United India Insurance Co. Ltd. v. Uma Devi R. and Others

M.A.C.A. No. 4663/2019 : 1 : ``` 2025:KER:24000 ``` **==> picture [57 x 58] intentionally omitted <==** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 21[ST] DAY OF MARCH 2025 / 30TH PHALGUNA, 1946 ## MACA NO. 4663 OF 2019 AGAINST THE AWARD DATED 06.02.2019 IN O.P(MV) NO.569 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI ## APPELLANT/3RD RESPONDENT IN THE O.P.(M.V): THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, ARAFA BUILDING COURT ROAD, P.O.MANJERI, PIN-676 121, REPRESENTED BY THE REGIONAL MANAGER, REGIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM BY ADV. SMT. DEEPA GEORGE ## RESPONDENTS/PETITIONERS 1 TO 4 IN THE O.P.(MV): 1 UMADEVI R., AGED 44 YEARS, W/O.VINOD KUMAR(LATE) KARAMAYIL HOUSE, KALAYANTHANI.P.O., ALAKODE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685 588. 2 AISWARYA VINOD, AGED 18 YEARS, D/O.VINOD KUMAR(NOW ATTAINED MAJORITY) KARAMAYIL HOUSE, KALAYANTHANI.P.O., ALAKODE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685 588. 3 RADHAMANI, AGED 69 YEARS, W/O.K.R.GOPALAKRISHNAN NAIR, VADAKKEDATH KARAMAYIL HOUSE, ALAKKOD, KALAYANTHANI.P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 588 4 K.R.GOPALAKRISHNAN NAIR, AGED 71 YEARS, S/O.RAMAKRISHNAN NAIR, VADAKKEDATH KARAMAYIL HOUSE, ALAKKOD, KALAYANTHANI.P.O., ALAKKODE, THODUPUZHA, IDUKKI DISTRICT, PIN-685 588. (IST PETITIONER IS THE WIFE, 2ND PETITIONER IS THE DAUGHTER, 3RD AND 4TH PETITIONER ARE THE PARENTS OF THE DECEASED VINOD M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 2 : **==> picture [57 x 58] intentionally omitted <==** KUMAR) BY ADVS. R1 & R2 BY SRI. PRAFIN JOSEPH ZACHARIA R3, R5 & R6 BY SMT. RAJEE P MATHEWS SRI.K.S.ARUN KUMAR SRI.JUSTINE JACOB SMT.BINDU MOHAN SMT.AMRUTHA K P SMT.AMRUTHA P S SHRI.VIJAY SANKAR V.H. SHRI.ARJUN KUMAR K.S. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2025, THE COURT ON 21.03.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 3 : **==> picture [57 x 58] intentionally omitted <==** ## **JOHNSON JOHN, J.** --------------------------------------------------------- M.A.C.A No. 4663 of 2019 -------------------------------------------------------Dated this the 21[st] day of March, 2025. ## **JUDGMENT** The 3[rd] respondent insurance company in O.P.(MV) No. 569 of 2019 on the file of the Motor Accident Claims Tribunal, Manjeri filed this appeal challenging the quantum of compensation fixed by the Tribunal under various heads. 2. The claim petition was filed by the legal representatives of the deceased Vinod Kumar, who died in a motor vehicle accident on 03.09.2014. According to the claim petitioners, on 03.09.2014 while the deceased was travelling in a jeep, car driven by the 1[st] respondent in a rash and negligent manner caused to hit the vehicle and thereby, the deceased sustained serious injuries and subsequently, succumbed to his injuries on the same day. The 2[nd] and 3[rd] respondents in the claim petition are the owner and insurer of the offending vehicle. 3. Before the Tribunal, PW1 examined and Exhibits A1 to A12 were marked from the side of the petitioners and from the side of respondents, Exhibits B1 and B2 were marked. 4. The Tribunal recorded a finding that the accident occurred because of the negligence on the part of the 1[st] respondent and that M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 4 : **==> picture [57 x 58] intentionally omitted <==** respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioners. The Tribunal awarded a total compensation of Rs.95,10,000/- to the petitioners. 5. Heard the learned counsel for the appellant insurance company and the learned counsel for the respondents/claim petitioners. 6. The learned counsel for the appellant argued that the Tribunal fixed the annual income of the deceased as Rs.7,99,471/- based on Exhibit A11 income tax return for the assessment year 2011-2012 and the same is on the higher side. It is argued that claim petitioners have not produced the income tax returns of the deceased relating to the relevant period. It is brought to my notice that Exhibit A9 is the income tax return for the assessment year 2009-2010 and Exhibit A10 is the income tax return for assessment year 2010-2011. 7. A perusal of Exhibits A9 to A11 will clearly show that there is considerable increase in the income of the deceased during the said period. It is true that the claim petitioners failed to produce the income tax returns of the deceased for the period after Exhibit A11; but, that cannot be accepted as a reason for rejecting Exhibits A9 to A11 for the M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 5 : **==> picture [57 x 58] intentionally omitted <==** purpose of fixing the income of the deceased. Even though the learned counsel for the appellant argued that in the absence of any authentic copy of the income tax return filed for the period covering the date of the accident, the Tribunal ought to have fixed a notional income without considering Exhibits A9 to A11, I find that the said argument cannot be accepted as the income tax returns filed for the periods prior to the occurrence can also be considered as relevant material for fixing the income of the deceased and therefore, I find that the Tribunal is justified in accepting Exhibit A11 income tax return for assessment year 20112012 for fixing the annual income of the deceased. 8. The learned counsel for the appellant pointed out that the gross total income as per Exhibit A11 is 8,21,081/- and the total tax paid is Rs.1,21,610/- and there occurred a clerical error when the Tribunal fixed the annual income as Rs.7,99,471/-. After deduction of the tax from gross total income in Exhibit A11, the amount will only be Rs.6,99,471/-. Therefore, I find that the said amount can be accepted as the annual income of the deceased for the purpose of calculating the compensation for loss of dependency. M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 6 : **==> picture [57 x 58] intentionally omitted <==** 9. The Tribunal made an addition of 25% towards future prospects and applied the multiplier of 14 and also made one-third deduction towards personal and living expenses of the deceased and the same is not under challenge. When the compensation for loss of dependency is calculated as per the revised annual income, the same would come to Rs.81,60,497/- [(6,99,471 + 25%) x 14 x 2/3]. 10. The learned counsel for the appellant argued that the Tribunal granted Rs.10,000/- towards pain and sufferings of the deceased and the same is not legally sustainable. Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 shows that the right to sue for compensation for pain and suffering would survive upon the legal heirs, if the injured died at a later point of time. ## 11. In _**Jyni and Others v. Raphel P. T. and Others**_ [2016 (2) KHC 870], a Division Bench of this Court held as follows: 36. Death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 7 : **==> picture [57 x 58] intentionally omitted <==** of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. In the instant case, the deceased succumbed to injuries on the date of accident itself. In such circumstances, Rs.10,000/- awarded by the Tribunal under the head pain and suffering represents just and reasonable compensation, which requires no enhancement in this appeal.” In this case, after the accident, the deceased succumbed to his injuries on the date of accident itself and therefore, in view of the above legal position, I find no reason to interfere with the compensation awarded by the Tribunal towards pain and sufferings of the deceased. 12. The learned counsel for the appellant argued that the Tribunal granted Rs.40,000/- towards loss of consortium and thereafter, granted Rs.1,00,000/- towards loss of love and affection and that the compensation for ‘loss of love and affection’ and ‘loss of consortium’ cannot be granted under separate heads. 13. The decision of the Hon'ble Supreme Court in _**National**_ _**Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680]**_ and M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 8 : **==> picture [57 x 58] intentionally omitted <==** _**Jagdish v. Mohan [(2018) 4 SCC 571]**_ would show that the reasonable amount payable on conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively and that the aforesaid amount should be enhanced by 10% in every three years. The Hon'ble Supreme ## Court in _**Rojalini Nayak & Ors v. Ajit Sahoo (2024 KHC Online**_ _**8300)**_ by adopting the above metric awarded a compensation of Rs.48,400/- towards loss of consortium and Rs.18,150/- each towards funeral expenses and loss of estate. Therefore, the amount awarded by the Tribunal towards funeral expenses and loss of estate will be modified to Rs.18,150/- each. ## 14. In _**United India Insurance Co. Ltd. v. Satinder Kaur**_ [2020 (3) KLT Online 1033], the Honourable Supreme Court held that loss of love and affection is comprehended in loss of consortium and there is no justification to award compensation towards loss of love and affection under a separate head. The decision of the Hon'ble Supreme Court in ## _**Shriram General Ins.Co.Ltd. v. Bhagat Singh Rawat (2023 KHC**_ _**Online 7244)**_ and the decision of this Court in _**Kunjandy L. and**_ M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 9 : **==> picture [57 x 58] intentionally omitted <==** _**Others v. Rajendran and Others**_ [2019 KHC 962] shows that once compensation under the head of consortium is awarded, claimants are not entitled for further compensation under the head, loss of love and affection. ## 15. In _**Sunita v. Vinod Singh**_ [2025 KHC Online 6249], the Hon’ble Supreme Court held thus: “...With regard to the loss of love and affection, _**Pranay Sethi**_ (supra) grants Rs.40,000/- (Rupees Forty Thousand) per head with escalation of 10% every three years for loss of consortium which has been interpreted in _**Magma General Insurance Co. Ltd. v Nanu Ram**_ , (2018) 18 SCC 130 to include spousal, parental, and filial consortium. Thus, there being five claimants the amount shall be (Rs.48,000/- x 5) which comes to Rs.2,40,000/- (Rupees Two Lakhs and Forty Thousand) payable under the head of loss of love and affection.” The claimants are the widow, child and parents of the deceased Vinod Kumar. Thus, there being 4 claimants, the amount of consortium shall be (48400 x 4), which comes to Rs.1,93,600/-. 16. In conclusion, the amount of compensation, as modified as a result of the above discussion is encapsulated, in a tabular format herein below: M.A.C.A. No. 4663/2019 ``` 2025:KER:24000 ``` : 10 : **==> picture [57 x 58] intentionally omitted <==** |Sl.<br>No|Particulars|Compensation<br>awarded by the<br>Tribunal (Rs.)|Final Amount<br>Payable| |---|---|---|---| |1|Loss of dependency|93,27,161.66|81,60,497/-| |2|Loss of estate|15,000/-|18,150/-| |3|Funeral expenses|15,000/-|18,150/-| |4|Loss of consortium|40,000/-|1,93,600/-| |5|Love and affection|1,00,000/-|NIL| |6|Transport to hospital|1,500/-|1,500/-| |7|Damage to clothingand articles|1,000/-|1,000/-| |8|Pain and sufferings|10,000/-|10,000/-| ||Total amount Payable|95,09,661.66|84,02,897/-| 17. Accordingly, the total amount of compensation payable to the petitioners is determined as Rs.84,02,897/-. In the result, this appeal is allowed in part, and the claim petitioners are allowed to recover the compensation amount of Rs.84,02,897/- (Rupees Eighty Four Lakhs Two Thousand Eight Hundred and Ninety Seven only) with interest at the rate of 9% per annum from the date of the claim petition till the date of realization with proportionate costs from the respondents. The appellant insurance company shall deposit the said amount together with interest and costs before the Tribunal within a period of three months from the date of receipt of a certified copy of this judgment. sd/- **JOHNSON JOHN, JUDGE.** Rv