Baby M.N. and Others v. Dinesan, Shajan Varghese, The New India Assurance Company Ltd., United India Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 18TH DAY OF DECEMBER 2017 / 27TH AGRAHAYANA, 1939** ## **MACA.No. 1580 of 2013** **AGAINST THE AWARD IN OPMV 427/2007 OF THE ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM, DATED 04-06-2012** ## **APPELLANT(S)/PETITIONERS:** **1 BABY M.N., AGED 31, W/O.ANILKUMAR AYODYA PARAMBU, NOW RESIDING AT HOUSE NO.22/1617, JUBILY LANE, EDAKOCHI, KOCHI-10.** **2 ABHILASH ANIL, AGED 8 YEARS, S/O.ANILKUMAR MINOR, REPRESENTED BY HIS NATURAL GUARDIAN AND MOTHER BABY M.N., 1ST PETITIONER, AYODYA PARAMBU, NOW RESIDING AT HOUSE NO.22/1617 JUBILY LANE, EDAKOCHI, KOCHI-10. (DATE OF BIRTH 01-10-2005)** **3 SUBHADRA, AGED 56, W/O.SREENIVASAN AYODYA PARAMBU, NOW RESIDING AT HOUSE NO.1/1665 CHIRATTAPPALAM, KOCHI-1.** - **4 SREENIVASAN, AGED 64, S/O.LATE NARAYANAN AYODYA PARAMBU, NOW RESIDING AT HOUSE NO.1/1665 CHIRATTAPPALAM, KOCHI-1.** **BY ADVS.SRI.ABRAHAM K.JOHN** - **SMT.C.G.ARUNDHATHI** ## **RESPONDENT(S)/RESPONDENTS:** **1. DINESAN, AGED 49, S/O.NARAYANAN** - **GOPURATHINGAL VEETTIL, HOUSE NO.8/1637, KOOVAPPADAM** - **A.K.ROAD, MATTANCHERY, KOCHI - 682 002** **2. SHAJAN VARGHESE, AGED 47, S/O.VARGHESE, VYSIAMPARAMBIL HOUSE, NEAR ST.MARYS CHURCH KANDANADU P.O., PIN - 682 305** **3. THE NEW INDIA ASSURANCE COMPANY LTD. KANDANKULATHY TOWERS, M.G.ROAD, ERNAKULAM, PIN-682 011** **4. UNITED INDIA INSURANCE COMPANY LTD. LAYAM ROAD, TRIPOONITHURA, PIN -682 301** **R4 BY ADV. SRI.P.JAYASANKAR** - **R3 BY ADV. SRI.P.G.GANAPPAN** - **R2 BY ADV. SRI.K.ABDUL JAWAD** - **R2 BY ADV. SRI.M.K.PRASANTH KUMAR** - **R2 BY ADV. SRI.R.ANOOP** - **R1 BY SRI.JOHN JOSEPH VETTIKAD** - **R1 BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKK/110418** ## C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================= M.A.C.A. No.1580 of 2013 ========================= Dated this the 18[th] day of December, 2017 ## J U D G M E N T ## C.T. Ravikumar, J. The petitioners, who are the legal heirs of the victim of the accident that led to the filing of OP(MV) No.427/2007, on the files of the Additional Motor Accidents Claims Tribunal, Ernakulam, have preferred this appeal on being aggrieved by and dissatisfied with the quantum of compensation granted as per the award passed thereon. They filed the said claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking a compensation of `7,03,200/- for the death of Anilkumar, as a result of a motor vehicle accident occurred on 30.12.2006. The appellants are respectively the widow, child and the parents of the deceased. The deceased was a pillion rider on motor cycle bearing Reg. No.KL-7/AQ 4825 ridden by the first respondent Sri.Dinesan. At the place of the accident there occurred a collision between the said motor cycle and another motor cycle bearing Reg. No.KL39/2671. Anilkumar succumbed to the injuries while undergoing M.A.C.A. No.1580 of 2013 2 treatment on 04.01.2007. It is in the said circumstances that the said claim petition was filed seeking a compensation of `7,03,200/- As per the impugned award the Tribunal granted an amount of `4,94,736/- with interest at the rate of 7.5% per annum from the date of the petition till the date of realisation. As noticed hereinbefore the appellants seek for the enhancement of the quantum of compensation. 2. We have heard the learned counsel appearing for the appellants and also the learned counsel appearing for the second respondent, the learned counsel for the third respondent as also the learned counsel appearing for the fourth respondent. Obviously, the Tribunal found that the third respondent is liable to indemnify the first respondent, the insured owner of the vehicle bearing Regn. No.KL-7/AQ 4825. The arguments advanced before us would reveal that there is no dispute regarding the accident, the cause of the accident as also the liability of the third respondent to indemnify the insured owner of the aforesaid vehicle. In short, the short question to be decided is whether the appellants are entitled to get enhanced M.A.C.A. No.1580 of 2013 3 compensation. 3. The main contention of the learned counsel appearing for the appellants is that the Tribunal has erroneously estimated the monthly income. In elaboration of the said contention, it is submitted that the Tribunal had failed to make any addition to the income fixed for calculation purpose. Per contra, the learned counsel appearing for the respondents submitted that the Tribunal cannot be found fault with, in not granting or not making any addition to the income fixed. It is also submitted that though the appellants had produced Ext.A13 Salary Certificate, it was not proved before the Tribunal. Ext.A13 would reveal that the deceased Anilkumar was working as a Salesman in Navabharath Cycle and Motor Company. Admittedly, it is a private concern. It is true that going by the same the deceased was earning `2,844/- as monthly income. Indisputably, none competent to prove the contents of Ext.A13 was examined before the Tribunal. The learned counsel appearing for the appellants submitted that when the said document was marked, there is absolutely no reason for the Tribunal to treat it as a salary M.A.C.A. No.1580 of 2013 4 certificate and hold that he was a salaried person and based on such conclusion to make addition to the said income. At first blush the said contention appears to be attractive and acceptable. But there can be no doubt with respect to the position that mere production of a document would not be sufficient to accept it as a proof. This position is made clear by the Hon'ble Apex Court in the decision in Rajkumar v. Ajaykumar [2011(1) KLT 620 (SC)]. The learned counsel appearing for the respondents drew our attention to paragraph 13 of the impugned judgment wherein the Tribunal made an observation that it found no reason to doubt the income of Anilkumar. It is further submitted that the income mentioned in Ext.A13 was then taken as the income for calculating compensation for loss of dependency. After considering the rival submissions, we are of the considered view that whenever a salary certificate, issued by a private firm or concern, is produced the competent officer of the said concern or firm has to be examined in order to treat it as proved. That apart, a perusal of Ext.A13 would not reveal what exactly is the nature of his employment. In other words, it is not discernible M.A.C.A. No.1580 of 2013 5 from Ext.A13 as to whether the petitioner is in regular employment or what exactly is the nature of his employment. In such circumstances, in the light of a constitutional Bench decision of the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)], we cannot find fault with the Tribunal in not making an addition to the income taken for calculation purpose as in the case on hand it cannot be said that the appellant had established his income. True that the income taken for calculation purpose is too meagre, but at the same time that is the income which the appellants claim as the income of the deceased. The adoption of the multiplier with reference to the age of the deceased at the time of the accident and deduction towards personal and living expenses of the deceased, were made taking into account the dictum laid down in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. In such circumstances, we do not find any reason at all to hold that the Tribunal had committed an error in calculating compensation for loss of dependency. 4. Now, what survives for consideration is whether the M.A.C.A. No.1580 of 2013 6 appellants are entitled to get enhanced under any other head. Towards loss of consortium the Tribunal has granted an amount of `15,000/- and towards funeral expenses and loss of estate, the Tribunal has granted `5,000/- and `10,000/- respectively. In the light of the decision in Pranay Sethi's case, supra, the appellants are entitled to get enhanced compensation under the aforesaid heads. Going by the decision in Pranay Sethi's case, towards loss of consortium the amount payable is `40,000/Hence the appellants are entitled to get an additional compensation of `25,000/- Going by the said decision an amount of `15,000/- each can be granted towards loss of estate and funeral expenses. In such circumstances an amount of `5,000/- is granted additionally towards loss of estate and an amount of `10,000/- is granted additionally towards funeral expenses. Towards loss of love and affection the Tribunal has granted an amount of `10,000/- As noticed hereinbefore, the appellants are respectively the widow, the son and parents of the deceased. Since love and affection are ingredients of consortium and the first appellant was already granted compensation for loss M.A.C.A. No.1580 of 2013 7 of consortium, she is not entitled to get compensation for loss of love and affection. The second appellant was aged only one year at the time death of his father. In other words, he lost his parental care at the age of one year. In such circumstances, we are inclined to grant an amount of `30,000/- to the second appellant towards loss of love and affection. The parents of the deceased aged 50 years and 58 years, are also entitled to get compensated for loss of love and affection at the rate of `10,000/- each. Since the Tribunal had already granted an amount of `10,000/- the appellants are entitled to get an amount of `40,000/- additionally towards loss of love and affection. Despite the persuasive arguments of the learned counsel, we do not find any reason to hold that the Tribunal had denied reasonable compensation under any other head. In short, in the light of the discussions made herein above, a total additional compensation of `70,000/- is granted. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation . But in view of the order dated 24.10.2016, passed by this Court while M.A.C.A. No.1580 of 2013 8 condoning the delay of 254 days in filing the appeal the appellants are not entitled to get interest during the said period. The third respondent is directed to deposit the additional compensation along with interest within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/C.T. RAVIKUMAR, JUDGE Sd/MARY JOSEPH, JUDGE // TRUE COPY // P.A. TO JUDGE Skk/211217