Susamma Kurian & Others v. M.P. Salby & The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** **MACA NO. 715 OF 2009** **AGAINST THE ORDER/JUDGMENT DATED 2.2.2008 IN OPMV 3124/2000** ## **OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 SUSAMMA KURIAN @ SUSAMMA, AGED 47 YEARS, W/O.LATE KURIAN GEORGE, RESIDING AT VATTITHADATHIL HOUSE, ANEESH VILLA, MULANTHURUTHY P.O., PIN – 682 314. 2 ANEESN KURIAN @ ANEESH, AGED 22 YEARS, S/O. LATE KURIAN GEORGE, RESIDING AT VATTITHADATHIL HOUSE, ANEESH VILLA, MULANTHURUTHY P.O., PIN – 682 314. 3 ANOOP KURAIN & ANOOP, AGED 19 YEARS, S/O. LATE KURIAN GEORGE, RESIDING AT VATTITHADATHIL HOUSE, ANEESH VILLA, MULANTHURUTHY P.O., PIN – 682 314. 4 ELIKUTTY AGED 89 YEARS, M/O. LATE KURIAN GEORGE, RESIDING AT VATTITHADATHIL HOUSE, ANEESH VILLA, MULANTHURUTHY P.O., PIN – 682 314. BY ADV SRI.ANIL S.RAJ SRI. RAJAN K.N SMT.P.RADHIKA RAJASEKHARAN SMT ANILA PETER ## **RESPONDENTS/RESPONDENTS:** 1 M.P.SALBY, S/O.PAULOSE, MOOLAYIL HOUSE, KARIKKODE KARA, MULANTHURUTHY VILLAGE. 2 THE NATIONAL INSURANCE COMPANY LIMITED TRIPUNITHURA DIVISION, STATUE JUNCTION, TRIPUNITHURA. BY ADV SMT.SARAH SALVY FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 715/2009 2 C.JAYACHANDRAN, J. -----------------------------------MACA No.715 of 2009 ------------------------------------Dated this the 17[th] day of June, 2022 ## J U D G M E N T 1. Under challenge in this appeal is the award dated 2.2.2008 in O.P.(M.V.) No.3124/2000 of the Motor Accidents Claims Tribunal, Ernakulam. The claimants are the appellants. They are the legal heirs of the deceased, who met with an accident on 22.6.2000, succumbing to the same on the next day. 2. Heard the learned counsel for the appellants and the learned Standing Counsel for the second respondent/Insurance Company. Perused the records. 3. The following are the counts under which the appellants seek enhancement: Firstly, the learned counsel pointed out that the notional income of the deceased was taken as Rs.2,500/-, although Exts.A7 and A8 records were produced to show that he was running a provision and vegetable shop. Even though no proof specifically referring to the income was adduced, a reasonable MACA 715/2009 3 estimation should have been taken by the learned Tribunal and it cannot be, at any rate, Rs.2,500/per month, submits the learned counsel. Having perused Exts.A7 and A8, which would establish that the deceased was running a provision and vegetable shop, this Court is of the view that an amount of Rs.3,500/- can be taken as the notional income, even by a modest estimation. 4. The second aspect is with respect to the deduction of 1/3[rd] towards self maintenance of the deceased, as against 1/4[th] being applicable to the facts of the case, there being four dependents, namely, the wife, two children and the mother. The said contention is also liable to be accepted. 5. Another submission is that future prospects of the deceased was not reckoned at all by the Tribunal. According to the learned counsel for the appellants, future prospects @ 50% is liable to be reckoned. This submission was opposed by the learned Standing Counsel for the Insurance Company pointing out that 40% is to be reckoned towards future prospects even for persons having permanent income. Taking into account the objection of the learned MACA 715/2009 4 counsel for the Insurance Company, this Court is of the opinion that 25% of the income can be reckoned towards future prospects, since the deceased had no permanent income. As regards the multiplier, both sides would agree that the correct multiplier is 14, as against 15 taken by the Tribunal. This mistake is liable to be corrected. Compensation on account of loss of dependency will be worked out accordingly. 6. Another ground is the one under the head funeral expenses, Rs.2,500/- alone was granted by the Tribunal and the same is liable to be enhanced to Rs.15,000/- as held in National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] . It is so done. 7. The next count is with respect to loss of consortium, as against which a sum of Rs.10,000/alone was granted by the Tribunal. Learned counsel pointed out that the deceased is survived by his mother, wife and two children and therefore, they are entitled to Rs.40,000/- each towards consortium, going by the dictum laid down in Pranay Sethi (supra). This submission of the learned counsel MACA 715/2009 5 appearing for the appellants is liable to be recognised. 8. Under the head loss of estate, a sum of Rs.10,000/- was granted, as against Rs.15,000/legitimately due to the claimants, going by Pranay Sethi (supra). Enhancement is allowed accordingly. 9. Learned counsel for the appellants further claims that going by the decision in Pranay Sethi (supra) , the appellants are also entitled to 10% enhancement on the amounts granted under the conventional heads namely, loss of estate, loss of consortium and funeral expenses. Out of the above, under the head funeral expenses, this Court has already been enhanced the amount to Rs.15,000/- going by the decision in Pranay Sethi (supra) as above and since that expenditure has already been incurred, this court is not inclined to grant any further enhancement under that head. An enhancement of the expenditure already incurred and already reckoned does not appear to be in the fitness of things and therefore, this Court excludes the said head. Regarding the other two heads, i.e, loss of estate and loss of consortium, this Court is inclined to MACA 715/2009 6 grant 10% hike from the date of the decision in Pranay Sethi (supra), i.e, 31.10.2017. Compensation will be reworked accordingly. 10. Going by the judgment in Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram and Others [2018 KHC 6697], mother is also entitled to filial consortium. Learned Standing Counsel for the Insurance Company raised an objection pointing out that, it is not sure whether the mother is alive or not now. This Court is of the opinion that the question whether the mother is alive or not now is not significant, inasmuch as the mother was a party in the original petition/claim petition as the 4[th] petitioner, in her capacity as legal heir of the deceased. Assuming that she is no more now, the same cannot have any impact on her claim for a just compensation amount as a legal heir. Once it is settled that the mother is also entitled to consortium by the authoritative pronouncement of the Honourable Supreme Court in Magma (supra), this Court is of the view that, she is entitled to the same. Compensation amount is to be reworked accordingly. MACA 715/2009 7 11. Both counsel would agree that no amount can be given under the head pain and suffering, as per the decision in Sarala Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)], which has been reiterated in United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors [2021 (4) KLT SN 10 (C.No.8) SC = (2020) SCC Online 410) . Therefore, the amount granted under that head is liable to be deleted. 12. In the circumstances, the appeal is allowed and the compensation awarded is re-worked as follows: |Sl.<br>No.|Head of claim|Amount<br>awarded<br>by<br>the<br>Tribunal(Rs)|Total amount<br>after<br>enhancement in<br>appeal (Rs.)| |---|---|---|---| |1|Medical Expenses|20750|20750| |2|Transportation<br>expenses|2500|2500| |3|Funeral Expenses|2500|15000| |4|Pain and suffering|10000|Nil| |5|Loss of consortium|10000|176000<br>(40000+(10% of<br>40000)x4)| |6|Loss of love and<br>affection|10000|10000| |7|Loss of estate|10000|16500<br>(15000+(10% of<br>15000)| |8|Loss of dependency|300000|551208<br>(*3281x12x14)| ||Total|345750|791958| ||Amount enhanced =Rs.4,46,208(791958-345750)||| |*(3500+875(25% of 3500) – 1094[1/4thof 4375(3500+875)] = 3281)|||| MACA 715/2009 8 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 amounts at the rate of 5% from the date of petition. If any amount has 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. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. Sd/C.JAYACHANDRAN JUDGE jg