Allowed

United India Insurance Company Limited v. a.K.John

Kerala HC13 Dec 2021MACA/2180/2016

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal against an award by the Motor Accidents Claims Tribunal. The Court recalculated compensation by reducing the deceased's income base, applying tax deductions, and re-evaluating分项 compensations like funeral expenses and loss of dependency in light of Supreme Court precedents.

What did the court decide?

Compensation awarded by the Tribunal reduced from Rs. 88,81,000/- to Rs. 76,86,296/- with 9% interest per annum.

United India Insurance Company Limited Vs a.K.John — Motor Accident Claims | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

¶4

MONDAY, THE 13^TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943

¶5

MACA NO. 2180 OF 2016

¶6

AGAINST THE AWARD DATED 16.03.2016 IN OPMV 433/2008 OF ADDITIONAL

¶7

MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, THIRUVANANTHAPURAM

¶8

APPELLANT/2ND RESPONDENT:

¶9

UNITED INDIA INSURANCE COMPANY LIMITED BANGALORE, NOW REPRESENTED BY ITS BRANCH MANAGER, REGIONAL OFFICE,"SHARANYA", HOSPITAL ROAD, KOCHI-11.

¶10

BY ADVS.

¶11

SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR

¶12

RESPONDENT/S:

¶13

1 A.K.JOHN, S/O KURIAN, HOUSE NO.18, JAYAREKHA, TC 3/2314,CHITHRA NAGAR, PATTOM P.O.,THIRUVANANTHAPURAM -695 004.

¶14

2 ROSAMMA JOHN WO.A.K.JOHN HOUSE NO.18, JAYAREKHA, TC 3/2314, CHITHRA NAGAR, PATTOM P.O., THIRUVANANTHAPURAM -695 004.

¶15

3 RINCY JOHN D/O.A.K.JOHN HOUSE NO.18, JAYAREKHA, TC 3/2314, CHITHRA NAGAR, PATTOM P.O., THIRUVANANTHAPURAM -695 004.

¶16

R1 TO R3 BY ADV SRI.M.SREEKUMAR

¶17

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

MACA NO. 2180 OF 2016 ..2..

¶19

JUDGMENT

¶20

This appeal is filed by the Insurance Company challenging the compensation awarded by the Additional Motor Accidents Claims Tribunal -IV, Thiruvananthapuram in O.P.(MV) No.433 of 2008. The respondents in this appeal were the petitioners in the claim petition, who are the parents and sister of deceased Ricky John. The parties in this appeal are referred to as per the status in the claim petition.

¶21

The case of the petitioners is that on 05/06/2007 at about 8.45 p.m, while the deceased was walking through Sarjapura main road near Agrara Circle, Bangalore, a BMTC bus bearing registration No. KA-01/F-1706 driven by the 3^rd respondent came in a rash and negligent manner and hit the deceased. Even though he was rushed to the hospital, he succumbed to the injuries. The deceased was

¶22

MACA NO. 2180 OF 2016 ..3..

¶23

aged 24 and was working as an Accounts Manager in WIPRO Infotech, earning Rs. 58,334/- per month. The 1^st respondent is the owner of the bus bearing registration No. KA-01/F-1706 and the 2^nd respondent is its insurer. The petitioners claimed an amount of Rs. 92,00,424/- as compensation for the death of Sri. Ricky John, which was limited to Rs.90,00,000/-.

¶24

Respondents 1 and 3 were set ex-parte. The 2^nd respondent insurer filed written statement admitting that the vehicle had a valid insurance policy at the time of the accident; but, disputed the age, occupation and income of the deceased. It was further contended by the insurer that the accident happened due to the negligence of the deceased and the claim made by the petitioners under various heads is excessive and exorbitant.

¶25

On the side of the petitioners, no oral evidence was adduced; but Exts. A1 to A13 documents were marked. On

¶26

MACA NO. 2180 OF 2016 ..4..

¶27

the side of the 2^nd respondent, no evidence was adduced.

¶28

The Tribunal found that the accident happened due

¶29

to the negligence of the 3^rd respondent driver. The Tribunal

¶30

awarded an amount of Rs.88,81,000/- as total compensation with 9% interest per annum and proportionate costs. The insurer was directed to satisfy the award. Compensation was awarded under various heads as follows:

¶31

Sl. No	Head of Claim	Amount claimed	Amount awarded
1	Transport to hospital	Rs. 2,000/-	Rs. 1,000/-
2	Damage to clothing and other articles	Rs. 3,000/-	Rs. 1,000/-
3	Medical expenses	Rs. 25,000/-	Nil
4	Funeral expenses	Rs. 10,000/-	Rs. 25,000/-
5	Pain and sufferings	Rs. 10,000/-	Rs. 10,000/-
6	Loss of	Rs. 91,23,424/-	Rs. 86,94,000/-

¶32

MACA NO. 2180 OF 2016 ..5..

¶33

	dependency
7	Loss of love and affection	Rs. 25,000/-	Rs. 1 lakh
8	Loss of estate	Rs. 2,000/-	Rs. 50,000/-
	Total	Rs. 92,00,424/-	Rs. 88,81,000/-

¶34

According to the Appellant insurer, the amounts awarded under various heads are excessive and without any basis. The main dispute is regarding the income of the deceased taken by the Tribunal for assessing the compensation. The petitioners have claimed that the deceased was an Accounts Manager in WIPRO Infotech, Bangalore, earning Rs. 58,334/- per month. It is stated in the claim petition that the salary stack applicable after 3 months from the date of joining is Rs.67,084/. In order to prove the educational qualifications, occupation and income of the deceased, the petitioners have produced Exts.A8 to A13 documents. Ext. A8 is the Secondary School

¶35

MACA NO. 2180 OF 2016 ..6..

¶36

Examination Certificate, Ext. A9 is the degree certificate (B tech – Mechanical) and Ext.A10 is the mark list of the deceased in P.G. Programme in International Business. Ext.A11 is the appointment order and Ext.A12 is the salary certificate of the deceased issued by his employer WIPRO Infotech. Ext.A13 is the statement of benefits for a period of 18 days issued by the employer. The Tribunal took the monthly income of the deceased as Rs.67,083/- for assessing the compensation.

¶37

Ext.A11 appointment order dated 03.05.2007 shows the gross monthly salary stack applicable for the first 3 months from the date of joining as Rs.58,334/- and the salary stack applicable after 3 months from the date of joining as Rs.67,084/-. Unfortunately, the deceased could work only for 18 days after he got appointment as Accounts Manager in WIPRO Infotech. Therefore, the income of the deceased as on the date of the accident has

¶38

MACA NO. 2180 OF 2016 ..7..

¶39

to be taken as Rs.58,334/- per month and not Rs.67,084/as taken by the Tribunal. In Ext.A13 statement of benefits for the period of 18 days the deceased worked in WIPRO Infotech, Ranchi, the employer has assessed the benefits taking in the account the salary stack as applicable for the first 3 months from the date of joining. Ext.P12 salary certificate dated 02-02-2016 issued by the employer shows the monthly gross salary of the deceased as Rs.67,084/and the designation is shown as 'Senior Executive-Client Solutions'. Probably this certificate reflects the salary of the deceased which he would have drawn 3 months after the date of joining. In National Insurance Co. Ltd. v . Pranay Sethi [2017 (16) SCC 680] , the Constitution Bench of the Hon'ble Supreme Court observed that, determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as

¶40

MACA NO. 2180 OF 2016 ..8..

¶41

postulated under S.168 of the M.V.Act. The Court held that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. It was also held that actual salary should be, actual salary less tax. It is taking into consideration the status of the employee, his educational qualification, potentiality to earn and all other aspects an addition of 50% of actual salary to the income of the deceased is fixed while computing future prospects. Therefore, the Tribunal went wrong in taking the salary of the deceased which he would have drawn after 3 months after the date of joining as the income of the deceased and adding 50% to that income towards future prospects. Going by Exts.A11 and A13, the income of the deceased as on the date of the accident has to be taken as Rs.58,334/per month. As per the decision of the Hon'ble Supreme

¶42

MACA NO. 2180 OF 2016 ..9..

¶43

Court in Kalpanaraj and others v . Tamil Nadu State Transport Corporation [(2015) 2 SCC 764] , income tax and professional tax has to be deducted from the salary of the deceased while determining the monthly income. The deceased had paid Rs.200/- as professional tax as per the slab applicable in State of Karnataka. This amount has to be deducted from the monthly salary of Rs.58,334/-. The monthly salary after deduction of professional tax will come to Rs.58,134/.The Tribunal has deducted 20% from the income towards income tax as per the income tax rates applicable for the concerned financial year. Therefore, the actual salary of the deceased is re-fixed as Rs.46,508/- .

¶44

The deceased was aged 24 years at the time of death. As held in Pranay Sethi (supra), an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made.

¶45

MACA NO. 2180 OF 2016 ..10..

¶46

Therefore, the income of the deceased adding 50% towards future prospects would come to Rs.69,762/ - (Rs.46,508+23,254).

¶47

The deceased was a bachelor and he left behind his parents and an unmarried sister. As per the decision of the Hon'ble Supreme Court in Sarla Verma v . Delhi Transport Corporation [(2009)(6) SCC 121] , 50% of the monthly income has to be deducted towards the personal and living expenses in case of bachelors. Therefore, after deduction of 50% towards the personal and living expenses, the income of the deceased would come to Rs.34,881/- .

¶48

Since the deceased was aged 24 years at the time of death, the Tribunal has rightly taken the multiplier as '18'. Therefore, under the head of loss of dependency, the petitioners are entitled only for an amount of Rs.75,34,296/- (34,881×12×18) as against Rs.88,81,000/-

¶49

MACA NO. 2180 OF 2016 ..11..

¶50

awarded by the Tribunal. An amount of Rs.13,46,704/- (Rs.88,81,000- Rs.75,34,296) is therefore to be deducted from the compensation awarded under the head of loss of dependency.

¶51

The claim for medical expenses was rejected by the Tribunal for want of evidence. It is seen from records that the deceased succumbed to injuries on way to hospital. In the absence of evidence, I am not interfering with the findings of the Tribunal under the said head.

¶52

The Tribunal has awarded an amount of Rs.10,000/- towards pain and sufferings. The petitioners are not entitled for any amount under the said head in the light of the decision in United India Insurance Co.Ltd. v Satinder Kaur [AIR 2020 SC 3076] . So the amount of Rs.10,000/- awarded under the said head is to be deducted from the total compensation arrived at.

¶53

MACA NO. 2180 OF 2016 ..12..

¶54

For compensation under the head funeral expenses, Rs.25,000/- has been awarded. As per the decision in United India Insurance Co.Ltd. v Satinder Kaur (supra) the petitioners are entitled to only Rs.15,000/- under the head funeral expenses. Therefore, an amount of Rs. 10,000/- has to be deducted from the total compensation.

¶55

The petitioners were granted Rs.1,00,000/towards loss of love and affection. The petitioners are entitled to Rs.1,20,000/- (Rs. 40,000/ each) towards loss of consortium. The Hon'ble Supreme Court has held in United India Insurance Co.Ltd. v Satinder Kaur (supra), that when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a

¶56

separate head. Therefore, since Rs.1,20,000/- is awarded under the head loss of consortium, the petitioners are not

¶57

MACA NO. 2180 OF 2016 ..13..

¶58

entitled for any amount under the head loss of love and affection.

¶59

Towards loss of estate, an amount of Rs. 50,000/-

¶60

has been awarded by the Tribunal. In the light of the decision in United India Insurance Co.Ltd. v Satinder Kaur (supra), the petitioners are entitled only for an amount of Rs.15,000/- towards loss of estate. Therefore, Rs.35,000/- has to be deducted from the compensation awarded under the said head.

¶61

Thus, on a re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I hold that the compensation awarded by the Tribunal in the impugned award is on the higher side and has to be modified and reduced as held above and given in the table below for easy reference.

¶62

MACA NO. 2180 OF 2016 ..14..

¶63

Sl. No	Head of Claim	Amount awarded by Tribunal	Amount modified and recalculated by this Court
1	Transport to hospital	Rs. 1,000/-	Rs. 1,000/-
2	Damage to clothing and other articles	Rs. 1,000/-	Rs. 1,000/-
3	Medical expenses	Nil	-
4	Funeral expenses	Rs. 25,000/-	Rs.15,000/-
5	Pain and sufferings	Rs. 10,000/-	-
6	Loss of dependency	Rs. 86,94,000/-	Rs.75,34,296
7	Loss of love and affection (modified as loss of consortium by this Court)	Rs. 1,00,000/-	Rs.1,20,000/-
8	Loss of estate	Rs. 50,000/-	Rs.15,000/-
	Total	Rs. 88,81,000/-	Rs.76,86,296/-

¶64

In the result, the appeal is allowed holding that the respondents/petitioners are entitled only for an amount

¶65

of Rs.76,86,296/- instead of Rs.88,81,000/- awarded by

¶66

MACA NO. 2180 OF 2016 ..15..

¶67

the Tribunal with 9% interest per annum and proportionate costs.

¶68

There is already an order dated 01.08.2016 passed by this Court directing the appellant/2^nd respondent insurer to deposit before the Tribunal 50% of the amount awarded by the Tribunal and to disburse Rs.2,00,000/- each to petitioners 1 and 2 and Rs.1,00,000/- to the 3^rd petitioner and the balance amount to be kept in fixed deposit in a Nationalised Bank in the joint names of the petitioners 1 and 2 for a period of three years, subject to further orders to be passed by this Court. The appellant/2^nd respondent shall deposit the balance amount as modified by this Court with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation amount so deposited including the amount in deposit in the Nationalised Bank to the

¶69

MACA NO. 2180 OF 2016 ..16..

¶70

respondents/petitioners in the same proportion as directed by the Tribunal and in accordance with law.

¶71

Sd/-

¶72

MURALI PURUSHOTHAMAN

¶73

JUDGE

¶74