High Court of KeralaSingle Judge2023-03-07Appeal allowed in part; cross-objection dismiss...

The New India Assurance Company Limited vs P.P. Joy, Anoop Joy and Anila Joy (MACA No. 4077 of 2017 & CO No. 153 of 2018)

Case / Petition Number:MACA No. 4077 of 2017 & CO No. 153 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2023-03-07
Court Decision / Holding: Appeal allowed in part and cross-objection dismissed. The award is modified: funeral expenses reduced to Rs. 15,000; loss of estate to Rs. 15,000; loss of consortium/love and affection capped at Rs. 1,20,000 (the excess Rs. 80,000 to be refunded); pain and suffering disallowed as the death was personal to the deceased; the total enhanced compensation quantified at Rs. 1,40,000 (to be refunded). The insurer is directed to deposit the balance amount, with interest at 9% per annum from the date of filing till deposit, in the Bank Account of respondents 1–3 in equal proportions within two months, after deducting any liabilities for tax, balance court fee, and legal benefit fund. The payment is to be in terms of Circular No. 3 of 2019 and related orders.
Final Disposition: Appeal allowed in part; cross-objection dismissed; monetary adjustments and deposit directions as stated above.

Parties to the Case

Appellants / Petitioners

P.P. Joy, S/o Paily, Pottanplackal House, Mandapparamba, Ulikkal P.O., Via Iritty, PIN-670705
Anoop Joy, S/o. P. P. Joy, Pottanplackal House, Mandapparamba, Ulikkal P.O., Via Iritty, PIN-670705
Anila Joy, D/o. P. P. Joy, Pottanplackal House, Mandapparamba, Ulikkal P.O., Via Iritty, PIN-670705

Respondents

The New India Assurance Company Limited, Thalassery, represented by its Manager, Regional Office, M.G. Road, Kochi-11

Legal Representation & Advocates

Counsels for Petitioners

• Domson J. Vattakuzhy

Counsels for Respondents

• P. Jacob Mathew

Case Synopsis & Summary

This Kerala High Court judgment arises from an appeal by the New India Assurance Company challenging the Motor Accidents Claims Tribunal, Thalassery award in OP(MV) No. 79/2010 and the cross-objections by the claimants, P.P. Joy, Anoop Joy and Anila Joy, seeking enhanced compensation. The accident occurred on 20.12.2009 when a bus driven rashly by the first respondent collided with the car carrying Molly, resulting in her death. The Tribunal awarded Rs. 21,86,100 in total compensation to the legal heirs who sought higher relief. The insurer argued primarily that the Tribunal erred in applying a multiplier of 11 for loss of dependency given the deceased’s age and expected retirement, and that the claim for a split multiplier (5+6) should apply in view of the deceased’s anticipated retirement. It also contested several conventional heads of compensation, alleging miscalculation. The claimants contended the award was inadequate and pressed for higher sums under heads like funeral expenses, loss of estate, pain and suffering, and especially loss of consortium and love/affection. The court examined the evidence (Exts A1–A10, no oral evidence) and relied on Pranay Sethi for conventional heads, while incorporating the recent R. Valli decision to reject the split multiplier. It reduced several heads, allowed refunds, and directed the insurer to deposit Rs.1,40,000 with interest within two months, resulting in partial success for the insurer and dismissal of the cross-objections.

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the deceased, aged 51, earned Rs. 20,740 per month and that although the Tribunal added 15% future prospects, the age and fixed salary suggest that the multiplier should not be 11. Following R. Valli (2022) 5 SCC 107, the insurer argues against the split multiplier (5+6) and maintains that no enhancement is warranted under conventional heads given the evidence and the Supreme Court’s stance. It contends that the award under funeral expenses, loss of estate, pain and suffering, and loss of consortium should be recalibrated to reflect statutory limits under Pranay Sethi and related authorities.

Contentions of Respondents

The respondents/claimants argue for enhanced compensation, asserting the trial court correctly assessed dependency and earnings. They rely on Pranay Sethi (AIR 2017 SC 5157) for standard heads (funeral Rs. 15,000; loss of estate Rs. 15,000) and argue for larger sums under loss of consortium, love and affection, and other heads when appropriate, while pointing out the insurer’s failure to adduce contrary materials. They contest the insurer’s interpretation of the multiplier and the future prospects, seeking due compensation for loss of dependency.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. vs. Pranay Sethi and Others	AIR 2017 SC 5157	Positive	Used as the controlling authority for conventional heads of compensation; fixes limits for funeral expenses and loss of estate as per Pranay Sethi.
Oriental Insurance Company Limited vs. Kahlon @ Jasmail Singh Kahlon	(2021) SCC Online SC 691	Positive	Cited to support the principle that pain and suffering is not recoverable in death-related personal injury claims.
R. Valli and others vs. Tamil Nadu State Transport Corporation	(2022) 5 SCC 107	Positive	Deprecates the practice of applying a split multiplier; used to justify not applying a split multiplier in the present case.

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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 MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 7[TH]DAY OF MARCH 2023 / 16TH PHALGUNA,1944 ``` ``` MACA NO. 4077 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 79/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL , THALASSERY ``` ## `APPELLANT: 3RD RESPONDENT` ``` THE NEW INDIA ASSURANCE COMPANY LIMITED, THALASSERY, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M. G. ROAD, KOCHI-11. ``` ``` BY ADV SRI.P JACOB MATHEW ``` ## `RESPONDENTS:PETITIONERS` `1. P.P.JOY, S/O. PAILY, POTTANPLACKAL HOUSE, MANDAPAPARAMBA, ULIKKAL P.O., VIA IRITTY, PIN-670705.` ``` 2.ANOOP JOY, S/O. P. P. JOY, POTTANPLACKAL HOUSE, MANDAPAPARAMBA, ULIKKAL P.O., VIA IRITTY, PIN-670705. ``` ``` 3.ANILA JOY, D/O. P. P. JOY, POTTANPLACKAL HOUSE, MANDAPAPARAMBA, ULIKKAL P.O., VIA IRITTY, PIN-670705. ``` ``` BY ADV DOMSON J.VATTAKUZHY ``` ``` THISMOTORACCIDENTSCLAIMSAPPEALHAVINGBEEN FINALLYHEARDON03.03.2023,ALONGWITH CO.153/2018,THECOURTON07.03.2023DELIVERED THE FOLLOWING: ``` MACA No.4077 of 2017 & C.O 153 of 2018 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 7[TH]DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ``` CO NO.153 OF 2018 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 79 OF 2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY ``` ## `CROSS OBJECTORS/RESPONDENTS:` - `(1) P.P.JOY, S/O. PAILY, POTTANPLACKAL HOUSE, MANDAPARAMBA, ULIKKAL P O, VIA IRITTY, KANNUR DISTRICT` - `(2) ANOOP JOY, S/O.P P JOY, POTTANPLACKAL HOUSE, MANDAPARAMBA, ULIKKAL P O, VIA IRITTY, KANNUR DISTRICT` - `(3) ANILA JOY, D/O.P P JOY, POTTANPLACKAL HOUSE, MANDAPARAMBA, ULIKKAL P O, VIA IRITTY, KANNUR DISTRICT.` ``` BY ADV. SRI.C.P PEETHAMBARAN ``` ## `RESPONDENT/APPELLANT:` ``` THE NEW INDIA ASSURANCE COMPANY LIMITED, THALASSERY, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M G ROAD, KOCHI-682011. ``` ``` THISCROSSOBJECTIONHAVINGBEENFINALLYHEARDON 03.03.2023,ALONGWITHMACA.4077/2017,THECOURT ON 07.03.2023 DELIVERED THE FOLLOWING: ``` MACA No.4077 of 2017 & 3 C.O 153 of 2018 ## **SOPHY THOMAS, J.** --------------------------------------------- ## MACA No.4077 of 2017 & ## C.O 153 of 2018 ---------------------------------------------- Dated this the 7[th] day of March, 2023 ## **J U D G M E N T** The 3[rd] respondent/insurer in OP(MV) No.79 of 2010 on the file of Motor Accidents Claims Tribunal, Thalassery is assailing the impugned award as it is excessive, and the respondents/claimants are assailing the judgment by way of cross objection, on the ground of inadequacy of compensation. 2. On 20.12.2009 at about 3 p.m, while Smt.Molly, wife of the 1[st] respondent and mother of respondents 2 and 3, was travelling in a Maruti car, KL-08W/4049 bus driven by the 1[st] respondent in a rash and negligent manner dashed against the car in which she was travelling, and she sustained fatal injuries and died on the spot. The respondents, who are the legal heirs of MACA No.4077 of 2017 & C.O 153 of 2018 4 deceased Molly, approached the Tribunal claiming compensation of Rs.35 lakh, and the Tribunal awarded Rs.21,86,100/-. According to the appellant/insurer, the compensation awarded is excessive, and according to the respondents, the amount awarded is not the ‘just compensation’. 3. Respondents 1 and 2, the driver and owner of the offending bus, remained ex parte. The 3[rd] respondent/insurer admitted the policy but denied the liability, contending that there was no negligence from the side of the 1[st] respondent. 4. There was no oral evidence from either side before the Tribunal and Exts.A1 to A10 were marked. 5. Now let us see whether any interference is warranted in the impugned award. 6. Heard Sri.P.Jacob Mathew, learned counsel appearing for the appellant/insurer and Sri.Domson J Vattakuzhy, learned counsel appearing for the respondents/cross objectors/claimants. 7. Learned counsel for the appellant contended that, the deceased was a 51 year old Teacher, earning monthly income of Rs.20,740/- and the Tribunal took her income as per Ext.A9 salary certificate, and 15% addition was given for future prospects also, MACA No.4077 of 2017 & C.O 153 of 2018 5 as she was aged between 50-60 with permanent job and fixed salary. But, she had to retire at the age of 56. So, according to them, the Tribunal ought not have applied the multiplier of 11, as she was eligible to get the monthly income as per the certificate with future prospects only till retirement. So, learned counsel for the appellant would argue that the Tribunal ought to have applied a split multiplier of 5+6. 8. The Apex Court, in _**R. Valli and others** vs._ _**Tamil Nadu State Transport Corporation**_ [(2022) 5 SCC 107], deprecated the practice of application of split multiplier, even though the deceased was having permanent job and income and was due to retire prior to the period covered by the multiplier. 9. So, the contention of the appellant that the Tribunal ought to have applied split multiplier for assessing compensation for loss of dependency, is not tenable, and so, no interference to the award is warranted under that ground. 10. Under the conventional heads, the Tribunal awarded Rs.25,000/- towards funeral expenses, whereas the amount eligible was only Rs.15,000/-, as per the decision **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** (AIR 2017 SC MACA No.4077 of 2017 & C.O 153 of 2018 6 5157). So, the respondents are liable to refund Rs.10,000/- under the head ‘funeral expenses’. 11. Towards loss of estate, the Tribunal awarded Rs.50,000/-. But, the amount eligible was only Rs.15,000/-, as per _Pranay Sethi’s case_ cited supra. So, the respondents are liable to refund Rs.35,000/- under the head ‘loss of estate’. 12. Towards pain and suffering, the Tribunal awarded Rs.15,000/-. Since this being a death case, the legal heirs were not eligible to get compensation for pain and suffering of the deceased which was personal in nature. (Reliance placed on _Oriental Insurance Company Limited_ vs. _Kahlon @ Jasmail Singh Kahlon_ [2021 SCC Online SC 691]). So, the respondents are liable to refund that amount also. 13. Towards loss of consortium and loss of love and affection, the Tribunal awarded Rs.1 lakh each. The respondents, who are the husband and children of the deceased, were eligible to get Rs.40,000/- each under the head loss of consortium; spousal and parental. So, the total amount eligible is Rs.1,20,000/-. But, the tribunal awarded Rs.2 lakh in total. So, they are liable to refund Rs.80,000/- under the head loss of consortium/loss of love and MACA No.4077 of 2017 & C.O 153 of 2018 7 affection. 14. Though the respondents claimed enhancement of compensation, they did not produce any materials to substantiate their claim. So, no enhancement is possible as claimed by the respondents. Whereas they are liable to refund Rs.1,40,000/awarded in excess, by the Tribunal under the heads mentioned above. |above.||||| |---|---|---|---|---| |**Head of claim** **(1)**|**Amount** **awarded by** **the Tribunal** **(2)**|**Amount** **awarded in** **appeal** **(3)**|**Amount** **deducted in** **appeal** **(4)**|**Difference to** **be drawn as** **enhanced** **compensation** **(5)**| |Funeral expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|-| |Loss of estate|Rs.50,000/-|Rs.15,000/-|Rs.35,000/-|-| |Pain and suffering|Rs.15,000/-|-|Rs.15,000/-|-| |Loss of consortium/ loss of love and affection|Rs.2,00,000/-|Rs.1,20,000/-|Rs.80,000/-|-| |**Total**|||**Rs.1,40,000/-**|-| 15. It is submitted across the bar that the appellant deposited Rs.15 lakh before the MACT, Thalassery, for obtaining stay in the appeal. So, while depositing the balance, the appellant can deduct Rs.1,40,000/with interest from the total award MACA No.4077 of 2017 & C.O 153 of 2018 8 ## amount. In the result, the appellant is directed to deposit the balance amount with interest @ 9% per annum from the date of petition till the date of deposit in the Bank Account of respondents 1 to 3 in equal proportion, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the respondents towards Tax, balance court fee and legal benefit fund. Accordingly, the appeal is allowed to the extent shown above, and the cross objection is dismissed. Sd/- **SOPHY THOMAS JUDGE** smp