Allowed

Ammini Joy Karmal Sebastian v. the New India Assurance Co. Ltd.

Kerala HC12 Mar 2024MACA/1358/2012

Case brief

AI extract

What is this about?

Motor accident death of a 21-year-old; appeal sought enhancement of Tribunal's award. Court raised notional income to Rs.6,500, applied multiplier 18 with 40% future prospects, and enhanced consortium, funeral, and estate amounts per Supreme Court precedents.

What did the court decide?

Additional compensation of Rs.7,04,800/- awarded against insurer with interest as ordered by Tribunal, proportionate costs, payable within three months.

Ammini Joy Karmal Sebastian Vs the New India Assurance… — Motor Accident Claims | Kerala HC (2024)

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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 ZIYAD RAHMAN A.A.

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TUESDAY, THE 12^TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945

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MACA NO. 1358 OF 2012

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AGAINST THE ORDER/JUDGMENT DATED 29.12.2011 IN OPMV NO.368 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANT/PETITIONERS:

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1 AMMINI JOY KARMAL SEBASTIAN PARAKUZHY VEEDU, PARELPALLY VAZHAPPALLY EAST, CHANGANACHERRY

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2 JOJI SEBASTIAN PARAKUZHY VEEDU, PARELPALLY, VAZHAPPALLY EAST, CHANGANACHERRY

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BY ADV SRI.P.S.PRADEEP

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RESPONDENT/RESPONDENT NO.3:

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THE NEW INDIA ASSURANCE CO. LTD. CHANGANACHERRY, KOTTAYAM 686101 BY ADV SRI.P.G.GANAPPAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No. 1358 of 2012

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JUDGMENT

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The appellants are the petitioners in O.P(M.V)No.368/2009 on the files of the Motor Accidents Claims Tribunal, Kottayam. The said claim petition was submitted by them seeking compensation for the death of one Antony Sebastian due to the injuries sustained to him in a motor accident that occurred on 17.10.2008. 2. According to the appellants, the accident occurred, when the motorcycle ridden by the deceased was hit by a bus bearing Registration No.KL-07/R 2628 driven by the 1^st respondent in a rash and negligent manner. The 2^nd respondent was the owner of the said bus and it was insured with the 3^rd respondent in the claim petition. The deceased was aged 21 years at the time of the accident and he was working as a representative of M/s.Euro Coatings and Chemicals, with a monthly income of Rs.10,000/-. The deceased was the son of the 1^st appellant and the brother of the 2^nd appellant. The claim petition was submitted in such circumstances.

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The respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy for the bus. However, they denied negligence on the part of the

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M.A.C.A No. 1358 of 2012

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1^st respondent, and according to them the accident occurred due to the negligence of the deceased himself. The quantum of compensation was also disputed by them.

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To substantiate the contentions, the appellants produced and marked Exts.A1 to A6 and from the side of the respondents Exts.B1 and B2 were marked. After the trial, the Tribunal arrived at the finding that the accident occurred due to the negligence of the 1^st respondent and being the insurer of the said vehicle, the respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,62,000/- and the said amount was directed to be deposited by the respondent, along with interest at the rate of 7.5% per annum from the date of petition till realisation and with proportionate costs. This appeal is submitted by the appellants seeking enhancement of compensation as they were dissatisfied with the quantum of compensation awarded by the Tribunal.

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Heard Adv.Sri.P.S.Pradeep, the learned counsel

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appearing for the appellant and Adv.Sri.P.G.Ganappan, the learned counsel appearing for the respondent.

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M.A.C.A No. 1358 of 2012

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The only question that arises for consideration is whether just compensation was awarded by the Tribunal or not and whether any enhancement is required. On carefully going through the amounts awarded by the Tribunal under various heads, I find that certain heads require reconsideration.

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The first aspect to be considered is with respect to the compensation granted for loss of dependency. The Tribunal calculated the compensation by taking the monthly income of Rs.4,000/- and applying the multiplier of '13' which pertains to the age of the 1^st appellant. No addition towards future prospects was also made. Firstly, the monthly income of Rs.4,000/- appears to be very low, considering the fact that the accident in this case occurred in the year 2008. Of course it is true that, even though a monthly income of Rs.10,000/- was claimed, no documents were produced to substantiate the employment or the income derived therefrom. Even if that be so, the amount of Rs.4,000/- is not reasonable. In this regard, it is to be noted that, when the method of computation of monthly income evolved from the principles laid down by the Hon’ble Supreme Court in Ramachandrappa V.

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Manager, Royal Sundaram Alliance Insurance Co. Ltd

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M.A.C.A No. 1358 of 2012

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[(2011) 13 SCC 236] and Syed Sadik V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], is adopted, the basic monthly income has to be fixed for an ordinary employee as Rs.4,500/- for the year 2004. To determine the monthly income for the subsequent years, an addition of Rs.500/per year is to be made. When that computation is adopted, the monthly income for the year 2008, can be reasonably determined as Rs.6,500/-. In the absence of any other evidence, I deem it appropriate to fix Rs.6,500/- in this case for assessment of compensation for dependency.

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As the deceased was aged 21 years at the time of the accident, the proper multiplier that has to be applied in the light of Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802] and National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], was '18' irrespective of the fact that he died as a bachelor. It was categorically observed by the Hon’ble Supreme Court that, even in the case of a bachelor, the multiplier has to be taken on the basis of the age of the deceased and not with reference to the age of the parents of the deceased. Therefore, '18 ' is accepted as the multiplier.

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M.A.C.A No. 1358 of 2012

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Since the deceased comes within the age group of less than 40 years, an addition of 40% has to be made towards future prospects in the light of the Pranay Sethi (supra) . Thus, while re-assessing the compensation with the above criteria, the amount of compensation towards loss of dependency would come to Rs.9,82,800/- [(6,500+40%) 12X 18 X 1/2). The amount already awarded by the Tribunal towards the said head was Rs.3,12,000/and thus, the additional compensation would come to Rs.6,70,800/-.

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The amount awarded by the Tribunal towards funeral expenses was Rs.6,000/- and in the light of the Pranay Sethi (supra) a further sum of Rs.9,000/- is awarded. Similarly a further sum of Rs.5,000/- is awarded towards loss of estate as the amount awarded by the Tribunal under this head was only Rs.10,000/-.

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The next head which requires consideration is loss of consortium. In the light of observation made in Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)] and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], the

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M.A.C.A No. 1358 of 2012

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1^st appellant being the mother of the deceased, was entitled for compensation for loss of consortium at the rate of Rs.40,000/-. However, the Tribunal has awarded compensation of Rs.20,000/towards loss of love and affection. In Satwinder Kaur (supra), it was held that, when compensation is awarded for loss of consortium, further compensation for loss of love and affection is not necessary. Therefore the said amount can be adjusted towards the compensation determined for loss of consortium by this Court. Thus, the additional compensation for loss of consortium is determined as Rs.20,000/-. Thus, the total additional compensation is fixed as Rs.7,04,800/- (6,70,800+ 9,000 + 5,000 + 20,000).

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In the result, this appeal is allowed. The award dated 29.12.2011 passed by the Motor Accidents Claims Tribunal, Kottayam in O.P(MV)No.368/2009 is hereby modified by granting an additional compensation of Rs.7,04,800/- (Rupees seven lakhs four thousand eight hundred only). The said amount shall be deposited by the respondent with interest at the rate as ordered by the Tribunal and with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment.

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M.A.C.A No. 1358 of 2012

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It is further ordered that, the claimants shall furnish the details of PAN card Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the receipt of a copy of this judgment. In case, they fail to furnish the said details it shall be open for the insurance company to deposit the said amount before the Tribunal.

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However, it is clarified that, as per order dated 25.01.2024 in CMA No.1/2021 in MJC No.14/2021, this court excluded the period from 09.04.2018 till 03.02.2021, the period during which the appeal was dismissed and till the application for restoring the appeal was filed, and hence the respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation.

Sd/-

ZIYAD RAHMAN A.A

JUDGE

rpk

Ammini Joy Karmal Sebastian v. the New India Assurance Co. Ltd.

Case brief

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Ammini Joy Karmal Sebastian v. the New India Assurance Co. Ltd.

Case brief

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