Devaki Kutty D. and others v Harshad T.M and Muhammed Ali and The Oriental Insurance Company Limited

# 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. 3584 OF 2018 AGAINST THE AWARD DATED 20.07.2018 IN OP(MV)NO. 864/2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM ## APPELLANTS/PETITIONERS: 1 DEVAKIKUTTY.D AGED 48 YEARS W/O. LATE SASIKUMAR, RESIDING AT ‘KRISHNA KRIPA’, ORAMPALLATH HOUSE, AKALUR P.O., LAKKIDI-PERUR II, PALAKKAD - 679 302. 2 SACHIN S. KUMAR AGED 24 YEARS S/O. LATE SASIKUMAR, RESIDING AT ‘KRISHNA KRIPA’, ORAMPALLATH HOUSE, AKALUR P.O., LAKKIDI-PERUR II, PALAKKAD - 679 302. 3 SRUTHI S.NAIR AGED 20 YEARS D/O. LATE SASIKUMAR, RESIDING AT ‘KRISHNA KRIPA’, ORAMPALLATH HOUSE, AKALUR P.O., LAKKIDI-PERUR II, PALAKKAD - 679 302. 4 PADMAVATHY, AGED 66 YEARS W/O.NARAYANAN NAIR, RESIDING AT ‘KRISHNA KRIPA’, ORAMPALLATH HOUSE, CHOROTTUR P.O., MANISSERY, VANIYAMKULAM-II, CHEROTTUR, PALAKKAD-679521. BY ADVS. T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## RESPONDENT/S: 1 HARSHAD.T.M S/O. MUHAMMAD ALI, RESIDING AT THIRUVALLATH HOUSE, MACA No. 3584 of 2018 2 CHERUTHURUTHY P.O., THRISSUR - 679 531. 2 MUHAMMED ALI, S/O.UNNIYAMU @ UNNIYANKUTTY, RESIDING AT THIRUVALLATH HOUSE, CHERUTHURUTHY P.O., THRISSUR DISTRICT,PIN679531. 3 THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE 3RD FLOOR, BUILT TECH FOUNDATIONS, CHITTUR ROAD PALAKKAD -678001. R3 BY ADV SRI.A.R.GEORGE, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 3584 of 2018 3 ## JUDGMENT The appellants are the petitioners in OP(MV)No.864 of 2016 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The claim petition was filed by them seeking compensation for the death of one Sasikumar who died due to the injuries sustained to him in a motor accident occurred on 7.4.2016. According to the appellants, the scooter ridden by the deceased was hit by a jeep driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. It was claimed that the deceased was working as Chief Electrician in a private company with a monthly income of Rs.20,000/-. The total amount of compensation claimed was Rs.25 Lakhs. **==> picture [426 x 15] intentionally omitted <==** written statement wherein they denied the negligence on the part of the 1[st] respondent. It was also pointed out that even if he is found to be MACA No. 3584 of 2018 4 liable for the accident, the amount of compensation has to be realized from the 3[rd] respondent Insurance Company, as the vehicle was covered with a valid insurance policy at the relevant time. The 3[rd] respondent filed a written statement disputing the quantum of compensation as also the negligence. However, the coverage of policy in respect of the vehicle was admitted. 3. The evidence in this case consists of oral evidence of PW1 and Exhibits A1 to A8 were marked from the side of the appellants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal fixed a total compensation of Rs.8,58,050/-. Since it was found that the accident occurred due to the negligence of the 1[st] respondent, being the insurer, the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum. This appeal is filed by the appellants being aggrieved by the quantum of compensation. MACA No. 3584 of 2018 5 4. Heard Sri. Nimod A.R., the learned counsel for the appellants and Sri.A.R.George, the learned counsel for the 3[rd] respondent Insurance Company. 5. The main contention is with regard to the monthly income taken by the Tribunal. Even though an amount of Rs.20,000/- was claimed, the Tribunal fixed the monthly income as Rs.6,500/- only. It was pointed out that, in order to establish the monthly income Ext.A8 salary certificate was produced and the same was proved through PW1 who issued the same. The aforesaid certificate indicates that the salary of the deceased was Rs.20,000/-. However, the Tribunal did not accept Ext.A8 salary certificate and also the evidence of PW1 on the reason that, no supporting documents indicating the salary was produced. It was conceded by PW1 that no registration for his employment was made in the labour department, provident fund, gratuity, E.S.I. etc. It was in such circumstances, the Tribunal did not rely on Ext.A8. MACA No. 3584 of 2018 6 6. The learned counsel for the Insurance Company seriously opposes the aforesaid contention and points out that, despite the fact that, the deceased was claimed to be an Electrician, no document showing the qualification and also the registration which he might have obtained if he was an Electrician, was produced. In such circumstances, Ext.A8 and the evidence of PW1 cannot be accepted, contends the counsel. 7. When examining the entire facts and circumstances of the case, it is evident that the monthly income of Rs.6,500/- fixed by the Tribunal is grossly inadequate. However, the monthly income as claimed by the appellants cannot be accepted as such, because of the fact that, despite the claim that he was qualified as an electrician, no documents substantiating his qualification was produced. As pointed out by the learned counsel for the Insurance Company, necessarily, he might be having a license if he was an electrician, which is not seen produced. Therefore, it is evident that MACA No. 3584 of 2018 7 the best evidence available to show the qualification was not produced before the Tribunal. Therefore, the income mentioned in Ext.A8 cannot be accepted as such. However, it is a fact that, the accident occurred in the year 2016. Even though, the monthly income as mentioned by PW1 could be exaggerated, it would indicate that the deceased was having regular employment. In such circumstances, I am of the view that, Rs.14,000/- would be a reasonable monthly income, when taking into account the economic conditions prevailed in the year 2016, and it is fixed as such. 8. Another contention put forward by the learned counsel for the appellants is with regard to the deduction made towards personal expenses of the deceased. It is contended that 1/3rd of the monthly income is seen deducted as personal expenses of the deceased. It is evident that there are four claimants in the claim petition who are wife, children and mother of the deceased. As per the principles laid down in National Insurance MACA No. 3584 of 2018 8 Company Ltd. v. Pranay Sethi [2017(4)KLT 662], if the number of dependents is four, deduction to be made towards personal expenses should be 1/4th and the same can be adopted in this case. It is also contended that as the deceased was aged 48 at the time of incident, 25% of the monthly income must be added for future prospects. While re-working the compensation for the loss of dependency with the revised criteria as mentioned above, the amount under the loss of dependency would come to Rs.20,47,500/-. [(Rs.14,000+3500)x12x13x3/4)]. The Tribunal has awarded an amount of Rs.6,76,000/- under the head of loss of dependency. Thus, after deducting the said amount, the appellants are entitled to an additional amount of Rs.13,71,500/under this head. It is seen that, an amount of Rs.1,00,000/- is seen granted towards loss of love and affection. As per the principles laid down in United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (AIR 2020 SC 3076), the parents of the deceased are entitled for filial MACA No. 3584 of 2018 9 consortium whereas the children are entitled to parental consortium at the rate of 40,000/- each. It is also held that when compensation for loss of consortium is granted, no further amount can be granted under the head of loss of love and affection. While applying the aforesaid principles, the amount awarded under the head of loss of love and affection has to be deducted and the appellants 2,3 and 4 are to be awarded compensation under the head of loss of parental consortium as well as filial consortium respectively at the rate of 40,000/- each. The compensation under these heads are revised accordingly. In the above circumstances, the total amount receivable by the appellants in addition to the compensation awarded by the Tribunal would come to Rs.13,91,500/[Rs.13,71,500-1,00,000+1,20,000] [Rupees Thirteen Lakhs Ninety one thousand and Five hundred only]. The 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest and proportionate costs as ordered by the MACA No. 3584 of 2018 10 Tribunal within a period of three months from the date of receipt of copy of this judgment. The above appeal is disposed of as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk