Beepathu and others v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 14TH DAY OF SEPTEMBER 2017/23RD BHADRA, 1939** ## **MACA.No. 1451 of 2015 ()** **------------------------AGAINST THE AWARD IN OPMV 646/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM DATED 27-08-2014** ## **APPELLANT(S)/PETITIONERS 1 to 4:** **------------------------** **1. BEEPATHU, W/O.MUHAMMED KUTTY KOLAMBIL HOUSE, MELE PATTAMBI, PALAKKAD DISTRICT.** ## **2. SUNEERA, W/O.ABDUL RAFEEQ** **KOLAMBIL HOUSE, MELE PATTAMBI, PALAKKAD DISTRICT.** ## **3. SHIFINA, D/O.ABDUL RAFEEQ** **AGED 13 YEARS (MINOR), DATE OF BIRTH 29.05.2002, KOLAMBIL HOUSE, MELE PATTAMBI, PALAKKAD DISTRICT, REPRESENTED BY HER GRAND MOTHER, 1ST APPELLANT, BEEPATHU.** ## **4. SHAMNA SHERIN** **AGED 9 YEARS (MINOR), DATE OF BIRTH 05.11.2006, KOLAMBIL HOUSE, MELE PATTAMBI, PALAKKAD DISTRICT, REPRESENTED BY HER GRAND MOTHER, 1ST APPELLANT, BEEPATHU.** **BY ADVS.SRI.K.B.ARUNKUMAR SRI.RANJIT BABU** ## **RESPONDENT(S)/RESPONDENT NO.3:** **------------------------------** **UNITED INDIA INSURANCE CO. LTD BRANCH KOLANCHARY, PIN - 673 301** **BY ADV. SRI.P.K.MANOJKUMAR,SC R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **C.K. ABDUL REHIM & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1451 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of September, 2017** ## **J U D G M E N T** ## **Abdul Rehim, J.** Claimants before the Motor Accidents Claims Tribunal, Ottapalam in OP(MV) 646/2010 are the appellants herein, seeking enhancement of the amount of compensation awarded. The claim was with respect to the death of a person named Abdul Rafeeq, who died in a motor vehicle accident which occurred on 10.9.2009. The accident occurred when a lorry hit against the car which was driven by the person who died in the accident. The appellants/claimants are the mother, wife and two minor children of the deceased. The tribunal awarded a total compensation of Rs.13,10,000/-. According to the appellants the amount of compensation awarded under various heads are too inadequate and disproportionate. 2. Heard the learned counsel for the appellants and M.A.C.A. No.1451 of 2015 2 the learned Standing Counsel appearing for the respondent. 3. It is mainly contended that the monthly income of Rs.5,000/- adopted by the tribunal for the purpose of computing the loss of dependency, is inadequate and unrealistic. According to learned counsel for the appellants, sufficient evidence was adduced before the tribunal to prove that the deceased was residing abroad and was earning considerable income. On a perusal of the impugned award, we noticed that Ext.A15 is the copy of the passport and Ext.A21 is the copy of the employment agreement of the deceased. The tribunal found that Ext.A21 is an agreement executed as early as on 8.9.2004 and the contents thereof would indicate that the deceased was under a probation period of three months, during the year 2004. The tribunal noticed that Ext.A21 copy of the agreement was not attested by the Embassy. The tribunal further noticed that the claim of the appellants was that the deceased was running an electrical shop in UAE, which is M.A.C.A. No.1451 of 2015 3 contrary to the fact evidenced from Ext.A21. However, the tribunal noticed that Ext.A15 passport contains endorsement with respect to visa held by the deceased. Taking note of the above said evidence, the tribunal had arrived at a finding that there is no clear proof regarding the income of the deceased and that there is nothing to show that he was on permanent employment in UAE. Relying on a decision in **Valsamma v. Binu Jose** [ **2014 (1) KLT 10]** the tribunal observed that it is not safe to rely on the income with respect to a person who is not permanently employed. Therefore the tribunal adopted a notional income of Rs.5,000/- per month with an addition of 50% towards future prospects for the purpose of computing the compensation under the head of loss of dependency. 4. According to learned counsel for the appellants, the tribunal had failed to consider the documents produced in this regard in its proper perspective. She had pointed out that the visa stamped on the passport would indicate that the deceased was employed in UAE and was on leave at the M.A.C.A. No.1451 of 2015 4 time of the accident. It is pertinent to note that the claim of the appellants was that the deceased was running an electrical shop at Fugaira, UAE. But the evidence adduced would reveal otherwise. We had occasion to peruse the copy of Ext.A15 passport held by the deceased. The endorsement therein would indicate that the deceased was travelling almost on every year to India. One of the exit endorsement would indicate that he had left UAE on 5.9.2009. Which means that he died in the accident within 5 days of his return from gulf country. The 'resident permit' stamped on the passport would indicate that he was employed in UAE and the permit was valid up to 15.9.2010. But there is a stamp affixed on the said endorsement to the effect that the 'resident permit' was cancelled on 5.10.2009, probably after his death. However the endorsements contained in the passport would indicate that the deceased was employed in UAE immediately before the fateful accident in which he died. Ext.A21 employment contract would indicate that he was therein UAE from the year 2004 M.A.C.A. No.1451 of 2015 5 onwards. Considering the totality of circumstances as mentioned above, even though there is no clear proof adduced regarding income of the deceased, it has to be presumed that the deceased might have been earning considerable income from his occupation in UAE. Therefore we are of the opinion that the notional income of Rs.5,000/adopted by the tribunal is really inadequate and unreasonable. On a reasonable estimation we are prepared to enhance the same to Rs.7,000/- per month. Adopting the principle of enhancement considering future prospects, we are inclined to add 50% of the said amount. Therefore the estimation of compensation under the head of loss of dependency need to be re-fixed at Rs.15,12,000/- (10500 x 12 x 3/4 x 16). This will entitle the appellants for an enhancement of Rs.4,32,000/- on that count. 5. Learned counsel for the appellants contended that the tribunal had not awarded any amount of compensation for pain and suffering and towards damage to clothing and articles as well as towards loss of estate, we are of the 6 M.A.C.A. No.1451 of 2015 considered opinion that an amount of Rs.10,000/- can be granted towards loss of estate and another amount of Rs.10,000/- can be granted towards pain and suffering. We are inclined to award a sum of Rs.1,000/- towards damage to clothing and articles. Thus the appellants will be entitled for a total enhancement of Rs.4,53,000/-. In the result, the appeal is allowed in part enhancing the total compensation awarded by the tribunal by a further amount of Rs.4,53,000/- (Rupees four lakhs fifty three thousand only) which amount will carry interest at the same rate as awarded by the Tribunal from the date of filing of the claim petition till realisation, except for the period of 176 days for which the delay in filing the appeal is condoned by this court through order dated 7.7.2017. The enhanced amount also shall be apportioned among the appellants in the same ratio as ordered by the tribunal. The tribunal shall realise balance court fee, if any due, from the amount of enhancement granted. The respondent insurance company shall make deposit of the amount within a period M.A.C.A. No.1451 of 2015 7 of two months from the date of receipt of a copy of this judgment. It is made clear that the appellants will be entitled to approach the tribunal seeking withdrawal of the amount on such deposit, and the tribunal shall pass appropriate orders in that respect. Sd/- **C.K. ABDUL REHIM, JUDGE** Sd/- **K.P. JYOTHINDRANATH, JUDGE** //True copy// P.A. TO JUDGE shg/