Aboobacker and Ayisha v The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.179 OF 2013** **AGAINST THE AWARD IN OPMV 721/2009 DATED 28-09-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANTS/PETITIONERS:** **1 ABOOBACKER AGED 51 YEARS S/O.SYED, PUTHIYIL THOTTIPARAMBIL HOUSE, CHETHALLUR P.O., THACHANATTUKKARA, THIRURANGADI, PALAKKAD DISTRICT. 2 AYISHA AGED 46 YEARS W/O.ABOOBACKER,PUTHIYIL THOTTIPARAMBIL, CHETHALLUR P.O., THACHANATTUKKARA, THIRURANGADI, PALAKKAD DISTRICT. BY ADVS.** **SRI.P.SAMSUDIN SMT.NIMA JACOB** ## **RESPONDENT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE,MALAPPURAM - 676 505.** **R1 BY ADV. SRI.K.C.SANTHOSHKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.179 OF 2013** **2** ## **JUDGMENT** ## **Dated this the 7th day of April 2021** The appellants are the petitioners in O.P.(MV) No.721 of 2009 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondent in this appeal was the 3[rd] respondent in the claim petition. The parties are, for the sake of convenience, referred to as per the status in the claim petition. 2. The facts in brief, relevant for the determination in the appeal, are: on 15.12.2008 when the son of the petitioners named Sri.Muhammaed Basheer (deceased) was riding a motor cycle bearing registration No.KL-15-711, a Mahindra Pick Up lorry bearing registration No.TN-29 H 3862 (offending vehicle) coming from Perinthalmanna side, hit the motor cycle of the deceased. The deceased sustained grievous injuries and was taken to Al-shifa Hospital Perinthalmanna, where he succumbed to his injuries on 17.12.2008. The offending vehicle was driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with **MACA.No.179 OF 2013** **3** the 3[rd] respondent. The 4[th] respondent was the owner of the motor cycle. The accident occurred solely due to the negligence on the part of the 1[st] respondent. The petitioners claimed that the deceased was an ITC diploma holder and was employed in the Kingdom of Saudi Arabia as a mobile technician and earning a monthly income of Rs.60,000/-. Therefore, the respondents 1 to 3 were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.21,54,000/-, but limited to Rs.12,00,000/-. 3. The respondents 1, 2 and 4 did not contest the proceedings and were set ex parte. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. However, it was contended that the accident occurred due to the negligence on the part of the deceased, who could have easily averted the accident. The amount of compensation claimed under the different heads was excessive. 4. The petitioners marked Exhibits A1 to A16 in **MACA.No.179 OF 2013** **4** evidence. The respondents did not let in any contra evidence. 5. The Tribunal, after analyzing the pleadings and materials on record, by the impugned award allowed the claim petition in part by holding that the petitioners were entitled for a compensation of Rs.7,99,000/- with interest at the rate of 9% per annum from the date of petition till the date of realization with proportion to the costs. The 3[rd] respondent was directed to pay the compensation amount. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in the appeal. 7. Heard Sri.P.Samsudin, the learned counsel appearing for the appellants/petitioners and Sri.K.C. Santhosh Kumar, the learned counsel appearing for the respondent/Insurance Company. 8. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. A Constitution Bench of the Hon'ble Supreme **MACA.No.179 OF 2013** **5** Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. Ext.A2 charge sheet filed by the Police after investigation clearly substantiates the fact that the accident occurred solely due to the negligence on the part of the 1[st] respondent. Admittedly, the 2[nd] respondent is the owner of the offending vehicle and the 3[rd] respondent is the insurer of the offending vehicle. Therefore, the 3[rd] respondent is liable to indemnify the 2[nd] respondent for the compensation payable on account of the negligence on the part of the 1[st] respondent. 11. The principal area of dispute in this appeal is **MACA.No.179 OF 2013** **6** regarding the notional income of the deceased fixed by the Tribunal. The petitioners have claimed that the deceased was an ITC diploma holder and was working as a mobile technician in the Kingdom of Saudi Arabia and earning a monthly income of Rs.60,000/-. However, they did not produce any documents to substantiate their assertion. The petitioners only produced Ext.A9 passport to prove that deceased had a valid visa at the time of the accident. Therefore, it is to be assumed that the deceased was working abroad. 12. The Hon’ble Supreme Court in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others** [2020 (3) KHC 760] has gone on to hold that in order to substantiate the income of a person who is alleged to be employed abroad, the same has to be attested by the Indian Consulate / Embassy of that particular country. 13. In the instant case, there is nothing on record to prove the income of the deceased. 14. A Division Bench of this Court in **Valsamma v.** **MACA.No.179 OF 2013** **7** **Binu Jose** [2014 (1) KLT 10] has held that while assessing the income of a person who is not permanently employed in a foreign country, Indian standards have to be adopted to fix the notional income of that particular person. 15. In **Pushkar Mehra v. Brij Mohan Kushwaha And Others** [(2015) 12 SCC 688], the Hon’ble Supreme Court has fixed the notional income of a skilled labourer, in the year 2007, at Rs.7000/- per month. 16. Admittedly, the petitioners have proved as per Ext.A7 that the deceased was an ITC diploma holder. Even though they asserted that he was working as a Mobile Technician in the Kingdom of Saudi Arabia, they were not in a position to produce any documents to prove his salary/income. In the said circumstances, following the ratio in **Valsamma v. Binu Jose** (supra) and considering the fact that the deceased was a skilled technician, I am of the considered opinion that his notional income can safely be fixed at Rs.15,000/- per month instead of Rs.9,000/- fixed by the Tribunal. **MACA.No.179 OF 2013** **8** ## **Multiplier** 17. The Tribunal has fixed the multiplier at 14 taking into account the age of the 2[nd] petitioner. This is erroneous, in view of the law laid down in **National Insurance Company Ltd. v. Pranay Sethi** (supra). The relevant age to be taken to fix the multiplier is the age of the deceased. As the deceased was 27 years at the time of his death, the relevant multiplier is 17. ## **Loss of dependency with future prospects.** 18. In **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)] and **National Insurance Company Ltd. v. Pranay Sethi** (supra), the Hon’ble Supreme Court has held that the dependents of the deceased are also entitled for future prospects in addition to compensation under the head ‘loss of dependency’. However, as the deceased was a bachelor, 50% of the compensation has to be deducted towards his personal living expenses. 19. Following the above parameters i.e., fixing the **MACA.No.179 OF 2013** **9** notional income of the deceased at Rs.15,000/-, the multiplier at 17, considering that the deceased was a bachelor and 40% to be awarded as future prospects, I refix the compensation under the head ‘loss due to dependency’ with future prospects at Rs.21,42,000/- instead of Rs.7,56,000/- fixed by the Tribunal. ## **Conventional Heads.** 20. In **National Insurance Company Ltd. v. Pranay Sethi** (supra) and **Sarla Verma v. Delhi Transport Corporation** (supra), the Hon’ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000 and Rs.40,000/- respectively. In the said circumstances, I refix the compensation under the head ‘funeral expenses’ at Rs.15,000/- instead of Rs.3000/fixed by the Tribunal, Rs.15,000/- under the ‘head loss of estate’ instead of Rs.5,000/- fixed by the Tribunal and Rs.80,000/- towards ‘filial consortium’, where no amount **MACA.No.179 OF 2013** **10** was awarded by the Tribunal. ## **Other heads of claim.** 21. With respect to other heads of claim namely ‘transport’, ‘clothing’ and ‘bystander expenses’, the Tribunal has not awarded any amount. I feel that an amount of Rs.1000/- each under the above three heads can be awarded as reasonable expenses. ## **Love and Affection** 22. With respect to compensation under the ‘head love and affection’, in light of the law laid down by this Court in **Kunjandy v. Rajendran** [2020 (2) KLT 315] that if compensation is awarded under the head ‘loss of consortium’, no amount shall be awarded under the head ‘loss of love and affection’. Hence, I set aside the amount of Rs.10,000/- awarded by the Tribunal under the said head. ## **Medical Expenses** 23. With respect to the amount of Rs.25,000/awarded by the Tribunal under the head ‘medical expenses’, I find the same to be reasonable and just. **MACA.No.179 OF 2013** **11** 24. On an overall re-appreciation of the pleadings, materials on record and the law laid down by Hon’ble Supreme Court in the afore-cited decisions, I am of the firm opinion that the appellants/petitioners are entitled for enhancement and compensation as modified and recalculated above and given in the table below for easy reference. |Sl.N<br>o.|Heads of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amount<br>modified<br>and<br>recalculate<br>d by this<br>Court (in<br>rupees)| |---|---|---|---| |1|Transport|0|1000/-| |2|Clothing|0|1000/-| |3|Bystander<br>expenses|0|1000/-| |4|Funeralexpenses|3000/-|15,000/-| |5|Painand suffering|0|10,000/-| |6|Love and affection|10,000/-|0| |7|Loss of estate|5,000/-|15,000/-| |8|Loss ofconsortium|0|80,000/-| |9|Medicalexpenses|25,000/-|25,000/-| |10|Loss due to<br>dependency with<br>future prospects|7,56,000/-|21,42,000/-| ||Total|7,99,000/-|22,90,000/-| **MACA.No.179 OF 2013** **12** In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.14,91,000/- with interest at the rate of 9% per annum on the enhanced compensation from the date of petition till the date of realization and proportionate costs. The respondent/Insurance Company shall deposit the enhanced compensation before the Tribunal with proportionate interest and costs within a period of two months from the date of receipt of a certified copy of this judgment after deducting the liability of the appellants/petitioners towards balance court fee, if any. The appellants/petitioners will be at liberty to move the Tribunal for withdrawal of the enhanced compensation. **Sd/C.S.DIAS JUDGE** **SCS**