The Manager, New India Assurance Company Ltd vs Haridas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **MACA.No.3086 OF 2015** **CHALLENGING THE AWARD IN OP (MV) No.382/2010 DATED 08-05-2015 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT:** ## **THE MANAGER,** **NEW INDIA ASSURANCE COMPANY LTD, BRANCH OFFICE, MAIN ROAD, ATTINGAL, REPRESENTED BY ITS MANAGER, KADAMKULATHY TOWER, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENTS:** **1 HARIDAS, AGED 61 YEARS, S/O. KOCHUVELU, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605. 2 OMANA, AGED 51 YEARS, W/O. HARIDAS, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605. 3 SANISH, AGED 29 YEARS, S/O. HARIDAS, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605. 4 SANILA, AGED 27 YEARS, D/O. HARIDAS, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605. 5 SASEENDRAN N., VASHVILA, CHAVADIMUKKU, MUTTAPPALAM P.O., CHEMMARUTHI, VARKALA-695141. 6 CHANDU, S/O. SASEENDRAN, VASHAVILA, CHAVADIMUKKU, MUTTAPPALAM P.O., CHEMMARUTHI, VARKALA-695141. BY ADVS. R1 TO R4 BY SRI. PRATHEESH.P (CAVEATOR) SMT.S.SEETHA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2019, ALONG WITH CO.40/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3086 OF 2015 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **CO.No.40 OF 2016 IN MACA. 3086/2015** **AGAINST THE AWARD IN O.P.(MV) NO.382/2010 DATED 08.05.2015 PASSED BY THE II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM** ## **CROSS OBJECTORS/RESPONDENTS/CLAIMANTS:** **1. HARIDAS, AGED 66 YEARS, S/O. KOCHUVELU, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605, NOW RESIDING AT A. A. NIVAS, NORTH MYLAKKADU P.O., MYLAKKADU, KOLLAM.** **2. OMANA,AGED 56 YEARS, W/O. HARIDAS, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605,NOW RESIDING AT A. A. NIVAS, NORTH MYLAKKADU P.O., MYLAKKADU, KOLLAM.** **3. SANISH, AGED 34 YEARS, S/O. HARIDAS, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605, NOW RESIDING AT A. A. NIVAS, NORTH MYLAKKADU P.O., MYLAKKADU, KOLLAM.** - **4 SANILA, AGED 31 YEARS, D/O. HARIDAS, SANILA BAHAVAN, CHENNANCODU, KALLAMBALAM, THIRUVANANTHAPURAM-695605, NOW RESIDING AT A. A. NIVAS, NORTH MYLAKKADU P.O., MYLAKKADU, KOLLAM.** **BY ADVS. SRI.PRATHEESH.P SMT.RENY ANTO SMT.S.SEETHA** ## **RESPONDENTS/APPELLANT/RESPONDENTS:** - 1 **SASEENDRAN N., VASHAVILA, CHAVADIMUKKU, MUTTAPPALAM P.O., CHEMMARUTHI, VARKALA-695 311.** - 2 **CHANDU S/O SASEENDRAN, VASHAVILA, CHAVADIMUKKU, MUTTAPPALAM P.O., CHEMMARUTHI, VARKALA-695 311.** - 3 **THE MANAGER, REPRESENTING THE NEW INDIA ASSURANCE INDIA LT., BRANCH OFFICE, MAIN ROAD, ATTINGAL-691 601.** **R3 BY ADV. SRI.LAL GEORGE** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2019, ALONG WITH MACA.3086/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3086 OF 2015 3 ## JUDGMENT MACA No.3086 of 2015 is filed by the appellants/claimants and Cross Objection No.40 of 2016 is preferred by insurance company against the award of the Motor Accidents Claims Tribunal, Kollam, rendered in OP(MV) No.382 of 2010. 2. The facts culled out from the pleadings were on account of the death of one Sanej H.O., aged 24 years, who was an Accountant-cum-Agriculturist earning an income of Rs.26,750/-. Unfortunately, on 28.03.2010 at 6.45 p.m. while riding motor cycle through VarkalaKallambalam road met with an accident with another two wheeler bearing registration No.KL-16/C-3575 driven by the 2[nd] respondent and succumbed to injuries on 02.04.2010. The parents and siblings; 4 in number, sought the compensation of Rs.27,60,000/- 3. Before the Tribunal, the 1[st] and 2[nd] respondents, despite service, did not appear, hence were ex-parte. The 3[rd] respondent- the appellant in the appeal and 3[rd] MACA.No.3086 OF 2015 4 respondent in the Cross Objection disputed the claim to be excessive against the terms and conditions and alleged that the driver of the vehicle had breached the terms and conditions of the policy and was not holding a valid driving licence, etc. The claimants were examined as PW1 and PW2 and brought on record Exts.A1-A15. Ext.A11 is the result of the examination of intermediate and Ext.A.15 certificate is to the effect that he was pursuing a course of Chartered Accountancy and had passed the intermediate examination. It was further alleged that he was working in a private firm and was earning a sum of Rs.4,000/- per month. On the basis of the aforementioned evidence, the Tribunal assessed the monthly income of the deceased as Rs.12,000/- (notionally) and awarded a total compensation of Rs.27,42,980/- under various heads in the following manner: |er:||||| |---|---|---|---|---| |Sl.<br>No.|Head of Claim|Amount<br>Claimed|Amount<br>Awarded<br>(in Rupees)|Basis-vital<br>details in a nut<br>shell| |1|Loss of dependency|23,54,000|25,92,000|(12,000 + 50%)<br>x 12 x 18| |2|Funeral expenses|20,000|25,000|As per the<br>guidelines<br>of<br>the Hon'ble SC| |3|Loss of estate, love|1,50,000|50,000|On<br>a| MACA.No.3086 OF 2015 5 ||and affection|||reasonable<br>evaluation| |---|---|---|---|---| |4|Medical expenses|1,25,000|75,980|Ext.A8| ||Total|27,60,000|27,42,980|| 4. Mr.Lal George, the learned standing counsel appearing on behalf of the insurance company submitted that the award of the Tribunal is liable to be modified/set aside on various heads as follows: - (i) The notional income assessed by the Tribunal is on the higher side as the deceased has only passed the intermediate examination in Chartered Accountancy course and could not have expected to be earning such an amount. - (ii) The compensation granted under the head funeral expenses is also on the higher side much less the loss of estate and love and affection, as according to the judgment of the Hon'ble Supreme Court, the compensation under conventional heads should not have been more than Rs.70,000/-. In support of the aforementioned contentions the learned counsel relied upon the judgment of the Hon'ble Apex Court in State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484] and also the judgment in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]. 5. On the other hand Sri.Pratheesh, the learned counsel appearing on behalf of the claimants submitted that the income assessed by the Tribunal as Rs.12,000/-, being notional, is on the lower side and in the case of a medical student, in Ashvinbhai Jayantilal Modi v. Ramkaran MACA.No.3086 OF 2015 6 Ramachandra Sharma and another [2014 ACJ 2648], the income of such deceased was taken as Rs.18,000/- per month, who was aged 19 years at the time of accident. No future prospects as per the ratio in Pranay Sethi's case (supra) had been awarded; towards compensation under the head pain and suffering also awarded no amount. Though compensation of loss of estate and love and affection was to the tune of Rs.1,50,000/- the Tribunal granted only an amount of Rs.50,000/-. Towards medical expenses of Rs.1,25,000/-, the Tribunal granted only a sum of Rs.75,980/- as per Ext.A8 medical bills; it is not expected for a family to keep all the bills, particularly when they got disturbed owing to the demise of a young family member. 6. Having heard the learned counsel for the parties, appraised the paper books and records of the case, I am of the view that the award of the Tribunal is liable to be modified to some extent. The argument of Mr.George, at the first blush, qua the assessment of the income, having taken the notional income of the deceased MACA.No.3086 OF 2015 7 as Rs.12,000/- looked impressive. But going through the judgment of Ashvinbhai Jayantilal Modi's case (supra), I am of the view that the income taken as Rs.12,000/- is on a lesser side, but cannot remain unmindful of the fact that the compensation on conventional heads, in the present case, is more than what is required as per the judgment of the Hon'ble Supreme Court in Pranay Sethi's case (supra) . Exts.A11 and A15 are the documents which unflinchingly prove that the deceased had passed intermediate Chartered Accountancy examination and was hopeful of completing the same had he been alive. The sole purpose of the parents is always to provide the best education to their children to do better in future. Expectation of the parents cannot be measured in terms of money. Hence, not only the expectation of the parents but the loss of a young boy is irreconcilable. It is most unfortunate for a family to suffer such set back. The Hon'ble Supreme Court in paragraph No.6 of Ashvinbhai Jayantilal Modi's case (supra) taken the factors on notice by assessing the income of a medical student as Rs.18,000/- per month and MACA.No.3086 OF 2015 8 after applying the reduction of 1/3 towards personal expenses adopted the multiplier of 16. However, in the instant case, as noticed above, the deceased was aged 24 years and was working in a private firm assessment of notional income as Rs.12,000/-, in my view, is on a lower side. Accordingly I take it as Rs.18,000/- for calculating the compensation under various heads. As the Tribunal had taken the multiplier of 18 the same does not require any change. By applying the dependancy as ½ of the monthly income of the deceased and by applying the multiplier as 18, the compensation would be Rs.19,44,000/- (9,000 x 12 x 18). Since the Tribunal has taken into consideration 50% of the future prospects, I am of the view that since the deceased being bachelor it should be 40%, i.e., (9,000 x 40/100 = 3,600). When taking the future prospects as 40% the compensation under the head loss of dependancy will be Rs.27,21,600/((9,000 + 3600) x 12 x 18), resulting an additional compensation of Rs.1,29,600/ - (27,21,600 – 25,92,000) which shall entail interest of 7.5% from the date of MACA.No.3086 OF 2015 9 application. There is no change, in my view, in respect of compensation awarded under the head funeral expenses. Under the head loss of estate, love and affection, though a claim for Rs.1,50,000/- is made; only an amount of Rs.50,000/- was awarded by the Tribunal. 7. I am of the view that the compensation under all the conventional heads be taken instead of confining into loss of love and affection. I take the compensation under all conventional heads to be Rs.70,000/-. So there shall be an increase of Rs.20,000/- . As regards the medical attendance, there is no modification. In the result, both the appeal and the cross objection stand disposed of. The insurance company is directed to deposit the enhanced amount of Rs.1,49,600/- (Rupees One lakh forty nine thousand and six hundred only) (1,29,600 + 20,000) within a period of 3 months, failing which it shall entail interest @ 12%. ## Sd/AMIT RAWAL, JUDGE **Skk//091219**