The United India Insurance Co. Ltd. v. Saradha, Geetha and Biju

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh, J.
Judgment Date: 2020-09-08
Court Decision / Holding: Appeal partly allowed; the Tribunal's award is varied; loss of income enhanced by ₹9,972 with 8% interest from the date of filing OP(MV) until payment; other heads remain as awarded; MACA disposed accordingly.
Final Disposition: Partly allowed; compensation enhanced for loss of income; 8% interest; disposal accordingly.

Parties to the Case

Appellants / Petitioners

The United India Insurance Co. Ltd.

Respondents

Saradha
Geetha
Biju

Legal Representation & Advocates

Counsels for Petitioners

• Sri. George Cherian (Sr.)
• Smt. Latha Susan Cherian
• Smt. K.S. Santhi

Counsels for Respondents

• Adv. A.N. Santhosh

Case Synopsis & Summary

MACA No.1244 of 2014 arises from an appeal by United India Insurance Co. Ltd. challenging a Motor Accidents Claims Tribunal, North Paravur award in OP(MV)213/2008, which concerned Thambi, a 62-year-old loading/unloading worker who was injured in a road accident on 20 August 2007 and died in 2010. The Tribunal held that the accident occurred due to rash and negligent driving by the rider of the vehicle and that Thambi’s death was a consequence of the injuries sustained. It awarded compensation across several heads totaling ₹7,72,500, though the petition sought ₹18,66,000. The insurer challenged the quantum, arguing, among other points, that the driver had no valid license and that the Tribunal erred in the notional income and in several heads such as pain and suffering and love and affection. The Kerala High Court, in a detailed appraisal, examined the evidence and precedent, notably Sarla Verma and Reshmakumari, and concluded that the Tribunal should have deducted one-third of the notional income for personal expenses (not the one-quarter used by the Tribunal) and should apply a multiplier of seven, not six. Consequently, the monthly income was treated as ₹3,333, and the loss of income to family was recalculated as ₹2,79,972. The court, however, did not disturb the other heads to a large extent, and allowed the appeal partly, giving an enhancement of ₹9,972 with 8% interest from the petition date. The MACA is disposed of accordingly.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant insurer contends that the Tribunal should have applied a 1/3 deduction towards personal and living expenses in determining the notional income, relying on Sarla Verma and Reshmakumari; it challenges the Tribunal's ₹1,00,000 for pain and suffering and the ₹1,00,000 for love and affection as excessive, and maintains that the monthly income of ₹5,000 used by the Tribunal is not justified; it argues that the appropriate multiplier and other heads require recalibration under Section 173 of the MV Act and relevant precedents.

Contentions of Respondents

The respondents contend that the injuries were severe, the deceased's condition required care and nourishment, and that the Tribunal's award for heads such as loss of amenities and love and affection is justified; they argue for careful consideration of the injuries, the duration until death, and the correct multiplier to apply.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sarla Verma and others v. Delhi Transport Corporation and another	(2009) 6 SCC 121	Positive	Court relied on the principle of deducting 1/3 of notional income for personal expenses as laid down in Sarla Verma and affirmed in later cases.
Reshmakumari v. Madan Mohan	(2013) 9 SCC 65	Positive	Cited in support of the deduction framework for personal expenses in calculating compensation.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY,THE 08TH DAY OF SEPTEMBER 2020/17TH BHADRA,1942** ## **MACA.No.1244 OF 2014** **AGAINST THE AWARD DATED 04-03-2014 IN OP(MV)213/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,NORTH PARAVUR** ## **APPELLANT/2ND RESPONDENT:** **THE UNITED INDIA INSURANCE CO.LTD., NORTH PARAVUR, REPRESENTED BY ITS ASST. MANAGER, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM.** **BY ADVS.** **SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENTS/ADDL.CLAIMANTS 2 TO 4:** - **1 SARADHA,W/O.THAMBI,KUNNAPPILLY MADAM HOUSE, PATTERIPPADAM U.C.COLLEGE P.O., EAST KADUNGALLOOR, PIN: 680 664.** - **2 GEETHA,D/O.THAMBI,KUNNAPPILLY MADAM HOUSE, PATTERIPPADAM U.C.COLLEGE P.O., EAST KADUNGALLOOR, PIN: 680 664.** - **3 BIJU,S/O.THAMBI,KUNNAPPILLY MADAM HOUSE, PATTERIPPADAM U.C.COLLEGE P.O., EAST KADUNGALLOOR, PIN: 680 664.** **R1-R3 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2020, THE COURT ON 08-09-2020 DELIVERED THE FOLLOWING:** MACA No.1244/2014 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## M.A.C.A. No.1244 of 2014 ````````````````````````````````````````````````````````````` _Dated this the 8[th] day of September, 2020_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The appellant, who is the second respondentinsurer in OP(MV) No.213/2008 on the files of the Motor Accidents Claims Tribunal, North Paravur, is before this Court invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by the Award dated 04.03.2014 of the Tribunal. 2. One Thambi, son of Damodaran filed OP(MV) No.213/2008 in the Motor Accidents Claims Tribunal, North Paravur stating that he sustained injuries in a motor vehicle accident on 20.08.2007 at East Kadungalloor. After the accident, the said Thambi was bedridden. During the pendency of the petition, the said Thambi passed away. Thereupon, respondents 1 to 3 in this appeal, impleaded MACA No.1244/2014 : 3 : themselves as additional petitioners 2 to 4 in the OP(MV). 3. The petitioners stated that on 20.08.2007 while the deceased Thambi was walking along Aluva-Edayar Road, a motorcycle driven by the first respondent in the OP(MV) in a rash and negligent manner hit him causing serious injuries. The said Thambi was taken to General Hospital, Edappally for treatment. Though Mr. Thambi was discharged from the hospital on 10.09.2007, he was advised to take rest for one year due to the seriousness of the injuries sustained. Sri.Thambi died on 17.06.2010. The petitioners calculated the damages at ₹18,66,000/- but limited the claim at ₹8,00,000/-. 4. The first respondent–rider of the motorcycle remained _ex-parte_ . The second respondent-insurance company, the appellant herein, contested the OP stating that the driver of the vehicle had no valid and effective driving license as on 20.08.2007. The policy document was admitted. However, the appellant disputed the age, occupation, monthly income and the nature of injuries MACA No.1244/2014 : 4 : sustained by the deceased. 5. The Tribunal, on appreciation of evidence on record, held that the accident occurred due to the rash and negligent driving of the first respondent in the OP(MV). One of the main issues before the Tribunal was whether the death of the original petitioner was due to the injuries sustained in the accident. The appellant-insurer contended that death was not as a consequence of the injuries, but was only a normal death. The Tribunal found that death of Sri. Thampi was not after the recovery from the injuries sustained by him, but was due to the injuries. 6. As regards compensation payable, the Tribunal found that the deceased was aged 62 years at the time of accident and died at the age of 65. The deceased was a loading and unloading worker and the Tribunal found his monthly income as ₹5,000/-. After deducting ₹1,250/towards his personal expenses, the Tribunal held that he contributed ₹3,750/to the family every month. The compensation for loss of dependency was therefore fixed as MACA No.1244/2014 : 5 : ## ₹2,70,000/- (₹3,750 x 12 x 6). ## 7. The Tribunal accordingly awarded a total compensation of 7,72,500/- under the following heads:-₹ |**Sl.** **No.**|**Head of claim**|**Amount** **claimed (in**`**)**|**Amount** **awarded (in**`**)**|**Basis – vital** **details in a** **nut-shell**| |---|---|---|---|---| |1|Damage to clothings|1,000|500|| |2|Funeral expenses|50,000|25,000|| |3|Transportation expenses|25,000|5,000|| |4|Medical expenses|50,000|15,800|(Ext.A8 series)| |5|Bystander expenses|1,50,000|6,200|(31 days IP)| |6|Extra Nourishment|50,000|20,000|| |7|Cost of water bed|50,000|Nil|| |8|Pain & sufferings|3,00,000|1,00,000|| |9|Compensation for loss of amenities, discomforts and inconvenience caused|Nil|1,00,000|| |10|Compensation for loss of income for the family|5,40,000|2,70,000|| |11|Compensation for loss of care, company security and service to the petitioners|50,000|Nil|| |12|Compensation for loss of love, affection, companionship, guidance and security to the 2nd petitioner|3,00,000|1,00,000|| |13|Compensation for mental agony and pain to the petitioners|50,000|Nil|| |14|Compensation for loss of estate|50,000|Nil|| |15|Loss of consortium to the additional 2ndpetitioner|2,00,000|1,00,000|| |16|Loss of earnings|Nil|30,000|| ||**Total**|`18**,66,000/-** Claim limited to`8,00,000|`**7,72,500/-** **=========**|| MACA No.1244/2014 : 6 : The Tribunal brushed aside the arguments of the insurer and held that the insurer is liable to pay the compensation with 8% interest and proportionate cost. It is aggrieved by the said Award of the Tribunal that the appellant is before this Court. 8. The learned Standing Counsel for the appellant argued that 1/3[rd] of the notional income of the deceased ought to have been deducted towards personal expenses of the deceased in view of the judgment of the Apex Court in _**Sarla Verma and others v. Delhi Transport Corporation and another** [(2009) 6 SCC 121]_ and in _**Reshmakumari v. Madan Mohan** [(2013) 9 SCC 65]_ . 9. The learned Standing Counsel further argued that the amount of 1,00,000/- awarded as compensation for pain₹ and suffering, is excessive. Similarly, the compensation awarded by the Tribunal towards compensation for loss of amenities, is much on a higher side. The learned counsel for the appellant further contended that the Tribunal ought not MACA No.1244/2014 : 7 : have granted 1,00,000/- as compensation towards love and₹ affection. The Tribunal further committed a grave error in accepting the monthly income of the deceased as 5,000/-.₹ In the circumstances, the Award of the Tribunal is liable to be interfered with under Section 173 of the Motor Vehicles Act, urged the learned Standing Counsel for the appellant-insurer. 10. The learned counsel for the respondents submitted that the injuries sustained by the deceased were severe. The deceased had to remain on water bed and could take only liquid food after the accident. The deceased, in fact, lost his memory power also. A bystander had to be engaged to take care of the needs of the deceased. Extra nourishment was also required. This is an extraordinary and exceptional case of death consequent to the accident after three years. Therefore, the Tribunal was perfectly justified in awarding ₹1,00,000/- towards compensation for loss of amenities. 11. The learned counsel for the respondents further argued that the multiplier taken by the Tribunal is erroneous MACA No.1244/2014 : 8 : and the Tribunal ought to have taken '7' as the multiplier. Similarly, the Tribunal has not granted any compensation towards loss of estate. Taking into account all the aforesaid lapses of the Tribunal, the compensation awarded by the Tribunal is much on the lower side. In the circumstances of the case and in view of the sad untimely demise of the injured, this Court should not interfere with the quantum of compensation awarded by the Tribunal, contended the learned counsel for the respondents. 12. I have heard the learned Standing Counsel for the appellant-insurer as also the learned counsel appearing for the respondents-petitioners. 13. There is considerable force in the argument of the learned Standing Counsel for the appellant that the Tribunal, while arriving at the notional income of the deceased, ought to have made a deduction of 1/3[rd] towards personal expenses/living expenses, in view of the judgment of the Hon'ble Apex Court in _**Sarla Verma** (supra_ ). 14. The deceased had three dependents. Therefore, MACA No.1244/2014 : 9 : the Tribunal committed an error in deducting only 1/4[th] of the income towards personal and living expenses. The monthly contribution of the deceased to the family should therefore ₹ ₹ ₹ . be fixed as 3,333/- ( 5,000 - 5,000 x 1/3) 15. At the same time, it is to be noted that the injured was aged 62 years at the time of accident and died at the age of 65 years. Therefore, the Tribunal ought to have taken ‘7’ as the multiplier. Therefore, the respondents should be held entitled to ₹2,79,972/(₹3,333x12x7) towards compensation for loss of income to the family as against the amount 2,70,000/- awarded by Tribunal. The respondents₹ therefore would be held entitled to an additional compensation of **₹9,972/-** under this head. 16. The further argument of the standing counsel for the appellant is that the respondents are not entitled to ₹1,00,000/- as compensation towards pain and suffering. It is to be noted that the deceased had suffered head injuries. The deceased lost his memory and capacity to move. After 31 days period of hospitalisation, the deceased was totally MACA No.1244/2014 : 10 : bedridden. The deceased had to live with such disabilities for almost 3 years, till his death on 17.06.2010. In the circumstances, it cannot be said that 1,00,000/- awarded by₹ the Tribunal towards compensation for pain and suffering, is high. 17. The Tribunal has awarded ₹1,00,000/as compensation towards loss of love and affection. The first respondent is the wife and respondents 2 and 3 are children of the deceased. They have lost their husband/father unexpectedly, while he was living healthy before the accident and consequential disabilities. Therefore, the compensation awarded towards love and affection cannot be said to be on a higher side. 18. Yet another argument of the learned Standing Counsel for the appellant is that the Tribunal should not have taken 5,000/- as the monthly income of the deceased. The₹ Tribunal has found that the deceased was a loading and unloading worker. The year of accident being 2007, any headload worker would have earned a minimum of 5,000/-₹ MACA No.1244/2014 : 11 : per month in any part of Kerala. In the circumstances, this Court finds no reason to interfere with the findings of the Tribunal in this regard. 19. In view of the discussions made hereinabove, the appeal filed by the appellant-insurer has to be allowed partly and compensation amount need to be varied. Accordingly, it is held that the respondents will be entitled to an additional compensation of **₹9,972/-** under the head loss of income for the family. The said additional amount will also bear interest at the rate of 8% per annum from the date of filing of the OP(MV), till payment. MACA is disposed of in the above lines. Sd/- **N. NAGARESH, JUDGE** aks/04/09/2020