranay Sethi(supra), only 40% would have been reckoned. ``` ``` 9.Moving on, the appellants are certainly entitled to Rs.40,000/- each towards the compensation for “Loss of Consortium”, as per Pranay Sethi(supra); and I do not see why the learned Tribunal has declined to grant the same, though I notice that it has granted Rs.20,000/- ``` ``` under the head “Loss of Love and Affection”, which is impermissible, again going by the said judgment. ``` ``` 10.The above being said, I notice that an ``` ``` amount of Rs.25,000/- has been granted under the ``` ``` head “Pain and Suffering” and another Rs.20,000/- under the head “Loss of Care and ``` ``` MACA NO. 2149 OF 2017 ``` ``` 7 ``` ``` Protection”. Both these will have to be deleted ``` ``` in view of the binding precedents, including ``` ``` United India Insurance Company Ltd. v. Satinder ``` ``` Kaur @ Satwinder Kaur [(2021) 11 SCC 780]; though, ``` ``` an amount of Rs.15,000/- will have to be added towards “Loss of Estate” and an additional ``` ``` Rs.5,000/- added under the head “Funeral ``` ``` Expenses”, as per Pranay Sethi (supra). ``` ``` In the afore circumstances, this appeal is ``` ``` partly allowed in the following manner: ``` ``` a) The compensation for dependency is ``` ``` enhanced to Rs.12,09,600/-, reckoning the notional income of the deceased to Rs.8,000/- per month, adding 40% future prospects added to it and deducting one – half towards personal expenses. ``` ``` b)The compensation for “Care and ``` ``` protection”, and “Pain and Suffering” and “Loss ``` ``` MACA NO. 2149 OF 2017 ``` **==> picture [8 x 9] intentionally omitted <==** ``` of Earnings” is deleted; and instead an amount of Rs.80,000/- is granted under the head compensation for “Loss of Consortium”. ``` ``` c)In addition, an amount of Rs.15,000/- is ``` ``` awarded for “Funeral Expenses”. ``` ``` d) The amount of compensation under the head ``` ``` “Loss of Estate” is reduced to Rs.15,000/- from Rs.20,000/- now awarded. ``` ``` 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 modified by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% (modifying the rate of interest of 9% granted by the Tribunal, in view of the escalation granted by ``` ``` MACA NO. 2149 OF 2017 ``` ``` 9 ``` ``` this Court) from the date of filing of the claim until it is realised. ``` ``` However, while calculating the interest, ``` ``` the period of 109 days - being the delay ``` ``` caused by the appellant in filing this ``` ``` appeal - shall stand excluded. ``` ``` 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 ```