Allowed

The New India Assurance Co. Ltd. v. Samuel

Kerala HC7 Jul 2022MACA/2818/2016

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal, reducing compensation awarded by the Motor Accident Claims Tribunal. The Court recalculated loss of dependency based on strict application of the 40% international income rule and Supreme Court precedents regarding loss of consortium and funeral expenses.

What did the court decide?

Total compensation awarded was reduced from Rs. 26,72,500 to Rs. 22,65,000 with 9% interest and costs.

The New India Assurance Co. Ltd. Vs Samuel — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

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THURSDAY, THE 7^TH DAY OF JULY 2022 / 16TH ASHADHA, 1944

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MACA NO. 2818 OF 2016

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AGAINST THE AWARD DATED 22.04.2016 IN OPMV 849/2009 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA

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APPELLANT/3RD RESPONDENT:

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THE NEW INDIA ASSURANCE CO LTD

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THE DIVISIONAL MANAGER, BEACH ROAD,KOLLAM, REPRESENTED BY ITS MANAGER,REGIONAL OFFICE, ERNAKULAM.

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BY ADV SRI.P.G.GANAPPAN

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RESPONDENT/CLAIMANTS AND RESPONDENTS 1 & 2:

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1 SAMUEL, S/O.DANIEL, JIBU BHAVAN, KADIKA,KAITHAPARAMBU.P.O., ENATHU VILLAGE,ADOOR TALUK.689 645.

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2 KUNJUMOL SAMUEL W/O.SAMUEL, DO.... DO.....

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3 JULIE SHAJI W/O.SHAJI, DO..... DO.......

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4 PHILIP MATHEW (DIED) S/O.T.V.MATHEW, KOLATHU VEEDU,NARIKKUZHY, KUMARAMPEROOR THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK.689 672.

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5 P.E.EASOW, S/O.EASOW, PALACKAMANNIL HOUSE,KOTTANADU.P.O., MALLAPPALLY.689 584.

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**ADDL.6 SIBY MATHEWS PHILIP, S/O PHILIP MATHEW KOLATHU VEEDU, NARIKUZHY, KUMPALAMPOIKA PO SOUTHERN SIDE OF PATHANAMTHITTA SEETHATHODU ROAD, MOB 9947053462 (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 06.10.2017 IN I.A.NO.3547/17 IN MAMCA 2818/16)

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BY ADVS. SRI.JOHN MATHEW SRI.ABRAHAM SAMSON

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MACA NO. 2818 OF 2016 ..2..

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SMT.LOVELY SAMSON SRI.MATHEW JOHN JMA SRI.VINU SASIDHARAN SRI.P.G.GANAPPAN, SC

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 2818 OF 2016 ..3..

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JUDGMENT

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The appellant is the 3^rd respondent in O.P.(MV) No.849/2009 on the files of the Additional Motor Accident Claims Tribunal-III, Pathanamthitta. The parties are referred to as per their status in the claim petition unless otherwise specifically mentioned.

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The petitioners are the legal heirs of deceased Jibu Samuel, who died in a motor vehicle accident on 06.06.2009 at Adoor-Enathu road. According to them, while Jibu was riding a motorcycle, a tipper lorry bearing registration No.KL-03-H-2702 driven by the 1^st respondent and owned by the 2^nd respondent hit the motorcycle and the deceased sustained serious injuries and succumbed to the injuries on the same day. The petitioners claimed an amount of Rs.25,00,000/- as compensation for the death of the deceased. According to the petitioners, the accident happened due to negligence on the part of the 1^st respondent.

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MACA NO. 2818 OF 2016 ..4..

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Before the Tribunal, respondents 1 and 2

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remained ex parte. On the side of the petitioners, Exts. A1 to A25 were marked and PW1 to PW3 were examined. No evidence was adduced on the side of the respondents. The 3^rd respondent, the insurer of the tipper lorry filed a written statement admitting that the lorry was having a valid insurance policy at the time of the accident, but disputing their liability on the ground that there was violation of conditions of policy. It was also contended that the deceased and two persons were traveling on the motorcycle at the time of the accident and that the deceased has contributed to the accident. It was further contended that the amount claimed by the petitioners is excessive and exorbitant.

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The Tribunal found that the accident happened due to the negligence of the driver of the Tipper lorry and awarded an amount of Rs.26,72,500/- as total compensation to the petitioners with 9% interest per

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MACA NO. 2818 OF 2016 ..5..

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annum from the date of petition till realisation and proportionate costs. The 3^rd respondent was directed to satisfy the award. The compensation awarded by the Tribunal under different heads is as follows:

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Sl. No	. Head of claim	Amount claim (in rupees)	Amount awarded (in rupees)
1.	Loss of dependency	39,00,000	22,95,000
2.	Loss of estate		50,000
3.	Transport to hosptial	2,000	2,500
4.	Damage to clothes	2000
5.	Others	3,82,000
6.	Medical expenditure
7.	Funeral expense	50,000	25,000
8.	Pain and suffering	5,00,000	Nil
9.	Loss of love, affection and old age support	2,00,000	3,00,000
10	Extra nourishment
	Total	47,06,000 limited to Rs.25,00,000)	26,72,500

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MACA NO. 2818 OF 2016 ..6..

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Aggrieved by the quantum of compensation

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awarded, the insurer has come up in appeal. It is contended by the appellant that the notional income of

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the deceased arrived at by the Tribunal is excessive and the Tribunal went wrong in adding 50% of the income towards future prospects. According to the appellant, since the deceased was a self-employed person without any fixed income, only 40% can be awarded towards future prospects. The appellant has also challenged the compensation awarded under the heads loss of estate, funeral expenses and loss of love and affection.

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Heard the learned counsel for the appellant and the learned counsel for the respondents.

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According to the petitioners, the deceased was an electrician in Dubai and was drawing 1170 Dirhams per month at the time of his death. Ext.A4 salary certificate of the deceased was not accepted by the

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MACA NO. 2818 OF 2016 ..7..

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Tribunal and the Tribunal found that there is no acceptable evidence that he was employed in any permanent post in UAE. Accordingly, the Tribunal fixed the notional income of the deceased as Rs.15,000/- per month, which he would have received in India in 2009. This Court, in Valsamma v . Binu Jose (2014 (1) KLT 10), has held that the standards to be applied while assessing the income of a person who is not permanently employed in a foreign country would be in the context of Indian standards. In New India Assurance Company Ltd. v . Divya [2021 (6) KLT 109], this Court on the basis of the ratio in Valsamma (supra) fixed the monthly income of a Mason during 2014 as Rs.25,000/-. Going by the said standards, I am not inclined to interfere with the income fixed by the Tribunal and I take the monthly income of the deceased as Rs.15,000/- for the purpose of computation of compensation.

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MACA NO. 2818 OF 2016 ..8..

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8.The Tribunal added 50% of the said income

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towards future prospects. The Tribunal went wrong in adding 50% of the income towards future prospects as the Tribunal found that there is no acceptable evidence that the deceased was employed in any permanent post in UAE. As per the decision of the Apex Court in National Insurance Company Limited v. Pranay Sethi and others [(2017) 16 SCC 680], only 40% can be added towards future prospects. By adding 40% of the income towards future prospects, the income of the deceased would come to Rs.21,000/- [15,000+6,000]. Since the deceased was aged 27 years at the time of accident, the multiplier to be adopted is '17'. The deceased was a bachelor and ½ of his monthly income has to be deducted towards personal and living expenses. Therefore, the compensation for loss of dependency is re-worked as Rs.21,42,000/- [21,000×12 x 17 x ½]. Since the Tribunal has awarded an amount of

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MACA NO. 2818 OF 2016 ..9..

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Rs.22,95,000/- under the head compensation for 'loss of dependency', the excess amount of Rs.1,53,000/- [22,95,000-21,42,000] has to be deducted from the said head.

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No amount has been awarded by the Tribunal under the head loss of consortium. However, an amount of Rs.3,00,000/- has been awarded towards loss of love, affection and old age support. Following the ratio in Pranay Sethi (supra) followed in Jayasree N. and others v . Cholamandalam MS General Insurance Company Ltd [2021 (6) KHC 163], the petitioners 1 and 2 are entitled to Rs.44,000/- [40,000 + 10% hike for three years] each for loss of consortium. Accordingly, for loss of consortium, they are entitled for Rs.88,000/- (44,000×2). The Hon'ble Supreme Court has held in United India Insurance Co.Ltd. v. Satinder Kaur [AIR 2020 SC 3076] that, when compensation is awarded under the head loss of

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MACA NO. 2818 OF 2016 ..10..

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consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Since the petitioners 1 and 2 are entitled for Rs.88,000/- towards loss of consortium, no further amount is to be awarded under the head loss of love and affection. Therefore, Rs.3,00,000/- already awarded under the head loss of love, affection and old age support has to be deducted from the total compensation.

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Towards loss of estate, the Tribunal has awarded an amount of Rs.50,000/-. Going by the decisions in Pranay Sethi and Jayasree (supra), the petitioners are entitled only for an amount of Rs.16,500/- [15,000+10% hike for three years] under the head loss of estate. Therefore, the excess amount of Rs.33,500/- [50,000-16,500] has to be deducted from the total compensation.

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MACA NO. 2818 OF 2016 ..11..

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Towards funeral expenses, the Tribunal has awarded an amount of Rs.25,000/-. In the light of the decisions in Pranay Sethi and Jayasree (supra), the petitioners are entitled to get only an amount of Rs.16,500/- [15,000+10% hike for three years] under the head compensation for funeral expenses. Therefore, an amount of Rs.8,500/- has to be deducted under the said head.

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In the result, the appeal is allowed as above holding that the petitioners are entitled only for an amount of Rs.22,65,000/- (Rupees twenty two lakhs and sixty five thousand only) [26,72,5004,07,000(1,53,000+33,500+ 8,500+2,12,000) as total compensation. It is submitted by the learned counsel for the appellant that, pursuant to the order dated 08.09.2016 of this Court, the appellant had deposited 50% of the award amount before the Tribunal. The appellant insurance company shall deposit the balance

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MACA NO. 2818 OF 2016 ..12..

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amount as modified by this Court with 9% interest and costs before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SB/07/07/2022

The New India Assurance Co. Ltd. v. Samuel

Case brief

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The New India Assurance Co. Ltd. v. Samuel

Case brief

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