High Court of KeralaSingle Judge2022-11-25Appeal allowed to the extent indicated; enhance...

Sini and others v Kagna Tours & Travels Ltd. and others (MACA No. 555 of 2015)

Case / Petition Number:MACA No. 555 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2022-11-25
Court Decision / Holding: The appeal is allowed to the above extent. The enhanced compensation is Rs.15,65,000 as per the tabulated heads (with adjustments: loss of dependency increased from 10,12,500 to 13,50,000; funeral expenses reduced to 15,000; loss of estate increased to 16,500; pain and suffering removed; loss of love and affection removed; loss of consortium capped at Rs.40,000 per dependent; total enhanced amount Rs.2,66,500). Interest on enhanced amount to be paid at 5% from the date of petition; any amount already paid to be set off; bank details to be provided within two months for NEFT/RTGS transfer; if deposit is not made timely, interest on the enhanced amount will continue at the tribunal rate. The insurer is to deposit the enhanced amount as directed. The court retains the earlier award insofar as not modified by the above. The appeal is allowed to the extent indicated.
Final Disposition: Appeal allowed to the extent indicated; enhanced compensation and directions for payment and interest.

Parties to the Case

Appellants / Petitioners

Sini
Ammu (Minor)
K.N. Thampuran
Shanthamma

Respondents

Proprietrix, M/S Kagna Tours & Travels Ltd., C-1103 J, Nehru Stadium, Kaloor, Cochin - 682 017
Biju Varghese S/O Varghese, Thekkethanathu House, Onakoor, Pampakuda, Muvattupuzha P.O., PIN - 686 661
The Divisional Manager, Divisional Office, Oriental Insurance Co. Ltd., 2nd Floor, Marthoma Buildings, Thiruvalla, Issuing Office: Branch Office, Deepthi Buildings, Pallimukku, Ernakulam - 682 016

Legal Representation & Advocates

Counsels for Petitioners

• K.S. Hariharaputhran
• Dipu James
• George Mathew
• M.D. Sasikumaran
• Sunil Kumar A.G

Counsels for Respondents

• N.S. NajeeB

Case Synopsis & Summary

This MACA arises from a common award in O.P.(MV) No.182/2008 of the Motor Accidents Claims Tribunal, Pathanamthitta, challenging the quantum of compensation awarded to the claimants following a road accident in which a Maruti van collided with a tempo traveller, resulting in the death of Biju and injuries to others. The appellants are the legal heirs/claimants representing the deceased and seek enhancement of the compensation on grounds that the Tribunal erred in determining the deceased’s monthly income, the scope for future prospects, and several heads of damages including funeral expenses, loss of love and affection, pain and suffering, loss of estate and loss of consortium. The respondents, notably the insurer, contest the quantum, arguing that the Tribunal relied on an inflated overseas salary and that future prospects should be limited to 40% as per Pranay Sethi, with adjustments to other heads of compensation. The High Court undertakes a reassessment by examining Ext.A8 (salary certificate) showing 1,400 SAR per month and, applying an exchange rate, contends that Rs.10,000 per month is a more appropriate figure given the claimant’s skill as a welder and the 2007 context (Ramchandrappa). It adopts 40% for future prospects in line with Pranay Sethi and reduces several heads in light of Oriental Insurance v. Kahlon and related precedents (e.g., pain and suffering, loss of love and affection, and loss of consortium). The result is an enhanced overall compensation of Rs.15,65,000, with directions on interest, deposit, and transfer (NEFT/RTGS). The appeal is allowed to that extent.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the deceased was employed as a welder in Saudi Arabia. Ext.A8 shows a monthly salary of 1,400 SAR; with October 2007 exchange rate of Rs.10.59, the approximate salary was Rs.14,000 per month. The respondents contended that the remuneration should reflect what could be earned by a similarly placed worker in India. The Court should reckon the monthly income at Rs.10,000, given the claimant’s skill as a welder and the 2007 context (citing Ramchandrappa). Future prospects were argued on the basis of the larger framework laid down in Pranay Sethi; the head of loss of consortion, love and affection, funeral expenses and pain and suffering were also contested, with the insurer seeking reductions in several heads.

Contentions of Respondents

The insurer contended that the monthly income should be based on Indian wages and that future prospects should be limited to 40% per Pranay Sethi; funeral expenses should be reduced; loss of love and affection and loss of consortium should be adjusted; pain and suffering should be limited in light of Oriential v. Kahlon. It urged that the Tribunal’s award of Rs.1,00,000 under loss of consortium and Rs.1,40,000 under loss of love and affection be reconsidered and that the total compensation be recalibrated accordingly.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) KHC 4675	Positive	Used to justify the monthly income benchmark (Rs.10,000) given the worker’s skill and 2007 context.
National Insurance Company Limited v. Pranay Sethi and others	(2017) 16 SCC 680	Positive	Applied the 40% future prospects framework from Pranay Sethi, not 50%.
Oriental Insurance Company Limited v. Kahlon (deceased) through his legal representative Narinder Kahlon Gosakan and another	AIR 2021 SC 3913	Positive	Used to justify reduction/removal of pain and suffering head in light of the later Supreme Court guidance.

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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 C. JAYACHANDRAN** **FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022/4TH AGRAHAYANA, 1944 MACA NO. 555 OF 2015** **OP(MV)No.182/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** **PATHANAMTHITTA DTD.03.06.2014** **APPELLANTS/PETITIONERS:** 1 SINI AGED 33 YEARS W/O.LATE BIJU, KUTTIYIL HOUSE, THALACHIRA ERAM P.O., MALAYALAPUZHA, PATHANAMTHITTA. 2 AMMU (MINOR) AGED 12 YEARS D/O.LATE BIJU, KUTTIYIL HOUSE, THALACHIRA ERAM P.O., MALAYALAPUZHA, PATHANAMTHITTA (2ND MINOR APPELLANT REPRESENTED BY MOTHER AND NATURAL GUARDIAN, THE 1ST APPELLANT). 3 K.N.THAMPURAN AGED 68 YEARS S/O.NARAYANAN, KUTTIYIL HOUSE, THALACHIRA ERAM P.O., MALAYALAPUZHA, PATHANAMTHITTA. 4 SANTHAMMA AGED 65 YEARS W/O.K.N.THAMPURAN, KUTTIYIL HOUSE, THALACHIRA ERAM P.O., MALAYALAPUZHA, PATHANAMTHITTA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SUNIL KUMAR A.G M..A.C.A.No.555 of 2015 ..2.. ## **RESPONDENTS/RESPONDENTS:** 1 PROPRIETRIX, M/S.KAGNA TOURS & TRAVELS LTD., C-1103 J, NEHRU STADIUM, KALOOR, COCHIN - 682 017. 2 BIJU VARGHESE S/O.VARGHESE, THEKKETHANATHU HOUSE, ONAKOOR, PAMPAKUDA, MUVATTUPUZHA P.O., PIN - 686 661. 3 THE DIVISIONAL MANAGER DIVISIONAL OFFICE, ORIENTAL INSURANCE CO.LTD., 2ND FLOOR, MARTHOMA BUILDINGS, THIRUVALLA, ISSUING OFFICE: BRANCH OFFICE, DEEPTHI BUILDINGS, PALLIMUKKU, ERNAKULAM - 682 016. BY ADV SRI.N.S.NAJEEB **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M..A.C.A.No.555 of 2015 ..3.. ## **C.JAYACHANDRAN, J.** -------------------------------------------M.A.C.A.No.555 of 2015 --------------------------------------------Dated this the 25[th] day of November, 2022 ## **JUDGMENT** This appeal is carried by the claimants in O.P. (M.V.)No.182/2008 of the Motor Accidents Claims Tribunal, Pathanamthitta. A common award passed in the said O.P. along with other original petitions is under challenge in this appeal, essentially on the question of insufficiency of the quantum of compensation awarded by the Tribunal. One Biju.T. and six others were travelling in a Maruthi van, which vehicle collided with a tempo traveller. Mr.Biju succumbed to injuries and his legal heirs are the claimants in O.P.(M.V.)No.182/2008, who are the appellants herein. **2.** Heard Sri.George Mathew, learned counsel for the appellants and Sri.N.S.Najeeb, learned counsel for the 3[rd] respondent/insurance company. Perused the records. M..A.C.A.No.555 of 2015 **==> picture [22 x 8] intentionally omitted <==** **3.** The solitary point argued by the learned counsel for the appellants was on the question of monthly income of the deceased, who was working as a Welder in Saudi Arabia at the time of accident. Ext.A8 salary certificate was produced indicating a monthly salary of 1,400 Saudi Riyal. Learned counsel for the appellants handed over a document indicating the exchange rate of Saudi Riyal pertaining to October, 2007 when the accident took place, as per which Rs.10.59 is the exchange rate of one Saudi Riyal. Calculated thus, the monthly salary of the deceased was Rs.14,000/approximately. This was seriously opposed by the learned counsel for the insurance company pointing out that what is liable to be reckoned is the salary, which could be fetched by a similarly placed person in India. **4.** Striking a balance between the submissions made by the learned counsel appearing for both sides, this Court is of the view that it would be reasonable to reckon the monthly salary at Rs.10,000/-. This Court notices that the index available in M..A.C.A.No.555 of 2015 ..5.. ## **Ramchandrappa v. Manager, Royal Sundaram Aliance** **Insurance Company Limited** [2011 KHC 4675] pertaining to the year 2007 is Rs.6,000/- per month. This, coupled with the fact that the claimant was skillfully employed as a Welder, would justify reckoning the monthly income at the rate specified above. The point is concluded accordingly. **5.** As against the above claim of the appellants/claimants, learned counsel for the insurance company pointed out that future prospects cannot be reckoned at the rate of 50%, but only at the rate of 40%, as held by the larger Bench of the Hon'ble Supreme Court in **National Insurance Company Limited v. Pranay Sethi and others** [(2017) 16 SCC 680]. Similarly, funeral expenses granted by the Tribunal at the rate of Rs.25,000/- will have to be reduced to Rs.15,000/-. 'Loss of estate' granted by the Tribunal at Rs.10,000/- will have to be enhanced to Rs.15,000/-. Again, Rs.5,000/- granted towards 'pain and suffering' cannot be sustained in the light of the judgment of the Hon'ble Supreme Court in **Oriental** M..A.C.A.No.555 of 2015 ..6.. **Insurance Company Limited v. Kahlon alias Jasmail Singh Kahlon (deceased) through his legal representative Narinder Kahlon Gosakan and another** [AIR 2021 SC 3913]. **6.** Finally, learned counsel pointed out that Rs.1,00,000/has been granted under the head 'loss of consortium', over and in addition to Rs.1,40,000/- granted under the head 'loss of love and affection'. The correct compensation payable is only under the head 'loss of consortium', that too at the rate of Rs.40,000/-. **7.** All the above contentions of the learned counsel for the insurance company are liable to be accepted and it is so done. Insofar as consortium is concerned, there are 4 dependents, each being entitled to Rs.40,000/-. **8.** In these circumstances, the M.A.C.A. is allowed and the compensation amount payable to the appellants/claimants is indicated in the tabular statement as hereinbelow:- M..A.C.A.No.555 of 2015 ..7.. |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** **(Rs.)**|**Total amount** **after** **enhancement** **in appeal** **(Rs.)**| |---|---|---|---| |1|Loss of dependency|10,12,500|13,50,000*| |2|Transport to hospital|5,000|5,000| |3|Damage to clothes|1,000|1,000| |4|Funeral expenses|25,000|16,500| |5|Pain and sufferings|5,000|--| |6|Loss of love and affection|1,40,000|--| |7|Loss of consortium|1,00,000|1,76,000| |8|Loss of estate|10,000|16,500| ||Total|12,98,500|15,65,000| |Amount enhanced = Rs.2,66,500/- (Rupees Two lakhs sixty six thousand five hundred only) *10,000x12x15x¾|||| **9.** The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. **10.** The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this M..A.C.A.No.555 of 2015 **==> picture [22 x 8] intentionally omitted <==** 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 given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. Sd/- ## **C.JAYACHANDRAN, JUDGE** skj