Bhavitha v. Oriental Insurance Company Ltd and Others (MACA No.2260 of 2019)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 15[TH] DAY OF JULY 2024 / 24TH ASHADHA, 1946 MACA NO. 2260 OF 2019`** ## **`AGAINST AWARD DATED 31.01.2019 IN OP(MV) NO.901 OF 2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANTS/PETITIONERS:`** ## **`1 BHAVITHA`** - **`AGED 36 YEARS`** - **`W/O. LATE RAMESH, VELLAYATH HOUSE, KOLATHUR DESOM, NELLAY VILLAGE AND PO, MUKUNDAPURAM TALUK, THRISSUR DISTRICT`** - **`2 TANUSH.R.,`** ``` MINORAGED5YEARS S/O.LATERAMESH,VELLAYATHHOUSE, KOLATHURDESOM,NELLAYVILLAGEAND PO,MUKUNDAPURAMTALUK,THRISSUR DISTRICT(2NDAPPELLANTREPRESENTED BYNATURALGUARDIANMOTHER1ST APPELLANT) ``` ## **`3 RAJAN,`** ``` AGED76YEARS ``` ``` F/O.LATERAMESH,VELLAYATHHOUSE, KOLATHURDESOM,NELLAYVILLAGEAND PO,MUKUNDAPURAMTALUK,THRISSUR DISTRICT ``` ## **`4 SANTHA,`** ``` AGED69YEARS ``` ``` W/O.RAJAN,VELLAYATHHOUSE,KOLATHUR DESOM,NELLAYVILLAGEANDPO, MUKUNDAPURAMTALUK,THRISSURDISTRICT ``` ``` BYADVA.N.SANTHOSH ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` ORIENTALINSURANCECOMPANYLTD, 2NDFLOORLPUTHENPURAKCLCHAMBERS, VELI,PALLURUTHY,KOCHI-682006 ``` ``` BYADVS. SRI.GEORGECHERIAN(SR.) ``` MACA No.2260 of 2019 2 ``` SRI.ALEXYAUGUSTINE SMT.LATHASUSANCHERIAN SMT.K.S.SANTHI ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON15.07.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` MACA No.2260 of 2019 3 ## **J U D G M E N T** This appeal is at the instance of the claimants in OP(MV) No.901 of 2016 on the file of Motor Accidents Claims Tribunal, Irinjalakuda, impugning the award on the ground of inadequacy of compensation. 2. On 12.06.2016 at 6.15 p.m, while deceased Ramesh was riding a motorcycle, KL-07-CB-3984 car driven by the 2[nd] respondent, in a rash and negligent manner, dashed against his motorcycle and he suffered fatal injuries to which he succumbed at the hospital. He was a 38 year old Deputy Sales Manager working in PSN Automobiles Pvt.Ltd, Ernakulam, earning monthly income of Rs.58,000/-. He was survived by his wife, child and parents. His legal heirs approached the Tribunal claiming compensation of Rs.1,50,00,000/-. But, learned Tribunal awarded only Rs.74,49,548/-, and hence this appeal. 3. The 1[st] respondent was the owner, 2[nd] respondent was the driver and 3[rd] respondent was the insurer of the offending car. The accident as well as the policy of the offending vehicle are not under dispute. 4. In the appeal, the insurer was the sole respondent. Learned counsel for the insurer would submit that, the MACA No.2260 of 2019 4 compensation awarded by the Tribunal is just and reasonable, and hence it needs no modification. 5. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned Award warranting interference by this Court. 6. Heard learned counsel for the appellants and learned counsel for the respondent/insurer. 7. The main grievance put forward by the appellants is that, the monthly income of the deceased fixed by the Tribunal is arbitrarily low. The appellants had produced Ext.A12 salary certificate to show that, the deceased was drawing monthly salary of Rs.58,023/- including incentives and allowances. Ext.A13 is the income tax returns of the deceased for the period 2013-14 to 2015-16. According to the appellants, learned Tribunal, instead of taking the latest income tax returns, took the average of the three consecutive years and assessed his annual income as Rs.4,36,121/- and that calculation is not correct. 8. Learned counsel for the respondent/insurer would contend that, the income of the previous year was lesser than the income of the assessment year 2015-16 and so, the Tribunal is justified in taking the average of the income of three consecutive assessment MACA No.2260 of 2019 5 years, to find his annual income as Rs.4,36,121/-. 9. The accident in this case occurred on 12.06.2016. In Ext.A13, the income tax return for the assessment year 2015-16 shows his annual income as Rs.4,84,581/- and the tax payable was Rs.14,013/-. Considering the fact that the deceased was working as Deputy Sales Manager in PSN Automobiles for about 13 years, and he was aged only 38, this Court is inclined to take his latest income tax return to assess his annual income. After deducting the income tax, his annual income would be Rs.4,70,568/-. So, the monthly income would be Rs.39,214/-. 10. Learned counsel for the respondent/insurer would contend that, since the deceased was not having a permanent income as seen from Ext.A13 IT returns, learned Tribunal ought not have granted 50% addition towards future prospects. But, learned counsel for the appellants would rely on the decision **Triveni Kodkany and others v. Air India Ltd. and others** [2020 (3) KHC 50] to substantiate his argument that, the expression ‘permanent job’ in paragraph 59.3 of the decision **National Insurance Company Ltd. v. Pranay Sethi and Others** [(2017) 16 SCC 680] is not intended to include only those individuals who are in the service of Government or industrial workmen protected MACA No.2260 of 2019 6 by Statute. True that, employment of the deceased cannot be equated with that of a person with fixed salary. But, Ext.A12 salary certificate will show that, he was in the employment of PSN Automobiles Pvt. Ltd. as Deputy Sales Manager for about 13 years, as on the date of accident. So, this Court is inclined to grant future prospects of 50% for the deceased. So, his monthly income could be fixed as Rs.58,821/- (39214+50%). Since he was having four dependants, 1/4[th] was liable to be deducted towards his personal expenses. So, the balance will be Rs.44,116/-. The multiplier applicable is 15, as he was aged only 38. So, loss of dependency could be assessed as Rs.79,40,880/(44116x12x15). After deducting Rs.73,59,548/- awarded by the Tribunal, the appellants are entitled to get Rs.5,81,332/- as enhancement under the head loss of dependency. 11. Towards loss of consortium, learned Tribunal awarded only Rs.40,000/-. Based on _Pranay Sethi’s case_ cited supra, the appellants are entitled to get Rs.40,000/- each, which will come to Rs.1,60,000/in total. After deducting Rs.40,000/already awarded by the Tribunal, they will get the balance Rs.1,20,000/- as enhancement under the head loss of consortium. MACA No.2260 of 2019 7 12. The compensation awarded by the Tribunal under all other heads seems to be reasonable and so, it need not be interfered with. |interfered with.|||| |---|---|---|---| |**Head of claim**<br>**(1)**|**Amount awarded**<br>**by the Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Difference to be**<br>**drawn as**<br>**enhanced**<br>**compensation**<br>**(4)**| |Loss of dependency|Rs.73,59,548/-|Rs.79,40,880/-|Rs.5,81,332/-| |Loss of consortium|Rs.40,000/-|Rs.1,60,000/-|Rs.1,20,000/-| |**Total**|**Rs.73,99,548/-**|**Rs.81,00,880/-**|**Rs.7,01,332/-**| 13. In the result, the appellants are entitled to get Rs.7,01,332/- (Rupees Seven lakh one thousand three hundred and thirty two only) as enhanced compensation. The respondent/insurer is directed to deposit the enhanced compensation of Rs.7,01,332/- (Rupees Seven lakh one thousand three hundred and thirty two only) with interest @ 8% per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Irinjalakuda, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellants 1 to 4 in the ratio 50:40:5:5, after deducting their liabilities, if any, towards Tax, balance court fee and legal benefit fund. Since the 2[nd] appellant is still a minor, his share shall be deposited in a MACA No.2260 of 2019 8 nationalised bank till he attains majority. The appeal is allowed to the extent as above. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp