Chandralekha and others v. Shebin Jacob Varghese and others

M.A.C.A.No.259/2018 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943_ ## _MACA NO. 259 OF 2018_ _AGAINST THE ORDER/JUDGMENT IN OPMV 1181/2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, PATHANAMTHITTA / III ADDITIONAL MACT_ ## _APPELLANT/PETITIONERS:_ - _1 CHANDRALEKHA, AGED 35 YEARS, W/O.LATE SUBRAHMANIAM T.C, SREEVALSAM, THUKALASSERY, THIRUVALLA P.O._ - _2 ABINAV S., S/O.LATE SUBRAMANIAM T.C, SREEVALSAM, THUKALASSERY, THIRUVALLA P.O(MINOR REPRESENTED BY HIS MOTHER, CHANDRALEKHA, APPELLANT NO. 1 ABOVE.)_ - _3 PUSHKALA @ PUSHPAKALA, W/O.LATE T.A CHANDRAN, PADINJAREMADOM, KAVUVATTOM, CHUPULLASSERY P.O, KAVUVATTOM, PALAKKAD NOW RESIDING AT SREEVALSAM,THUKALASSERY, THIRUVALLA P.O_ _BY ADV SRI.S.SUBHASH CHAND_ ## _RESPONDENT/RESPONDENTS:_ - _1 SHEBIN JACOB VARGHESE, S/O.P.C.VARGHESE, PALAMPARAMPIL HOUSE, THOTTIPADI BHAGOM, ANICADU P.O, MALLAPPALLY 689 001._ M.A.C.A.No.259/2018 2 - _2 P.T.THOMAS,_ _PUTHUKALLEL HOUSE, CHENGAROOR P.O, MALLAPPALLY 689 001._ - _3 THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, THIRUVALLA 689 101. REPRESENTED BY DIVISIONAL MANAGER._ ## _BY ADV SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.259/2018 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.1181 of 2011 on the file of the Motor Accidents Claims Tribunal-III, Pathanamthitta. The aforesaid claim petition was filed by the appellants seeking compensation for the death of one Subrahmaniam, who is the husband of the 1[st] appellant, father of the 2[nd] appellant and the son of the 3[rd] appellant. His death was on 10.06.2011 due to the injuries sustained in a motor accident, when the motor cycle ridden by the deceased collided with a bus driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. According to the appellants, the deceased was aged 35 years at the time of accident and he was working as a medical representative/sales executive with a monthly income of Rs.81,250/-. As compensation, they claimed an amount of Rs.85,00,000/-. 2. The 3[rd] respondent insurance company alone contested the matter by filing a written statement. They disputed the M.A.C.A.No.259/2018 4 negligence and quantum of compensation, but admitted the coverage of policy in respect of the said vehicle. 3. In support of the claim of the appellants, they have produced Exhibits A1 to A25. No evidence was adduced from the side of the respondents. After the trial, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent and being the insurer of the vehicle, the 3[rd] respondent was found liable to pay the compensation. The quantum of compensation was fixed as Rs.29,95,000/- and the said amount was directed to be deposited with interest at the rate of 9% per annum. Being dissatisfied with the quantum of compensation, this appeal is filed. 4. Heard Sri.S.Subhash Chand, learned counsel for the petitioners and Sri.A.R.George, learned counsel for the insurance company. 5. The main contention put forward by the learned counsel for the appellant is regarding the monthly income taken by the Tribunal. Even though an amount of Rs.81,250/- was claimed, the Tribunal has taken only an amount of Rs.12,000/-, which according to the learned counsel for the appellant is highly inadequate. He M.A.C.A.No.259/2018 5 relies on the various documents including Exts.A14 to A25, Income Tax Returns of the deceased for the previous years of the accident. On examining the aforesaid documents, it is evident that the deceased was an Income Tax Payee at least for the past more than 8 years. He was regularly paying Income Tax. It indicates that, he was getting a regular income, though there was some fluctuations therein. On a careful analysis of the statements of the income as revealed from the aforesaid documents, it can be seen that there is a steady growth in the income by passage of time. Exhibit.A22 is the Income Tax return for the year 2010-2011, which is probably the last return submitted by him. In the said document, the total annual income declared is Rs.4,51,745/-. **In Malarvizhi and others v. United India Insurance Company Ltd and another (2020 (1) KLT 511),** it was held by the Honourable Supreme Court that, the income tax return being a statutory document, reliance can be placed upon the same for determining the income of the deceased in a claim of motor accident. Therefore, considering the nature of income as mentioned in the documents including the income tax returns and the periodical increase in the amounts mentioned M.A.C.A.No.259/2018 6 therein as monthly income, I am of the view that the income mentioned in Ext.A22 can be accepted as such for the purpose of computing the compensation. The amount of Rs.12,000/- taken by the Tribunal is highly inadequate and does not provide justice to the overwhelming evidence adduced by the appellants. In such circumstances, annual income of the deceased for the purpose of computing the compensation for loss of dependency can be taken as Rs.4,51,745/-. As the deceased was an Income Tax payee, an amount equal to 10% thereof can be deducted from the said amount, (the total income being less than Rs 5,00,000). While doing so, the monthly income of the deceased comes to Rs.33,881/-. Going by the principles laid down by the Honourable Supreme Court in ## **National Insurance Company Ltd. v. Pranay Sethi [(2017)** **16 SCC 680],** the compensation has to be fixed by making an addition of 40% thereof towards future prospects and not 50% as made by the Tribunal in this case. When making the said addition, the said amount comes to Rs.47,433/-. The other criteria adopted by the Tribunal for assessing the compensation for loss of dependency are in tune with the settled legal principles and hence M.A.C.A.No.259/2018 7 those can be accepted. Thus while reworking the compensation under the head of loss of dependency, the total amount comes to Rs.60,71,424/-. The Tribunal has already awarded an amount of Rs.23,04,000/-. Thus balance amount receivable by the appellants comes to Rs.37,67,424/-(Rupees thirty seven lakhs sixty seven thousand four hundred and twenty four only). 6. At this juncture, the learned counsel for the insurance company pointed out that amounts awarded under the heads of loss of consortium, pain and suffering and love and affection, funeral expenses, loss of estate etc. are not in tune with the principles laid down by the Honourable Supreme Court in **Pranay Sethi** (supra). The learned counsel for the appellant objects the same, by highlighting the fact that, no appeal has been preferred in respect of the same by the insurance company. I am of the view that, a uniform method was contemplated by the Honourable Supreme Court in the matter of computation of compensation, and the same has to be strictly followed in this case also, even though no separate appeal was filed by the insurance company. This is particularly because, the purpose of the said method of computation is to ensure M.A.C.A.No.259/2018 8 just compensation to the victims in a uniform manner and such award shall not result in a bonanza to the claimants. 7. In such circumstances, I am of the view that compensation granted under the heads mentioned above require reconsideration. It is seen that an amount of Rs.30,000/- has been granted under the head of funeral expenses. As per the principles laid down in **Pranay Sethi** (supra) the same can only be Rs.15,000/-. Accordingly, it is re-fixed as Rs.15,000/-. With regard to the loss of consortium, an amount of Rs.2,00,000/- is seen awarded by the Tribunal. As per the principles laid down in **United** **India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [2020 (3) KHC 760],** the wife of the deceased is entitled for spousal consortium, the children of the deceased is entitled for parental consortium and the parents of the deceased are entitled for filial consortium. The quantum of compensation prescribed in the said head is Rs.40,000/- each. In such circumstances, entitlement of the appellants shall be Rs.40,000/each, which comes to Rs.1,20,000/- as against the amount of Rs.2,00,000/- awarded by the Tribunal. The said amount is revised M.A.C.A.No.259/2018 9 accordingly. Another head which requires reconsideration is the amount of Rs.3,00,000/- granted under the head of loss of love and affection. In **Satwinder Kaur** (supra), it has been specifically held by the Honourable Supreme Court that, when compensation for loss of consortium is awarded, no separate compensation can be awarded for loss of love and affection. This is in view of the fact that the compensation for loss of consortium takes in the head of loss of love and affection also. In such circumstances, I do not find any reason to grant the amount of Rs.3,00,000/- under the head of loss of love and affection. It is seen that, an amount of Rs.50,000/is granted under the head of pain and suffering. It is seen that the deceased died on the very same day of the accident. In such circumstances, I do not find any reason to grant Rs.50,000/- as compensation, but a reasonable amount of Rs.15,000/- can be granted under this head. An amount of Rs.1,00,000/- is seen granted towards loss of estate and the actual amount which can be granted is only Rs.15,000/-. Accordingly, I re-fix the same. Accordingly, the amount of compensation granted by the Tribunal is revised as Rs.32,52,424/- (Rupees thirty two lakhs fifty M.A.C.A.No.259/2018 10 two thousand four hundred and twenty four only) [3767424-1500080000-300000-35000-85000]. The said amount shall be deposited by the Insurance company along with interest and proportionate cost as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/29.11.21