The New India Assurance Company Limited v. Joy and Leela and Ansilin Toony and Juny

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** **MACA.No.917 OF 2014** **AGAINST THE AWARD IN OP(MV) NO.215/2008 DATED 25-11-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED PUNE, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI - 11.** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS:** **1 JOY , S/O.XAVIER S/O.XAVIER, THUNDATHIL HOUSE, MANAKKAPPADY, NEAR BADHANI ASHRAMAMA, ASOKAPURAM, ALUVA, PIN - 683 320. 2 LEELA W/O.JOY, PULIKKAL HOUSE, KOONAMMAVU KARA, KOTTUVALLY VILLAGE.** **3 ANSILIN TOONY D/O.JOY, THUNDATHIL HOUSE, MANAKKAPPADY, NEAR BADHANI ASHRAMAMA, ASOKAPURAM, ALUVA, PIN - 683 320. 4 JUNY D/O.JOY, THUNDATHIL HOUSE, MANAKKAPPADY, NEAR BADHANI ASHRAMAMA, ASOKAPURAM, ALUVA, PIN - 683 320.** **R1-4 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2020, THE COURT ON 05-06-2020 DELIVERED THE FOLLOWING:** **MACA. No.917 OF 2014** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 5[th] day of June, 2020**_ The 3[rd] respondent-Insurer in OP(MV) No.215/2008 of the Motor Accidents Claims Tribunal, North Paravur, has filed this MACA aggrieved by the Award dated 25.11.2013 of the Tribunal. 2. Respondents 1 to 4 were the petitioners in OP(MV) No.215/2008. On 22.08.2007, deceased Bony Joy riding a motorcycle on the Aluva - Ernakulam National Highway was hit by a lorry driven by the 1[st] respondent in the OP(MV). The deceased sustained serious injuries and was taken to Government Hospital, Aluva. The deceased succumbed to the injuries. The respondents filed the **MACA. No.917 OF 2014** **3** OP(MV) claiming an amount of ₹18 lakhs as compensation. 3. The owner and driver of the lorry remained _ex parte_ . The appellant-insurer filed written statement admitting the insurance coverage. The appellant denied the allegation that the accident occurred due to rash and negligent driving of the lorry driver. The negligence should be attributed to the deceased who was riding a motorcycle. As the negligence was of the deceased, the appellant is not liable to pay compensation, it was so contended before the Tribunal. 4. The Tribunal, after careful consideration of the evidence adduced by the respondents, inferred that the accident occurred solely because of the rash and negligent driving of the offending lorry insured by the appellant. As regards income of the appellant, though the respondents claimed the monthly income of the deceased as ₹6,500/-, the deceased being a Carpenter working in Emjay Industries, South Kalamassery, since the respondents did not examine the employer and in the absence of any supporting evidence, **MACA. No.917 OF 2014** **4** the Tribunal fixed notional income of the deceased as ₹5,000/-. The Tribunal held that since the deceased was of 22 years of age, the multiplier to be adopted is 18. As both parents and two sisters of the deceased were depending on him, the Tribunal held that only 1/3[rd] income need be deducted towards living expenses of the deceased. The Tribunal finally found that the respondents are entitled to a compensation of ₹10,80,000/- as compensation for loss of income. The Tribunal in total awarded ₹13,06,000/- as total compensation under various heads as given hereinbelow:- |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vitals**<br>**detail in nut**<br>**shell**| |---|---|---|---|---| |1|Pain and sufferings and continuing<br>physical ailments|50,000|50,000|| |2|Loss of estate to the 1stpetitioner|50,000|50,000|| |3|Compensation for loss of company<br>security, service and dependency<br>to the petitioners|50,000|10,80,000|| |4|Loss of income for the family|15,79,500||| |5|Transportation expenses|5,000|Nil|| |6|Compensation for mental agony<br>and pain to the petitioners|50,000|Nil|| |7|Medical expenses|10,000|Nil|| |8|Bystander expenses|10,000|Nil|| |9|Damage to clothing and articles|1,000|1,000|| **MACA. No.917 OF 2014** **5** |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vitals**<br>**detail in nut**<br>**shell**| |---|---|---|---|---| |10|Funeral expense|25,000|25,000|| |11|Compensation for love, affection,<br>companionship, guidance and<br>security of the petitioners|1,00,000|1,00,000|| ||**Total**|`19,30,500<br>Limited to<br>`18,00,000|`**13,06,000**<br>========|| The Tribunal held that the respondents are entitled to 8% interest from the date of the OP(MV) and the appellant was directed to pay the compensation. Aggrieved by the Award, the appellant-insurer is before this Court. 5. The learned Standing Counsel for the appellantinsurer argued that while arriving at the notional income of the deceased, additional 50% counted towards future prospects of the deceased, is excessive. It was contended that the deceased being a bachelor, 50% from the notional income should have been deducted towards personal expenses of the deceased, as against 1/3[rd] deducted by the Tribunal. The learned Standing Counsel further argued that ₹50,000/- awarded as compensation for pain and suffering is **MACA. No.917 OF 2014** **6** excessive. It was further contended that only ₹15,000/- can be granted towards compensation towards loss of estate as against ₹50,000/- granted by the Tribunal. The funeral expenses of ₹25,000/- allowed also goes against the standardised compensation allowed by the Apex Court. Similarly, towards compensation for loss of estate, the Tribunal granted ₹50,000/- whereas the standardised amount is ₹15,000/-. In the circumstances, the compensation awarded by the Tribunal should be substantially reduced. 6. The learned counsel for the respondents argued that the thrust in the various judgments of the Apex Court is to grant “just compensation” in the matter of motor accidents. The employer of the deceased was examined as PW2. The salary of the deceased was ₹6,500/-. However, the Tribunal fixed the income of the deceased as ₹5,000/-. This has adversely affected the claim of the respondents for compensation. Similarly, the deceased being a permanent employee in an industrial unit, the Tribunal rightly added 50% **MACA. No.917 OF 2014** **7** of the monthly income as future prospects. Such addition is justified in view of the principles laid down by the Apex Court. The father of the deceased was an aged and ailing person with no income. The family also included mother and two sisters of the deceased. Therefore, deduction of 1/3[rd] income towards personal and living expenses in respect of the deceased, is perfectly justified. The learned counsel for the respondents argued that though they have not preferred separate appeals against the Award, the respondents are entitled to get a higher compensation in this appeal. 7. I have heard the learned counsel for the appellant and the respondents. 8. The first and foremost argument of the learned Standing Counsel for the appellant is that since the deceased was only a Carpenter, the Tribunal ought to have granted only 40% enhancement in monthly income towards future prospects. The argument of the Standing Counsel cannot be sustained. In the judgment in _**National Insurance**_ **MACA. No.917 OF 2014** **8** _**Company Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ , the Apex Court held that where deceased is below 40 years of age and belonging to salaried employment, 50% should be added to the monthly income for the purpose of calculating future prospects. In the present case, though the deceased was a Carpenter, he was employed by an industrial unit. The deceased being a salaried person, the addition of 50% towards future prospects calculated by the Tribunal cannot be found fault with. 9. The further argument of the appellant is that the Tribunal ought to have deducted 50% of the monthly income of the deceased towards his personal expenses as against the 1/3[rd] deducted by the Tribunal. The Tribunal considered this aspect in paragraph 11 of the Award. The Tribunal noted that respondents 1 and 2 were the parents and respondents 3 and 4 were unmarried sisters of the deceased. The Tribunal relied on the judgments in _**Shakti Devi v. New India Assurance Co. Ltd.** [2010 (4) KLT SN 71]_ in which it was **MACA. No.917 OF 2014** **9** held that where the family of the bachelor is large and dependent on the income of the deceased, personal expenses of the deceased can be restricted to 1/3[rd] . The father of the deceased gave evidence as PW1 wherein the father has categorically held that he is ill and has no employment or income. He, his wife and his two daughters are dependent on the income of the deceased. Though PW1 was cross-examined, nothing came out to disbelieve his testimony. Therefore, and in view of the judgment in _**Shakti Devi**_ ( _supra_ ), I find that there is no error in the Tribunal deducting only 1/3[rd] of the income of the deceased towards his personal expenses. 10. The Standing Counsel further argued that towards loss of estate, the standardised compensation is ₹15,000/and for funeral expenses, the same is ₹15,000/-. The Tribunal has granted ₹50,000/- and ₹25,000/- respectively against the afore heads. The said arguments of the Standing Counsel do have some force. However, an important aspect **MACA. No.917 OF 2014** **10** that has to be considered is that death was in the year 2007. The notional income of a self-employed person in the year 2007 is to be taken as ₹6,000/- in view of various judgments of the Hon'ble Apex Court and this Court. The Tribunal, however, fixed the income of the deceased as ₹5,000/-. Had it been fixed as ₹6,000/- or above, the respondents would have been entitled to a much higher compensation. The said higher compensation would have upset the difference of the excess amount (vis-a-vis standardised amounts) paid by the Tribunal towards loss of estate and funeral expenses. The facts being so, this Court is not inclined to interfere with the Award granted by the Tribunal. In the circumstances, the appeal fails and it is consequently dismissed. Sd/- **N. NAGARESH, JUDGE** aks/04/06/2020