Beena Shaji and others v. National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 3RD DAY OF AUGUST 2016/12TH SRAVANA, 1938** **MACA.NO. 2858 OF 2015 ()** **------------------------AWARD IN OPMV 2352/2001 OF M.A.C.T.,KOZHIKODE DATED 24-11-2007** ## **APPELLANT(S)/PETITIONERS:** ## **------------------------** **1. BEENA SHAJI, AGED 40 YEARS,** - **W/O.LATE SHAJI, RESIDING AT PUNNAKKAL HOUSE, CHEVAYOOR P.O., KURAPURATHUAZHAM PARAMBA, KOZHIKODE.** **2. PEMATTO PRINCELY, AGED 19 YEARS,** - **S/O.LATE SHAJI, RESIDING AT PUNNAKKAL HOUSE, CHEVAYOOR P.O., KURAPURATHAZHAM PARAMBA, KOZHIKODE.** **3. BEBATTO PRINCELY (MINOR), AGED 16 YEARS,** - **S/O.LATE SHAJI, RESIDING AT PUNNAKKAL HOUSE, CHEVAYOOR P.O, KURAPURATHAZHAM PARAMBA, KOZHIKODE.** **4. THANKAMMA @ SOOSAMMA, W/O LATE PAILI, RESIDING AT PUNNAKKAL HOUSE, CHEVATYOOR P.O., KURAPURATHAZHAM PARAMBA, KOZHIKODE.** **(THE 3RD APPELLANT IS A MINOR AND HENCE BEING REPRESENTED BEFORE THIS HON'BLE COURT BY HER MOTHER, THE 1ST APPELLANT HEREIN).** **BY ADV. SMT.K.V.RASHMI** **RESPONDENT(S)/2ND RESPONDENT:** **-----------------------------** **THE NATIONAL INSURANCE CO. LTD.** **DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673001, REPRESENTED BY ITS MANAGER.** **BY SRI.P.K.MANOJ KUMAR, SC SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** ## **P.N. RAVINDRAN &** ## **A. MUHAMED MUSTAQUE, JJ.** ------------------------------------------------ M.A.C.A. No. 2858 of 2015 -----------------------------------------------Dated this the 3[rd] day of August, 2016 ## **J U D G M E N T** ## P.N. Ravindran, J. The appellants are the claimants in O.P.(M.V.) No.2352 of 2001 on the file of the Motor Accident Claims Tribunal, Kozhikode, a petition filed under Section 166 of the Motor Vehicles Act, 1998, claiming the sum of 15,00,000/- as compensation for the death of₹ Shaji, husband of the first claimant, father of claimants 2 & 3 and son of the fourth claimant, in a motor accident that took place on 30.04.2001. 2. The claimants had in the claim petition averred that while the victim of the accident was travelling in his motor car from Eangapuzha to Kozhikode, a jeep owned and driven by the first respondent collided with the said motor car and in that accident, the victim sustained serious injuries resulting in his death on the same day. They contended that the accident took place solely on account of the negligence of the first respondent. Though notice was served on the first respondent, the owner-cum-driver of the jeep, and he had also entered appearance through counsel, he did not file a M.A.C.A. No. 2858 of 2015 ..2.. written statement. The second respondent insurer, who is the sole respondent in this appeal, entered appearance and filed a written statement admitting the fact that the jeep involved in the accident was covered by a valid insurance policy. The insurer however contended that the victim of the accident was negligent and was responsible for the accident. The insurer also contended that the amount claimed as compensation is exorbitant and excessive. It also disputed the age, avocation and income of the victim. 3. Before the tribunal, the first claimant, the wife of the victim, was examined as PW1 and Exts.A1 to A3 were marked. Though she had also caused production of a salary certificate, stated to be one issued by her husband's employer, on the ground that the employer/representative of the employer has not been examined to prove the said document, it was not received into evidence. On the side of the respondents, no evidence, oral or documentary, was adduced. After considering the rival contentions and the evidence on record, the tribunal awarded the sum of ₹3,38,000/- as compensation under various heads as shown below; Dependency ₹3,20,000/Consortium ₹10,000/Pain and suffering ₹5,000/Funeral Expenses ₹2,000/Transportation ₹1,000/-------------₹3,38,000/======== M.A.C.A. No. 2858 of 2015 ..3.. In view of the fact that the second respondent insurer had admitted the existence of a valid policy of insurance and had not pleaded or proved breach of policy conditions, the second respondent insurer was directed to satisfy the award with interest @ 7.5% per annum from the date of the petition (28.08.2001) till realization. The claimants have, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. 4. We heard Smt.K.V.Rashmi, learned counsel appearing for the appellants and Sri.P.K.Manoj Kumar, learned counsel appearing for the sole respondent. We have gone through the pleadings and the materials on record as also the salary certificate issued by the employer of the victim, which was not received into evidence by the tribunal. From the pleadings and materials on record, two things emerge; namely, that the victim and his family members were settled at Mumbai and that he was employed at M/s Miki Exports International, Mumbai. The proof affidavit is in Marathi. A translated copy thereof is also on record. The motor car, which the victim was driving, is registered in the State of Maharashtra, its registration number being MH-93-PA-1811. The claimants had even in the claim petition stated that the victim was employed at M/s Miki Exports International, M-43, MIDC Taloja Navi, Mumbai, and that he was earning a monthly income of 20,000/-. The claimants had, M.A.C.A. No. 2858 of 2015 ..4.. during the trial, produced a certificate dated nil purporting to be one issued by a partner of M/s Miki Exports International that the victim of the accident was working with them as 'Refrigeration Plant Engineer' from February 1996 to April 2001. Besides setting out the details of the salary paid to him, his residential address at Mumbai is also given thereon. The said certificate reads as follows; “THIS IS TO CERTIFIED THAT **LATE. MR. SHAJI P.P** WAS WORKING WITH US AS A **“REFRIGERATION PLANT ENGINEER”** FROM FEBRUARY'1996 TO APRIL'2001. HIS RESIDENTIAL ADDRESS IS AS GIVEN BELOW: ## **LATE. MR. SHAJI P.P** SOURABH CO-OP.HSG SOCIETY, ROOM. NO.06, B-WING, SECTOR - 1, KALAMBOLI, DIST. RAIGAD, PIN CODE : 410218. SALARY DETAILS: 1]. BASIC SALARY RS. 7,700.00 2]. HOUSE RENT RS. 4,000.00 3]. TRAVELLING ALLOW. RS. 3,000.00 4]. GRAND TOTAL: **RS. 14,700.00** ” 5. The tribunal declined to receive the said document into evidence on the ground that the employer/representative of the employer has not been examined. The tribunal thereafter proceeded to estimate the monthly income of the victim as 2,500/- and₹ awarded the sum of 3,20,000/- as compensation under the head,₹ loss of dependency after deducting 1/3[rd] of the monthly income towards personal and living expenses of the victim. The victim was aged only 31 years. The correct multiplier to be applied is 16. Since his wife, two children and mother were dependants on him, M.A.C.A. No. 2858 of 2015 ..5.. ## applying the principles laid down by the Apex Court in **Sarla Verma** **v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], only 1/4[th] of the monthly income can be deducted towards personal and living expenses. The tribunal was therefore not justified in deducting 1/3[rd] of the monthly income towards personal and living expenses of the victim. 6. As stated earlier, there is intrinsic evidence to show that the victim was residing with his family at Mumbai. As the victim was residing at Mumbai and he was maintaining a family consisting of his wife, two minor children and also his mother even in the year 2001, he would have certainly earned something more than ₹2,500/- for their subsistence. The salary certificate issued by the employer discloses that he was being paid a basic salary of 7,700/-₹ besides ₹4,000/towards house rent and ₹3,000/towards travelling expenses, aggregating to 14,700/-. ₹ In our considered opinion, as the victim was employed at Mumbai, this court can safely come to the conclusion that he would have earned a monthly income of 7,500/- even in the year 2001. Without earning that₹ income, it would not have been possible for him to reside at Mumbai with his family members. We are therefore of the considered opinion that the claimants are entitled to be awarded compensation under the head, loss of dependency, taking the monthly income of M.A.C.A. No. 2858 of 2015 ..6.. the victim as 7,500/-. ₹ 7. It is now well-settled that even in the case of persons in the unorganized sector, future prospects can be taken into account for the purpose of determining the compensation payable under the head, loss of dependency. As the victim in the instant case was aged below 40 years, 50% of the monthly income can be taken into account for that purpose. As the victim was aged only 31 years, the multiplier to be applied is 16. As the victim was maintaining a family, consisting of his wife, two minor children and his mother, only 1/4[th] of his monthly income is liable to be deducted towards personal and living expenses. Computed applying the aforesaid principles, the compensation payable to the claimants towards loss of dependency will be 16,20,000/- [(₹ ₹7500 x 150% = 11250) x₹ (12 x 16 x ¾)]. The tribunal has in the instant case awarded only ₹3,20,000/- towards loss of dependency. We accordingly award to the appellants an additional compensation of 13,00,000/- under₹ the head, loss of dependency. 8. The Apex Court has, in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 SC], held that in the case of death of spouse, the surviving spouse should invariably be awarded the sum of ₹1,00,000/- as compensation towards loss of consortium. The first claimant in the instant case was aged 26 years. The insurer has no M.A.C.A. No. 2858 of 2015 **==> picture [20 x 9] intentionally omitted <==** case that the wife of the victim has remarried. Such being the situation, we are of the opinion that the appellants are entitled to be awarded the sum of 1,00,000/- as compensation under the head,₹ loss of consortium. The tribunal has in the instant case awarded only 10,000/- as compensation under the head, loss of consortium.₹ We accordingly award to the appellants an additional sum of ₹90,000/- as compensation under the head, loss of consortium. 9. The tribunal has awarded to the appellants only the sum of 5,000/- as compensation towards pain and suffering and the₹ sum of ₹2,000/- as compensation towards funeral expenses. Taking the cue from the decision of the Apex Court in **Amrit Bhanu** **Shali & Others** v. **National Insurance Company Ltd. & Others** [2012 (11) SCC 738], we are of the opinion that on a modest estimate, the sum of 10,000/- ought to have been awarded₹ towards funeral expenses and expenses for religious rites. We accordingly award a further sum of 8,000/- as compensation₹ towards funeral expenses. 10. The Apex Court and this court have been awarding ₹10,000/- as compensation towards pain and suffering undergone by the victim even in cases of instantaneous death. The tribunal has, as stated earlier, awarded only 5,000/- under that head. We₹ accordingly award a further sum of 5,000/- as compensation₹ M.A.C.A. No. 2858 of 2015 ..8.. towards pain and suffering undergone by the victim. 11. The victim had, as stated earlier, left behind his two minor children as also his mother, who was aged only 58 years. No compensation was however awarded by the tribunal under the head, loss of love and affection. On a modest estimate, having regard to the age of the children and the mother, we are of the opinion that the appellants are entitled to be awarded a consolidated sum of 1,00,000/- as compensation under the head, love and affection. We accordingly award to the appellants the sum of 1,00,000/- as compensation under the head, loss of love and₹ affection. We accordingly allow the appeal in part and award to the appellants/claimants a further sum of 15,03,000/- (Rupees fifteen₹ lakhs and three thousand only) as compensation over and above the compensation awarded by the tribunal. The respondent insurer shall deposit the said amount together with interest @ 9% per annum from the date of petition till realization within three months from today. Needless to say, in view of the order passed by us today, condoning the delay of 2577 days in filing this appeal, the appellants/claimants will not be entitled to the interest during the said period, on the enhanced compensation awarded by this court. Upon such deposit being made, the sum of 1,00,000/- shall be₹ M.A.C.A. No. 2858 of 2015 ..9.. disbursed to the fourth claimant (mother of the victim), the sum of ₹3,00,000/- shall be disbursed to the first claimant (wife of the victim) and the sum of 2,00,000/- shall be disbursed to the second₹ claimant, who now has attained majority. The balance amount shall be kept in fixed deposit in the joint names of claimants 1 to 3 till the third claimant attains the age of majority. It will be open to the first claimant to withdraw the interest accruing on the said deposit every quarter. Upon the third claimant attaining majority, the entire amount lying in deposit shall be apportioned equally among claimants 1 to 3. While computing the amount to be thus apportioned, the sum of 2,00,000/- disbursed to the second₹ claimant pursuant to this judgment shall be taken into account. The parties shall bear their respective costs in this court. Sd/- **P.N. RAVINDRAN JUDGE** Sd/- **A. MUHAMED MUSTAQUE JUDGE** bka/- //True copy// PA to Judge