Susamma, Toniya Joseph, and Adarsh Joseph (minor) v. National Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ``` MACA NO. 367 OF 2020 ``` ``` [AGAINST THE AWARD DATED 27.05.2016 IN OP(MV)NO.51/2015 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA] ``` ## `APPELLANTS/PETITIONERS:` - `1 SUSAMMA, AGED 46 YEARS, W/O. TONY JOSEPH, PADINJAREVETTUKALLEL HOUSE, ALAKODE AMSOM, ARANGAM DESOM, THERTHALLY P.O, KANNUR DISTRICT 670 581.` - `2 TONIYA JOSEPH, AGED 30 YEARS, W/O. SAJO, CHENAMATTATHIL HOUSE, PAYATHAMPOYYIL, KUTTOOR P.O, MATHAMANGALAM VIA, KANNUR DISTRICT - 670 306.` - `3 ADARSH JOSEPH, S/O. TOMY JOSEPH (MINOR), AGED 17 YEARS, PADINJAREVETTUKALLEL HOUSE, ALAKODE AMSOM, ARANGAM DESOM, THERTHALLY P.O, KANNUR DISTRICT - 670 581. MINOR REP BY HIS NEXT FRIEND AND GUARDIAN, SUSAMMA, W/O. TONY JOSEPH, AGED 46 YEARS, PADINJAREVETTUKALLEL HOUSE, ALAKODE AMSOM, ARANGAMA DESOM, THERTHALLY P.O, KANNUR DISTRICT 670 581.` ``` BY ADV M.R.JAYALATHA ``` ## `RESPONDENT/3RD RESPONDENT:` ``` NATIONAL INSURANCE COMPANY LTD., REP. BY ITS BRANCH MANAGER, 1ST FLOOR, PERUMAL BUILDING, PERUMBA, PAYYANNUR, PIN-670 307, (POLICE NO. 571103/31/13/6700011265.) ``` ``` BY ADV SMT.DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 367 OF 2020 ``` ``` -2- ``` ## `JUDGMENT` ``` This matter is of the year 2020 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 legal heirs of Tony Joseph - who was ``` ``` unfortunately killed in a road accident, while he was travelling in a motor cycle, hit by the offending vehicle driven in a rash and negligent manner - have filed this Appeal, impugning the Award of the Motor Accidents Claims Tribunal (‘Tribunal’, for short), Thaliparamba in ``` ``` OP(MV)No.51/2015, primarily on the ground that ``` ``` the compensation awarded to them under the head “Loss of Dependency” is inadequate. ``` ``` MACA NO. 367 OF 2020 ``` ``` -3- ``` ``` 4.Smt.M.R.Jayalatha – learned counsel for ``` ``` the appellants, pointed out that the reason why the Tribunal has fixed a low compensation of Rs.4,40,000/- in favour of her client is ``` ``` because, it has adopted the notional income of the deceased to be only Rs.5,000/-, while the claim made was for Rs.20,000/-. She argued that there is sufficient evidence on record to ``` ``` establish his income, particularly because the ``` ``` deceased was a businessman. ``` ``` 5.Smt.M.R.Jayalatha then submitted that an ``` ``` amount of Rs.1,36,000/- ought to have been awarded under the head “Loss of Consortium”, instead of Rs.1,00,000/-, going by the judgment ``` ``` of the Hon’ble Supreme Court inNational Insurance Company Ltd. v. Pranay Sethi [2017 (4) ``` ``` KLT 662]; and thus prayed that this Appeal be ``` ``` allowed as prayed for. ``` ``` 6.Smt.Deepa George – learned Standing ``` ``` MACA NO. 367 OF 2020 ``` **==> picture [22 x 8] intentionally omitted <==** ``` Counsel for the Insurance Company, on the other hand, submitted that the compensation awarded by the Tribunal under the head “Loss of Dependency” ``` ``` is without error; but that it has made a mistake in granting Rs.25,000/- each under the heads “Funeral Expenses” and “Loss of Estate”, and in awarding Rs.2,00,000/- under the head “Loss of Love and Affection”, which are incorrect, going by Pranay Sethi (supra). ``` ``` 7.When I evaluate the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute - it is indubitable that the main contention is relating to the notional income adopted by the Tribunal in favour of the deceased. ``` ``` 8.As per Ramachandrappa v. Manager, Royal ``` ``` MACA NO. 367 OF 2020 ``` ``` -5- ``` ## `Sundaram Alliance Insurance Company Ltd. [(2011)` ``` 13 SCC 236], the Hon’ble Supreme Court has postulated that, even in the case of a person with unascertainable income in the year 2014 – ``` ``` when the accident occurred – the notional income to be adopted is Rs.9,500/-. There is absolutely no evidence on record to establish the income of ``` ``` the deceased, except an uncorroborated statement ``` ``` that he was working as a businessman. I am afraid that this will not be sufficient for this ``` ``` Court to grant any further than what has been ``` ``` postulated inRamachandrappa (supra); and I, therefore, adopt the figure of Rs.9,500/- as the notional income of the deceased. Certainly, 10% ``` ``` of it will have to be added as future prospects, as per Pranay Sethi (supra). ``` ``` 9.That being said, I find favour with ``` ``` Smt.M.R.Jayalatha, when she argues that an ``` ``` amount of Rs.1,20,000/- ought to have been ``` ``` MACA NO. 367 OF 2020 ``` ``` -6- ``` ``` granted under the head “Loss of Consortium” because,Pranay Sethi(supra) again makes it clear that Rs.40,000/- ought to be granted to ``` ``` each of the appellants under such head. ``` ``` 10.When I hold as afore, I must say that ``` ``` the argument of Smt.Deepa George, that not more than Rs.15,000/- each could have been granted ``` ``` under the heads “Funeral Expenses” and “Loss of Estate” appeals to me; as also that no amount under the head “Loss of Love and Affection” ``` ``` could have been granted, again being guided by Pranay Sethi (supra). ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a)The compensation under the head “Loss of Dependency” is enhanced to Rs.9,19,600/- (Rupees nine lakhs nineteen thousand and six hundred only), reckoning the notional income of the deceased to be Rs.9,500/- per month, with 10% ``` ``` MACA NO. 367 OF 2020 ``` ``` -7- ``` ``` future prospects added to it, deducting one third towards his personal expenses and adopting ``` ``` the multiplier of ‘11’, as perSarla Verma & ``` ``` Others v.Delhi Transport Corporation & Another ``` ``` [2010 (2) KLT 802]. ``` ``` (b)The compensation under the heads ``` ``` “Funeral Expenses” and “Loss of Estate” are both ``` ``` reduced to Rs.15,000/- (Rupees fifteen thousand ``` ``` only) each, from Rs.25,000/- awarded by the Tribunal. ``` ``` (c) The amount under the head “Loss of ``` ``` Consortium” is enhanced to Rs.1,20,000/- (Rupees ``` ``` one lakh twenty thousand only), from Rs.1,00,000/-. ``` ``` (d) The compensation under the head “Loss of Love and Affection” is deleted. ``` - `(e) In all other heads, the compensation` ``` granted by the Tribunal will remain intact. ``` ``` Needless to say, the appellants will be at ``` ## `MACA NO. 367 OF 2020` ``` -8- ``` ``` full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% (modifying the rate of interest of 9% as awarded ``` ``` by the Tribunal taking note of the escalation awarded by this Court), from the date of claim ``` ``` until it is recovered.They will also be ``` ``` entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` It goes without saying that, while ``` ``` calculating the interest as afore, a period of 1285 days - being the delay in filing this ``` ``` Appeal – shall stand excluded. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```