Ebrahim P.P. v. Tomy Kuruvilla and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 15TH DAY OF MARCH 2017/24TH PHALGUNA, 1938** ## **MACA.No. 864 of 2013 ()** ## **-----------------------OPMV 88/2009 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM ===========** ## **APPELLANTS/PETITIONERS:** **-----------------------------------------** ## **1. EBRAHIM P.P., THUNDIPARAMBIL** ## **NEAR PUTHOORPALLY, CHANGANACHERRY.[DIED]** **2. KHADIJAMMA, THUNDIPARAMBIL, NEAR PUTHOORPALLY CHANGANACHERRY.[RECORDED]** **[THE SECOND APPELLANT IS RECORDED AS ONE OF THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 28/02/2017 IN IA.4155/16 IN M.A.C.A.NO.864/13.]** ## **ADDITIONAL APPELLANTS 3 TO 10 IMPLEADED** - **Addl. 3. MAHAMMED SHAREEF K.E., THUNDIPARAMBIL PERUNNAI EAST POST, CHANGANACHERRY.** - **Addl. 4. JASMIN, KULLATHINMATTIL HOUSE, THRICKODITHANAM POST NEAR SANTHOSH CLUB, MUKKATTUPADI, CHANGANACHERRY.** - **Addl. 5. NOORJAHAN K.E., SELEEM MANZIL, PARROLIKKAL ATHIRAMPUZHA POST, KOTTAYAM.** - **Addl. 6. SHEEBA SHAJI, SHAROOQ MANZIL NEAR ST.THOMAS CHURCH, CHANGANACHERRY-1.** - **Addl. 7. SHYBA NAVAS, PUTHUPARAMBIL HOUSE PERUMPANACHI POST, THENGANA, CHANGANACHERRY..** - **Addl. 8. SHEBEEK T.D., THUNDIPARAMPIL HOUSE NEAR PUTHOORPALLY, CHANGANACHERRY.** - **Addl. 9. SHAJI T.E., THUNDIPARAMPIL PERUNNAI EAST POST,CHANGANACHERRY.** - **Addl. 10. SALIM P.E., THUNDIPARAMPIL NEAR PUTHOORPALLY, CHANGANACHERRY.** **THE LEGAL RESPRESENTATIVES OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 10 AS PER ORDER DATED 28.02.2017 IN I.A.NO.4154/2016 IN M.A.C.A.NO.864/2013.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** **Contd....................2** **-2-** ## **MACA.No. 864 of 2013** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. TOMY KURUVILLA, THYPARAMPIL VENPALA POST, THIRUVALLA -689 645** **2. KURUVILLA T.K., THYPARAMPIL** - **VENPALA POST, THIRUVALLA -689 645** **3. THE NATIONAL INSURANCE CO LTD.** - **KOTTAYAM - 686 001** **R3 BY ADV. SRI.LAL K.JOSEPH R3 BY ADV. SRI.A.A.ZIYAD RAHMAN R3 BY ADV. SRI.V.S.SHIRAZ BAVA R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SD** ## **P.R.RAMACHANDRA MENON & A.M.BABU, JJ.** **................................................. M.A.C.A No.864 2013 (C) ...............................................** Dated this the 15[th] day of March, 2017 ## **JUDGMENT** ## **RAMACHANDRA MENON, J** This appeal has been preferred by the parents of the deceased, who were the claimants before the Tribunal. In the course of the proceedings before this Court, the original 1[st] appellant, who was the father of the deceased, took his last breath; pursuant to which all the legal heirs have been brought in the party array as additional appellants vide order dated 28.02.2017 passed by this Court in I.A.No.4154 of 2016. - 2.With regard to the facts involved, the deceased was standing on the side of the road on 30.10.2008 and while so, at about 9.15 p.m., a Maruti Alto car bearing registration No. KL-27-7320, driven, owned, and insured by the respondents 1 to 3 respectively, came in a rash and negligent manner knocked him down causing fatal injuries. M.A.C.A No.864 2013 © 2 Because of the gravity of the injuries, he succumbed to the same shortly thereafter ie., by about 10.10 p.m. on the same day. This led to the petition filed before the Tribunal claiming compensation under different heads. - 3.The 1[st] and 2[nd] respondents i.e., the driver and owner of the vehicle did not contest the matter and they were set ex parte. Though a written statement was filed by the Insurer, the challenge was mainly with reference to the negligence and quantum. The existence of a valid policy was conceded by the Insurer. - 4.The evidence adduced before the Tribunal consists of Exts. A1 to A22 produced and marked from the part of the claimants. No evidence was adduced, either oral or documentary, from the part of the respondents. Based on the evidence so adduced, the Tribunal arrived at a finding that, the accident was solely due to the negligence on the part of the driver of the car. - 5.Coming to the fixation of compensation, the specific claim M.A.C.A No.864 2013 © 3 projected by the parents/claimants before the Tribunal was that the deceased was working as an Area Sales Manger in a private limited company run under the name and style M/s.H & H Pharmaceuticals Private Ltd., based in Mumbai. It was also pointed out that the deceased was running a garment shop being the proprietor of the said establishment at Changanassery and that the total income generated by virtue of avocation as Area Sales Manager and also from the garment shop was to an extent of 60,000/- per month. The₹ employment and income were sought to be substantiated by producing Exts.A8 and A9 certificates issued by the employer of the deceased. Ext.A10 is a copy of the income tax return for the year 2005 - 2006 and Ext.A11 is the acknowledgment issued by the Income Tax Department as to the return filed for the year 2007 - 2008. The Tribunal recorded the income as 14,400/- certified by the employer₹ and worked out the dependency compensation reckoning only a multiplier of '5' based on the higher age factor of the parents of the deceased. Amounts were awarded under different heads and the total compensation was worked out as 4,86,000/- which was directed to be satisfied with₹ M.A.C.A No.864 2013 © 4 interest @ 7.5% p.a. from the date of petition, till satisfaction; plus cost. This is sought to be enhanced in this appeal. - 6.The learned counsel appearing for the appellants submits that the actual income of the deceased has not been reckoned by the Tribunal for the purpose of computing the benefits, despite producing documentary evidence. During the course of hearing, the learned counsel for the appellant made available photocopies of all the exhibits produced before the Tribunal. The said documents were handed over for perusal to the learned counsel for the Insurer as well. We have also gone through the said documents. - 7.The learned counsel appearing for the Insurance Company points out that the salary certificate issued by the employer was not proved by examining the authority who issued the salary certificate; nor did the claimants choose to mount the box; presumably fearing cross examination. It is also pointed out by the learned counsel for the Insurance Company that the alleged income from the garment shop is M.A.C.A No.864 2013 © 5 not liable to be reckoned for the purpose of compensation; primarily for the reason that the garment shop could have been continued by the legal heirs, and that apart, such an income was generated from the garment shop not because of any personal involvement or attention of the deceased, who even according to the appellants was employed as an Area Sales Manager of M/s.H & H Pharmaceuticals Private Ltd, working in some other state. As a natural consequence, the garment shop could have been conducted only by some others, presumably the claimants, and as such there was absolutely no bar for continuing the garment shop, and income from the garment shop would have continued coming to the hands of the claimants/parents. It is also brought to the notice of this Court that the return submitted on behalf of the assessee is not liable to be accepted for various reasons. Specific reference is made by the learned counsel to Ext.A20 Form 10A under the Kerala Value Added Tax Rules, 2005. It is pointed out by the learned counsel that the details have been furnished in the said Form as on 25.01.2009 for the year 2008 - 2009, showing the total sales turnover for the quarter as 1,09,252/- also ₹ showing such M.A.C.A No.864 2013 © 6 other details as the presumptive tax, total tax, tax paid etc., besides giving a declaration by the assessee himself, showing his name and also subscribing his signature. 8.Admittedly, in the instance case, the accident was on 30.10.2008 and the injured succumbed to the injuries on that day itself. This being the position, there was absolutely no chance for the deceased to have submitted any proceeding as Ext.A20 dated 25.01.2009 with declaration under his signature and that the same bearing the seal of the authorities of the department could have been submitted by somebody else under the name and signature of the deceased assessee. No explanation is forthcoming from the part of the appellants. The learned counsel for the appellants also submits that no instruction have been received in this regard. In the said circumstance, we confine the scope of scrutiny of the Award with reference to the undisputed extent of salary reckoned by the Tribunal as ₹14,400/- by way of Ext.A9 and A10 certificates. - 9.The next question to be considered is whether the M.A.C.A No.864 2013 © 7 calculation effected by the Tribunal is correct or not with regard to the fixation of loss of dependency. By virtue of the law declared by the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802],** in the case of persons of the age group between 30 and 40 considering the future prospects, 50% of the salary drawn has to be added. In the instant case, the date of birth of the deceased is 13.05.1974 and as such, as on the date of accident, he had crossed the age of 34 years. This being the position, 50% of ₹14,400/- has to be added to fix the reckonable monthly income and admittedly since the deceased was a bachelor, 50% has to be deducted towards the probable personal expenses and only the remaining 50% could be reckoned as contribution to the parents. At the same time, it has to be noted that the appropriate multiplier has to be fixed with reference to the age of the deceased and not with reference to the age of the parents/claimants, by virtue of the settled position of law. The Tribunal unfortunately had reckoned only '5' as the multiplier based on the average age of the parents, which is not correct or sustainable. On reworking the compensation payable towards loss of dependency in the M.A.C.A No.864 2013 © 8 said circumstance, it comes to 20,73,600/- (14,400+7200)₹ x12x16x50/100). After deducting a sum of ₹4,32,000/awarded by the Tribunal the balance comes to **₹ 16,41,600/-.** 10.The amounts awarded under different heads as given in paragraph No.16 are re-produced below; |**_Sl._**<br>**_No._**|**_Head of Claim_**|**_Amount_**<br>**_Claimed (in_**<br>**_Rupees)_**|**_Amount_**<br>**_Awarded (in_**<br>**_Rupees)_**|**_Basis vital details in_**<br>**_a nut shell_**| |---|---|---|---|---| |1|Transportation|₹2,000.00|₹2,000.00|In view of the<br>transportation charges| |2|Funeral Expenses|₹20,000.00|₹6,000.00|Nominal amount| |3|Damage to clothings|₹3,000.00|₹1,000.00|.....do.......| |4|Medical expenditure|₹25,000.00|Not allowed|No bill produced| |5|Loss of dependency|₹25,00,000.00|₹4,32,000.00|1,72,800<br>(14,400x12)-<br>86,400x5=4,32,000/-| |6|Pain and sufferings|₹1,50,000.00|₹15,000.00|In view of the pain<br>suffered by the victim<br>before his death| |7|Loss of love and affection|₹2,00,000.00|₹20,000.00|The petitioners have<br>lost the love and<br>affection of the victim| |8|For the nervous shock and<br>mental agony of the<br>petitioners|₹2,00,000.00|Not allowed|Other heads allowed| |9|Loss of estate||₹10,000.00|Nominal amount| ||TOTAL|₹31,00,000.00<br>limited to ₹<br>15,00,000/-|₹4,86,000.00|............................| M.A.C.A No.864 2013 © 9 11.It is to be noted that only a sum of 6,000/- has been₹ awarded by the Tribunal towards funeral expenses. By virtue of law declared by the Hon'ble Supreme Court in **Rajesh vs. Rajbir Singh [2013 (3) KLT 89 (SC)],** it should have been **₹25,000/** -. The appellants are entitled to get the balance of **₹14,000/-** under this head, as the funeral expense claimed was of 20,000/-. Similarly, as per the very₹ same decision, it is made clear by the Apex Court that the compensation payable for loss of love and affection is ₹1,00,000/-. In the instant case, the Tribunal has awarded only 20,000/-. We are of the view that the love and₹ affection for the parents to their son cannot stand on a lower footing on comparison with love and affection towards the wife and children, if the deceased had contracted the marriage. We find it appropriate to grant compensation for love and affection as 1,00,000/- after deducting 20,000/-₹ ₹ and the balance payable is **₹80,000/-** . We are passing such an order because of the fact that the accident occurred in the said case considered by the Hon'ble Supreme Court in 2013 (3) KLT 89 was of the year 2007 whereas, in the instant case, it was much thereafter, in the year 2008. M.A.C.A No.864 2013 © 10 Accordingly, we find that the total balance compensation payable to the appellant comes to **₹17,35,600/-** (Rupees Seventeen lakhs thirtyfive thousand six hundred only) **[16,41,600+80,000+14,000]** . This amount requires to be satisfied with interest @ 9 p.a. from the date of petition, till satisfaction, except for the period of delay of 272 days condoned as per order dated 28.02.2017 passed by this Court in C.M.Appl.No.1076 of 2013. The due amount shall be deposited before the Tribunal, at the earliest, at any rate, within 'one month' from the date of receipt of a copy of this judgment. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** sd/- ## **A.M.BABU, JUDGE** /TRUE COPY/ P.A.TO JUDGE AMV/21/03/2017