E. Kadeeja and others v. Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 MACA NO.151 OF 2012`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 100/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI`** ## **`APPELLANTS/PETITIONERS 1 AND 3 TO 11:`** - `1 E.KADEEJA W/O.PANALI BASHEER(LATE),KODIVALAPPU HOUSE,MUNDAPPALAM,KONDOTTY.P.O,MALAPPURAM DISTRICT.` - `2 P.BASHEERA THASNIM MINOR, AGED 17 YEARS,D/O.PANALI BASHEER(LATE),KODIVALAPPU HOUSE,MUNDAPPALAM,KONDOTTY.P.O,MALAPPURAM DISTRICT,REPRESENTED BY HER GUARDIAN-MOTHER IST APPELLANT.` - `3 P.BASHEELA MINOR,AGED 12 YEARS,D/O.PANALI BASHEER(LATE),KODIVALAPPU HOUSE,MUNDAPPALAM, KONDOTTY.P.O, MALAPPURAM DISTRICT,REPRESENTED BY HER GUARDIAN-MOTHER IST APPELLANT.` - `4 VASHEEDA, MINOR, AGED 9 YEARS, D/O. PANALI BASHEER (LATE), KODIVALAPPU HOUSE, MUNDAPPALAM, KONDOTTY P.O, MALAPPURAM DISTRICT, REPRESENTED BY HER GUARDIAN-MOTHER 1ST APPELLANT.` - `BASEEJUL RAHMAN` - `5 MINOR,AGED 6 YEARS,D/O.PANALI BASHEER(LATE),KODIVALAPPU HOUSE,MUNDAPPALAM,KONDOTTY.P.O,MALAPPURAM DISTRICT,REPRESENTED BY HER GUARDIAN-MOTHER IST APPELLANT.` - `6 P.RAMLA D/O.PANALI ABDURAHIMAN HAJI(LATE),KUDUKKAN HOUSE,VALIYAPARAMBA.P.O,KONDOTTY(VIA), MALAPPURAM DISTRICT.` MACA Nos.151 & 1002 of 2012 2 ``` 7PANALISARA D/O.P.ABDURAHIMANHAJI(LATE),KANANCHERI HOUSE,OMANNOOR.P;.O,KONDOTTY(VIA),MALAPPURAM DISTRICT. ``` ``` 8P.RAHMATH D/O.P.ABDURAHIMANHAJI(LATE),NELLITHADATHIL HOUSE,OLAVATTOOR.P.O,KONDOTTY(VIA),MALAPPURAM DISTRICT. ``` ``` 9P.MUSTHAFA S/O.P.ABDURAHIMANHAJI(LATE),KODIVALAPPU HOUSE,MUNDAPPALAM,KONDOTTY.P.O,ERANDAD, MALAPPURAMDISTRICT. ``` ``` 10P.HABEEB S/O.P.ABDURAHIMANHAJI(LATE),KODIVALAPPU HOUSE,MUNDAPPALAM,KONDOTTY.P.O,ERANDAD, MALAPPURAMDISTRICT. ``` ``` BYADVSRI.K.M.SATHYANATHAMENON ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1USMANMANNILKADAVAN S/O.MUHAMMED.M.K,KUNDULIYANKAVILHOUSE,AMAYOOR POST,ERNADTALUK,MALAPPURAMDISTRICT,PIN-676123. ``` ``` 2K.MOHAMMEDMANSOOR S/O.MOHAMMEDALIHAJI,H.NO.7/33(12/58),KODAKKAN HOUSE,CHETTIYANGADI,KARUVAMBRAMPOST,ERNAD TALUK,MALAPPURAMDISTRICT,PIN-676123. ``` ``` 3ORIENTALINSURANCECO.LTD JASEELACOMPLEX,NILAMBURROAD,MANJERI,ERNAD TALUK,MALAPPURAMDISTRICT,PIN-676121. ``` ``` BYADVSRI.GEORGECHERIANTHIRUVALLA ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON07.06.2023,ALONGWITHMACA.1002/2012,THECOURTON 16.06.2023DELIVEREDTHEFOLLOWING: ``` MACA Nos.151 & 1002 of 2012 3 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMRS.JUSTICESOPHYTHOMAS FRIDAY,THE16[TH]DAYOFJUNE2023/26THJYAISHTA,1945 MACANO.1002OF2012 ``` ``` AGAINSTTHEORDER/JUDGMENTINOPMV100/2005OFMOTORACCIDENT CLAIMSTRIBUNAL,MANJERI ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THEORIENTALINSURANCECO.LTD. MANJERIREPRESENTEDBYITSASSISTANTMANAGER, REGIONALOFFICE,ERNAKULAMNORTH,KOCHI-18 ``` ``` BYADVSRI.GEORGECHERIAN(THIRUVALLA) ``` ## **`RESPONDENTS/CLAIMANTS:`** - `1 E. KADEEJA` - `W/O.PANALI BASHEER(LATE) KODIVALAPPU HOUSE MUNDAPPALAM KONDOTTY P.O PIN 673638` - `2 PARAMBADAN ITHEEMA` - `W/O.PANALI ABDURAHIMAN HAJI(LATE) KODIVALAPPU HOUSE MUNDAPPALAM KONDOTTY P.O PIN 673638` - `3 P.BASHEERA THASNIM KODIVALAPPU HOUSE MUNDAPPALAM KONDOTTY P.O PIN 673638` - `4 P.BASHEELA (MINOR) REPRESENTED BY MOTHER/GUARDIAN E.KADEEJA W/O.PANALI BASHEER(LATE)KODIVALAPPU HOUSE MUNDAPPALAM KONDOTTY P.O PIN 673638` - `5 VAHEEDA (MINOR) REPRESENTED BY MOTHER/GUARDIAN E.KADEEJA W/O.PANALI BASHEER(LATE)KODIVALAPPU HOUSE` MACA Nos.151 & 1002 of 2012 4 ``` MUNDAPPALAMKONDOTTYP.OPIN673638 ``` - `6 BASEEJUL RAHMAN (MINOR) REPRESENTED BY MOTHER/GUARDIAN E.KADEEJA W/O.PANALI BASHEER(LATE)KODIVALAPPU HOUSE MUNDAPPALAM, KONDOTTY P.O PIN 673638` - `7 P.RAMLA D/O.PANALI ABDURAHIMAN HAJI(LATE) KUDUKKAN HOUSE, VALIYAPARAMBA P.O KONDOTTY VIA PIN 673637` - `8 PANALI SARA D/O.P.ABDURAHIMAN HAJI(LATE),KANANCHERI HOUSE, OMANNOR P.O, KONDOTTY VIA, PIN 673 645.` - `9 P.RAHMATH D/O.P ABDURAHIMAN HAJI(LATE), NELLITHADATHIL HOUSE, OLAVATTOR P.O, KONDOTTY VIA, IN ERNAD -` - `TALUK, MALAPPURAM DISTRICT, PIN 673 638.` - `10 P.MUSTHAFA` - `S/O.P ABDURAHIMAN HAJI(LATE), KODIVALAPPU HOUSE, MUNDAPPALAM, KONDOTTY P.O, PIN 673 638` - `11 P.HABEEB` - `S/O.P.ABDURAHIMAN HAJI(LATE), KODIVALAPPU HOUSE, MUNDAPPALAM, KONDOTTY P.O, PIN 673 638` ``` BYADVS. ``` ``` SMT.KAVERYSTHAMPI ``` ``` SRI.K.M.SATHYANATHAMENON ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON07.06.2023,ALONGWITHMACA.151/2012,THECOURTON 16.06.2023DELIVEREDTHEFOLLOWING: ``` MACA Nos.151 & 1002 of 2012 5 ## **SOPHY THOMAS, J.** ## **--------------------------------------MACA Nos.151 & 1002 of 2012** **---------------------------------------** Dated this the 16[th] day of June, 2023 ## **J U D G M E N T** These appeals arise out of the award in OP(MV) No.100 of 2005 on the file of Motor Accidents Claims Tribunal, Manjeri. MACA No.151 of 2012 is filed by the legal heirs of the deceased Sri.Panali Basheer, on the ground of inadequacy of compensation awarded by the Tribunal, and MACA No.1002 of 2012 is filed by the insurer, alleging that the award amount is excessive in nature. 2. Sri.Panali Basheer was a 43 year old businessman doing business in the Kingdom of Saudi Arabia and in India, earning average monthly income of Rs.15 lakh. On 20.03.2004 at about 7.30 p.m, while he was driving a Ford Icon car through Manjeri-Kozhikode public road, at Pullanoor, high school pady, KL 10C 3999 Tata bus driven by the 1[st] respondent in a rash and negligent manner came from the opposite direction and dashed against his car causing fatal injuries to him. He was taken to District Hospital, Manjeri, but, on the way, he succumbed to the MACA Nos.151 & 1002 of 2012 6 injuries. Appellants/claimants, who are his wife, children, mother and siblings approached the Tribunal claiming compensation of Rs.50 lakh. Learned Tribunal awarded compensation of Rs.40,28,000/-. According to the appellants/claimants, the amount awarded is too meager when compared to the business and income of the deceased. Whereas the case of the insurer is that, the amount awarded is on the higher side. 3. The appellants and respondents in MACA No.151 of 2012 shall be referred as the appellants and respondents hereinafter. 4. According to the appellants, deceased Panali Basheer was earning monthly income of Rs.15 lakh. But, the Tribunal found his annual income as Rs.8 lakh only based on Ext.A17 Bank statement in the joint account of the deceased, with his wife, in State Bank of Travancore, Kondotty. There is no dispute with respect to the fact that the deceased was working in Saudi Arabia during the period of accident. PW4, who claimed to be the sponsor of the deceased, deposed before court that, the deceased was earning 15000 Saudi Riyal per month from his business and apart from that, he was drawing commission of 5500 Riyal. According to him, the MACA Nos.151 & 1002 of 2012 7 deceased was doing decoration works under him. He produced Exts.A31 and A32 documents signed by him, which will show that the salary of deceased Basheer was 20500 Riyal per month. Admittedly, deceased Basheer was not having a permanent job in Saudi Arabia. He was doing decoration work under PW4. Moreover, Exts.A31 and A32 produced by PW4 are not certificates authenticated by the Consular Officer of the Embassy of India in Saudi Arabia, in accordance with the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. No official communication or authenticated certificate issued from the Kingdom of Saudi Arabia is produced, either by the appellants or by PW4 to prove the income the deceased was receiving in Saudi Arabia. Moreover, the income received by an employee in a foreign country cannot be taken as such in the context of Indian Standards. It is a matter of common knowledge that, when the income is more in a foreign country, the expenses also may be high. Moreover, the employment in Gulf country was not certain, especially when he was doing some business under a sponsor. It was likely to be terminated at any time. So, under such MACA Nos.151 & 1002 of 2012 8 circumstances, the income stated by PW4 was not liable to be accepted by the Tribunal. 5. Learned counsel for the respondents placed reliance on the decision _**Valsamma** vs._ _**Binu Jose**_ (2014 (1) KLT 10), to say about the standards to be applied while assessing the income of a person who is not permanently employed in a foreign country. In the case of non-permanent employment with uncertainty regarding continuance, the income will have to be assessed in the context of Indian standards. In paragraph 11 of the said decision, it was held as follows: “... _It may be mentioned here that employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a government service there. If he is a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to the dependents of the victim on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head ‘loss of dependency’. So, in such circumstances, we will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to_ MACA Nos.151 & 1002 of 2012 9 _have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon…”._ 6. In the case on hand, learned Tribunal found that, as per Ext.A17 statement of account in the year 2003, deceased Basheer had sent Rs.8 lakh to his Bank Account in India. So, the Tribunal took that income as his annual income. On an assumption that the deceased might have continued in Saudi Arabia for another four or five years, the multiplier was taken as 5 and the loss of dependency was calculated as Rs.40,00,000/- (8 lakh x 5). That calculation does not seems to be justifiable as the learned Tribunal has not followed, the celebrated decision _**Sarla Verma** vs._ _**Delhi Transport Corporation**_ [2010 (2) KLT 802 (SC)] in assessing the compensation. Learned Tribunal did not take into account the future prospects of a businessman, who was aged only 43. As he was not having any permanent job, going by the decision **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** [(2017) 16 SCC 680]), he was eligible for 25% increase towards future prospects. If so, his annual income could have been taken as Rs.10 lakh (8 lakh + 25%). It was the income he MACA Nos.151 & 1002 of 2012 10 might have been able to earn in Saudi Arabia. 7. The Apex Court, in _**United India Insurance Co. Ltd** vs._ _**Satinder Kaur @ Satwinder Kaur and others**_ [2020 (3) KHC 760 (SC)], held that, reduction of 50% of income towards personal and living expenses considering the cost of living and expenditure for establishment in a foreign country, was justifiable. Following that decision, this Court is inclined to take the annual income of the deceased that he could have earned in India after deducting 50% of his income towards personal and living expenses as Rs.5 lakh (10 lakh-50%). 10% was liable to be deducted towards tax. So, the balance annual income would have been Rs.4,50,000/-. Since he was aged only 43, the multiplier applicable was 14. So, the loss of dependency could have been fixed as Rs.63 lakh (4,50,000x14). Learned Tribunal awarded Rs.40 lakh towards loss of dependency. So, the appellants are entitled to get the balance amount of Rs.23 lakh towards loss of dependency. 8. The Tribunal awarded Rs.10,000/- towards loss of love and affection, Rs.5,000/- towards loss of estate, Rs.3,000/- for MACA Nos.151 & 1002 of 2012 11 funeral expenses and Rs.10,000/- towards loss of consortium for the wife. Going by _Pranay Sethi’s case_ cited supra, the appellants were eligible to get Rs.15,000/- each for loss of estate and funeral expenses. Towards loss of consortium/love and affection, the appellants 1 to 5, the wife and children of the deceased, were eligible to get Rs.40,000/- each amounting to Rs.2 lakh in total. The amount already awarded by the Tribunal is liable to be deducted also. |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by the**<br>**Tribunal**<br>**(2)**|**Amount awarded**<br>**in appeal**<br>**(3)**|**Difference to be**<br>**drawn as**<br>**enhanced**<br>**compensation**<br>**(5)**| |---|---|---|---| |Loss of dependency|Rs.40,00,000/-|Rs.63,00,000/-|Rs.23,00,000/-| |Loss of love and<br>affection/consortium|Rs.20,000/-<br>(10000x2)|Rs.2,00,000/-|Rs.1,80,000/-| |Loss of estate|Rs.5,000/-|Rs.15,000/-|Rs.10,000/-| |Funeral expenses|Rs.3,000/-|Rs.15,000/-|Rs.12,000/-| |**Total**|Rs.40,28,000/-|Rs.65,30,000/-|Rs.25,02,000/-| 9. The 2[nd] claimant in the O.P, who was the mother of the deceased, is now no more, and so, she was not made a party in the appeal. The siblings, who are appellants 6 to 10, are not dependents of the deceased. So, appellants 1 to 5, who are the MACA Nos.151 & 1002 of 2012 12 wife and children of the deceased Panali Basheer, are the persons eligible to receive the compensation. 10. In MACA No.1002 of 2012, the contention of the insurer is that, the loss of dependency awarded by the Tribunal @ Rs.40 lakh, was on the higher side. But, in MACA No.151 of 2012, we have assessed the probable annual income, that would have been received by the deceased in India, after deducting the personal expenses and cost of living upto 50%. The multiplier applied by the Tribunal was not correct, and so in the appeal, the correct multiplier is applied, and it is found that, the appellants 1 to 5 were eligible to get Rs.63 lakh as compensation for loss of dependency, instead of Rs.40 lakh awarded by the Tribunal. So, the case of the insurer that the compensation awarded by the Tribunal was excessive, is liable to be rejected. 11. It is pertinent to note that, the death of Sri.Panali Basheer in the accident occurred on 20.03.2004 and the policy of the offending vehicle are not in dispute. So, the insurer is liable to make the payment of compensation. In MACA No.1002 of 2012, for the purpose of stay, this Court had directed the insurer to MACA Nos.151 & 1002 of 2012 13 deposit half of the amount awarded (inclusive of interest and cost) within a period of six weeks and to release that deposit to the claimants, as per the terms of the award. So, the balance amount under the impugned award, and enhanced compensation awarded in MACA No.151 of 2002 are liable to be deposited by the insurer. We have already found that, appellants 1 to 5 are the only legal heirs of the deceased Panali Basheer entitled to receive compensation, as his dependents, since his mother also is no more. So, the finding of the Tribunal that appellants 7 to 11 are entitled for Rs.2 lakh each with proportionate interest, is liable to be set aside. 12. In the result, the 3[rd] respondent/insurer in MACA No.151 of 2012 shall deposit the balance amount as per the impugned award, along with the enhanced compensation of Rs.25,02,000/in the Bank account of appellants 1 to 5 in equal share with 9% interest per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. If the 5[th] appellant is still a minor, the amount deposited in her account shall not be released until she attains MACA Nos.151 & 1002 of 2012 14 majority. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund In the result, MACA No.1002 of 2012 is dismissed and MACA No.151 of 2012 is allowed to the extent as above. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp