High Court of KeralaSingle Judge2022-10-25Appeal partly allowed; enhanced compensation aw...

Sindhu Vibeesh and others v. Zachariah C.T. and Oriental Insurance Company Limited (MACA No. 210 of 2014)

Case / Petition Number:MACA No. 210 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji
Judgment Date: 2022-10-25
Court Decision / Holding: The appeal is allowed. The appellant is entitled to enhanced compensation of Rs.6,50,000 with interest at 8% per annum from the date of petition till realisation. All other findings of the Tribunal are confirmed. Delayed filing (136 days) was condoned; however, the claimant will be disentitled for interest on the enhanced amount for the 136-day delay. Any amount already paid shall be set off. The claimants must furnish bank account details within one month from receipt of a certified copy of the judgment; payment shall be made by NEFT/RTGS within one month thereafter; if bank details are not provided, no interest shall run on the enhanced amount after the period prescribed.
Final Disposition: Appeal partly allowed; enhanced compensation awarded with terms as stated; Tribunal findings otherwise upheld.

Parties to the Case

Appellants / Petitioners

Sindhu Vibeesh
Vishnu Vibeesh
Jishnu Vibeesh
Baby Aravindakshan

Respondents

Zachariah C.T.
Babu Varghese (deleted)
Oriental Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri Mathews K. Philip
• Smt. T. Manasy

Counsels for Respondents

• Sri A.R. George

Case Synopsis & Summary

This Kerala High Court MACA210/2014 concerns an appeal by the wife, two children and mother of Vibeesh, who died in a motor-vehicle accident on 03.09.2011. The Motor Accidents Claims TribunalErnakulam had awarded Rs.9,11,500 with 8% interest in O.P.(MV) No.1908/2011. Ex-parte as to respondents 1 and 2, the insurer contested the claim, while Ext. A7 (salary certificate) claimed Rs.12,000 monthly though not proved, leading the Tribunal to fix Rs.5,000/month for dependency calculations. Relying on Ramachandrappa, the court held that Rs.8,000 should be treated as the minimum monthly salary for 2011, adopted 25% future prospects, and corrected the multiplier to 15 (age 40). The court’s enhanced computation yielded loss of dependency Rs.13,50,000; loss of estate Rs.16,500; funeral expenses Rs.16,500; and loss of consortium Rs.1,76,000 (Rs.44,000 x 4), while discarding loss of love/affection and pain-suffering heads. Total enhanced compensation became Rs.15,59,000. The appeal was allowed; enhanced compensation of Rs.6,50,000 with 8% interest from the petition date till realisation was granted, subject to set-off for any paid amounts. Bank details must be provided for NEFT/RTGS transfer within a month; delay of 136 days was condoned with restricted interest on the enhanced amount during the delay.

Legal Doctrines & Maxims

Future prospects doctrine (25% uplift) as recognized in dependency calculations (Ramachandrappa v. The Manager, 2011)
Multiplier method for dependency calculation based on age (e.g., age 40 → multiplier 15)
Loss of estate and funeral expenses under Pranay Sethi guidelines
Loss of love and affection not to be awarded in addition to loss of consortium (Pranay Sethi doctrine)

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellants argued that Ext. A7 (salary certificate) shows Rs.12,000 monthly, but Ext. A7 was not proved since the issuing person was not examined; Tribunal erred in taking Rs.5,000 as monthly salary for dependency; relied on Ramachandrappa to fix Rs.8,000 as monthly salary for 2011. They contend 25% future prospects and multiplier 15; calculation yields loss of dependency of Rs.13,50,000; sought Rs.15,000 loss of estate; Rs.16,500 funeral; Rs.1,76,000 for loss of consortium (4 x Rs.44,000) with 10% increments and set aside love/affection and pain-suffering heads; total enhanced amount claimed; sought interest on enhanced amount with appropriate set-off for any already paid sums.

Contentions of Respondents

Respondents contended that the age, occupation and monthly income particulars of the deceased were incorrectly stated and the claim is excessive; Respondent No.3 (insurer) contested Ext. A7 and argued that the vehicle was insured with it as on 03.09.2011; pleaded that Ext. A7 was not proved and asserted that the Tribunal’s computation did not require modification.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd.	(2011) 13 SCC 236	Positive	Used to justify treating Rs.8,000 as the minimum monthly salary for dependency calculation (2011).
National Insurance Co. Ltd. v. Pranay Sethi and Ors.	(2017) (4) KLT 662	Positive	Cited for loss of estate and 10% increase; follows Pranay Sethi guidelines on heads of compensation.

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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 BASANT BALAJI`** ``` TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944 ``` ## **`MACA NO. 210 OF 2014`** ``` AGAINST THE AWARD DATED 03.05.2013 IN OP(MV) NO.1908/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SINDHU VIBEESH AGED 32,W/O.LATE VIBEESH, MAMALAKATTUMOLATH HOUSE, BHASKARAN COLONY IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682023 ``` ``` 2VISHNU VIBEESH AGED 13,S/O.LATE VIBEESH, REPRESENTED BY HIS MOTHER NATURAL GUARDIAN SINDHU VIBEESH, W/O.LATE VIBEESH,AGED 32, MAMALAKATTUMOLATH HOUSE, BHASKARAN COLONY IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682023 ``` ``` 3JISHNU VIBEESH AGED 9, S/O.LATE VIBEESH, REPRESENTED BY HIS MOTHER NATURAL GUARDIAN SINDHU VIBEESH, W/O.LATE VIBEESH,AGED 32, ``` ``` MAMALAKATTUMOLATH HOUSE, BHASKARAN COLONY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682023 ``` ``` 4BABY ARAVINDAKSHAN, AGED 67, W/O.LATE ARAVINDAKSHAN, MAMALAKATTUMOLATH HOUSE, BHASKARAN COLONY, IRUMPANAM P.O.,THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682023 ``` ``` BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY ``` M.A.C.A No. 210 OF 2014 2 ## **`RESPONDENTS/RESPONDENTS:`** - `1 ZACHARIAH C.T. S/O.THOMAS, CHIRAYATH HOUSE, ANTHIKAD P.O., THRISSUR DISTRICT-680001` - `2 BABU VARGHESE MANAGING PARTNER, BASIL CARRIERS, A.M.ROAD, PERUMBAVOOR. [DELETED]` ``` RESPONDENT NO.2 IS DELTED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 22.07.2021 IN I.A.NO.1/2019 IN MACA 210/2014 ``` - `3 ORIENTAL INSURANCE COMPANY LIMITED, THIRUVAMBADY, DEVASWOM BUILDING, ROUND WEST, THRISSUR-680001` ``` BY ADV SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A No. 210 OF 2014 3 ## **BASANT BALAJI, J.** ## **=========================== M.A.C.A. No. 210 of 2014 ============================ Dated this the 25[th] day of October, 2022** ## **JUDGMENT** The petitioners 1 to 4 in O.P.(MV) No.1908/2011 on the files of the Motor Accidents Claims Tribunal, Ernakulam are the appellants. The appeal is filed claiming enhancement of compensation against the award dated 03.05.2013 passed by the Tribunal. 2. The appellants are wife, two children and mother of Sri.Vibeesh who died in a motor accident on 03.09.2011 at 2 p.m. The deceased was walking along the southern side of the Ambalamugal-Puthiya road and when he reached Chithrappuzha, the lorry bearing Reg.No.KL-08-AR-9057 driven by the 2[nd] respondent in a rash and negligent manner came from east and hit him. As a result of injuries, he succumbed to death. Respondents are owner, driver and insurer of the offending vehicle. 3. Respondents 1 and 2 were set ex-parte. The 3[rd] respondent insurance company alone filed written statement contending that the offending vehicle was insured with it as on M.A.C.A No. 210 OF 2014 4 03.09.2011. The pleadings made in the petition regarding the age, occupation and monthly income of the deceased are incorrect. The compensation claimed is excessive and unjust. The Tribunal passed an award relying on Exts.A1 to A7 for a total compensation of Rs.9,11,500/- with interest @ 8% per annum from the date of petition to date of realisation of the entire amount. 4. The counsel for the appellant submits that Ext.A7 is the salary certificate issued by Malayil Group, Thiruvankulam on 25.01.2012 which shows that the deceased was earning Rs.12,000/- per month as salary. The Tribunal has taken the monthly salary as Rs.5,000/- for calculating compensation for loss of dependency. Though Ext.A7 was produced on the side of the appellants, the person who had issued Ext.A7 was not examined before Court and it is not proved. Hence, Ext.A7 was not taken into consideration for awarding compensation for loss of dependency. I fully agree with the finding of the learned Tribunal in respect of the the fact that Ext.A7 was not taken as the basis for calculating of loss of dependency. Going by the decision reported in **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd.** M.A.C.A No. 210 OF 2014 5 **[(2011) 13 SCC 236]** a person who has met with an accident and died in the year 2011, the minimum amount to be taken as monthly salary is Rs.8,000/-. In the absence of evidence, I am inclined to take Rs.8,000/- as the monthly salary of the deceased for calculating loss of dependency. Since the deceased was aged 40, 25% more is to be awarded as future prospects, the Tribunal has taken a future prospects @ 30%. So the percentage has come down from 30% to 25%. Adding 25% to the monthly salary of Rs.8000/- it comes to Rs.10,000/- per month. Though the Tribunal stated that the age of the deceased was 40 years, the Tribunal wrongly taken the multiplier as ‘14’ in the age group of 41-45. So the correct multiplier to be adopted is ‘15’‘ by taking the age of 40 years. The appellants are the wife, two children and mother of the deceased. Hence 1/4 has to be taken as personal and living expense of the deceased. So, the compensation for loss of dependency can be calculated as 10,000x12x15*3/4 =13,50,000/- The Tribunal has already awarded a sum of Rs.8,19,000/-. So, the balance amount is Rs.5,31,000/- 5. Towards loss of estate Tribunal has not awarded any sum. Going by the decision reported in **National Insurance** M.A.C.A No. 210 OF 2014 6 **Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the appellants are entitled to Rs.15,000/- as loss of estate and 10% increase i.e.Rs.16,500/- 6. Towards Funeral expenses against the claim of Rs.25000/- the Tribunal already awarded a sum or Rs.10,000/-. So, a sum of Rs.5000/- +10% increase i.e.Rs.16,500/- is awarded under the said head. 7. Towards loss of consortium the appellants being wife, two children and mother are entitled to sum of Rs.40,000/- each + 10% increase going by the decision reported in **Pranay Sethi (Supra).** When loss of consortium is awarded, loss of love and affection cannot be awarded over and above the compensation for loss of consortium. Hence the compensation awarded under the head ‘love and affection’ to the tune of Rs.40000/- is set aside. 8. As far the compensation for pain and suffering is concerned since Sri.Vibeesh died in the accident, his legal heirs are not entitled for compensation for pain and suffering. Hence, Rs.10000/- awarded under the said head is also set aside. 9. Accordingly, the following enhancements are made to the award made by the Tribunal: M.A.C.A No. 210 OF 2014 7 |Sl. No.|Head of Claim|Amt. Awarded by Tribunal (Rs.)|Amt. Enhanced in appeal (Rs.)| |---|---|---|---| |1.|Loss of dependency|8,19,000|13,50,000| |2.|Loss of estate|0|16,500| |3.|Funeral expense|10,000|16,500| |4.|Loss of consortium|30,000|1,76,000 (44,000x4)| |5|Loss of love and afection|40,000|0| |6|Pain and sufering|10,000|0| ||Total|9,09,000|15,59,000| ||Amount enhanced –15,59,000- 9,09,000= 6,50,000**/**-||| In the result, appeal is allowed and the appellant is entitled for enhanced compensation of Rs.6,50,000/- with interest @ 8% per annum from the date of petition till realisation. All other findings entered by the Tribunal stand confirmed. The appeal was filed with delay of 136 days. This Court while condoning the delay as per order dated 22.07.2021 held that ultimately the appeal is allowed and the compensation enhanced, petitioners would be disentitled for interest for a period of 136 days. Hence, the appellant will not be entitled for interest for the enhanced compensation for the delay of 136 M.A.C.A No. 210 OF 2014 8 days. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. **Sd/BASANT BALAJI JUDGE** nk