Fathimathu Suhara and Others v. N.K. Jayanthan, E.T. Dayanandan and The Oriental Insurance Co. Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 ``` ## _`MACA NO. 678 OF 2015`_ ``` AGAINST THE ORDER/JUDGMENT DATED 28.11.2014 IN OPMV 985/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR ``` ## _`APPELLANTS/PETITIONERS:`_ ``` 1FATHIMATHU SUHARA, W/O.LATE HAKKIM, 2HENA SHERRIN, MINOR, D/O.LATE HAKKIM MINOR REPRESENTED BY HER GUARDIAN NEXT FRIEND AND MOTHER FATHIMATHU SUHARA 3MUHAMMED, S/O.LATE ABDU (DIED, LRS IMPLEADED) (FATHERS OF LATE HAKKIM) 4SHAHIDA, W/O.MUHAMMED (MOTHER OF LATE HAKKIM) (ALL ARE RESIDING AT ERATTAYIL HOUSE, PAYYAKKAL HOUSE, P.O.PALAPETTY, MALAPPURAM DISTRICT, PIN - 679 579) ``` ``` *ADDL.A5NOUSHAD, S/O.LATE MUHAMMED, RESIDING AT ERATTAYIL HOUSE, PAYYAKKAL HOUSE, P.O.PALAPETTY, MALAPPURAM DISTRICT, PIN - 679 579 ``` - _`*ADDL.A6 NOUSHAJA, D/O.LATE MUHAMMED, RESIDING AT`_ - _`ERATTAYIL HOUSE, PAYYAKKAL HOUSE, P.O.PALAPETTY, MALAPPURAM DISTRICT, PIN - 679 579`_ ``` *[ADDITIONAL APPELLANT NOS.5 & 6 ARE IMPLEADED BEING THE LEGAL REPRESENTATIVES OF DECEASED 3RD APPELLANT IN THE APPEAL AS PER ORDER DATED 8.7.2021 IN IA NO.1/2021] ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## _`RESPONDENTS / RESPONDENTS:`_ ``` 1N.K.JAYANTHAN S/O.LATE N.K.NARAYANAN, NADUVILATHKANDY, WEST HILL CHUNGAM, WEST HILL P.O., KOZHIKODE DISTRICT, PIN - 673 005. 2E.T.DAYANANDAN S/O.APPU, ELAMPILATHODIKAYIL HOUSE, PAYIAMBRA, KANNAMANGALAM, KOZHIKODE DISTRICT PIN - 673 571. ``` MACA 678/2015 2 ``` 3THE ORIENTAL INSURANCE CO. LTD. DIVISION NO.1, SEEMA BUILDING G.H.ROAD, OP.KOTTAPARAMBA HOSPITAL PALAYAM, KOZHIKODE - 673 001. BY ADVS. SRI.GEORGE CHERIAN SR. FOR R3 SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI FOR R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 678/2015 3 **C.JAYACHANDRAN, J. -----------------------------------MACA No.678 of 2015 ------------------------------------Dated this the 28[th] day of October, 2022** ## **J U D G M E N T** **1.** One Mr.Hakkim met with an accident on 26.6.2012, when he was 33 years old and he succumbed to the injuries. His dependents/legal heirs are the claimants before the Motor Accidents Claimants Tribunal, Tirur in O.P(M.V) No.985/2013. They carried the instant appeal on the premise that the quantum of compensation granted by the Tribunal is on the lower side. **2.** Heard Sri.P.V.Chandramohan, learned counsel for the appellants and Smt.K.S.Santhi, learned counsel for the third respondent/insurance company. Perused the records. **3.** The main point canvassed by the learned counsel for the appellants is with respect to the MACA 678/2015 4 monthly income of the deceased. Learned counsel submitted that the deceased was working in Dubai from 1997 onwards and that he was under the same employer by name M/s.Morning Star Textiles and Tailors, from 2000 onwards. Just before the accident he got an employment in the Government Sector as Driver at Gulf. According to the learned counsel, the monthly salary of the deceased with M/s.Morning Star Textiles and Tailors was 3000 Dirhams, corresponding to Rs.45,000/-. His employment contract and a certificate issued showing the credited salary were produced by PW1, the wife of the deceased, but was not marked by the Tribunal for the reason that those documents were photostat copies. Learned counsel would submit that Ext.A7 passport and visa would vouch that the deceased was working abroad for a block of three years, commencing from the year 2000 and ending in 2012. When the employment contract and the certificate regarding salary disbursement would specifically MACA 678/2015 5 refer to a monthly salary of 3000 Dirhams, a reasonable amount should be fixed by this Court, even if such documents are photostat copies, is the submission made by the learned counsel for the appellants. The Tribunal has reckoned only Rs.15,000/- towards salary and future prospects, which is ridiculously on the lower side according to the learned counsel for the appellants. On other counts, learned counsel pointed out that towards personal expenses, only 1/4[th] ought to have been reduced, since the deceased was survived by four dependents, as against which, the Tribunal has reckoned 1/3[rd] . No amount was granted under the head ‘loss of estate’. **4.** The above submissions are seriously opposed by the learned counsel for the third respondent/Insurance Company. Learned counsel pointed out that the claimants should have produced the salary certificate of the deceased, duly authenticated by the Embassy of India, MACA 678/2015 6 failing which the salary claimed at a foreign country is not liable to be reckoned. Learned counsel relied upon the judgment of the Hon'ble Supreme Court in **United India Insurance Co. Ltd.** v. **Satinder Kaur @ Satwinder Kaur & Ors** [(2020) 3 KHC 760 (SC) in this regard. Photostat copies, which are not liable to be marked and which were not actually marked, cannot be reckoned for any purpose to fix the salary is the second submission. On other heads, learned counsel pointed out that Rs.25,000/- granted under the head funeral expenses has to be reduced to Rs.15,000/- as per the dictum in **National Insurance Co. Ltd.** v. **Pranay Sethi [2017 (4) KLT 662 (SC)]** . Similarly, under the head ‘consortium’, a sum of Rs.1,00,000/- has been granted and under the head ‘love and affection’ another Rs.1,00,000/- has been granted. This is liable to be reduced by applying the correct methodology of consortium at the rate of Rs.40,000/- for each claimant. Under the head MACA 678/2015 7 ‘pain and suffering’, Rs.10,000/- is seen granted, which is again an impermissible course, going by a judgment in **Oriental Insurance Company Limited** v. **Kahlon [AIR 2021 SC 3913]** . **5.** Having heard the learned counsel appearing on both sides, the issues will be addressed one by one. On the question of salary, it is true that the claimants ought to have produced a salary certificate from the employer of the deceased at Gulf, duly authenticated by the officials of the Indian Embassy as held in **Satinder Kaur** ( _supra_ ), which course, however, is not seen adopted. PW1, the wife of the deceased, mounted the box and claimed a salary of 3000 Dirhams for the deceased under the employer M/s.Morning Star Textiles and Tailors. She produced a salary disbursement certificate issued by Habeen Exchange Company LLC, wherein salary at the rate of 3000 AED is certified to have been credited in the account of the deceased for the period from May, 2011 to April 2012. Similarly, she produced an agreement MACA 678/2015 8 by and between the said M/s.Morning Star Textiles and Tailors and the deceased, where also the basic salary is fixed at 3000 Dirhams per month. However, these two documents were neither marked nor reckoned by the Tribunal for the reason that they were photostat copies. Learned counsel submitted that since the accident took place in India, the claimants could not secure the originals of those documents and produce the same before the Tribunal. **6.** Though the salary in terms of the two documents above referred and as claimed in the original petition is not proved, it has been established by virtue of Ext.A7 passport that the deceased had been employed in Gulf for the period from 2000 to 2012. The visa for a block of three years on four occasions could be seen from Ext.A7. Although an employment in the Government Sector as a Driver at Gulf is claimed, the accident took place before the deceased joined MACA 678/2015 9 the said service, as per the very showing in the Original Petition, as also, in terms of the evidence adduced by PW1. It is not disputed that the deceased was holding a valid driving licence, which was produced as Ext.A8, thereby indicating that the deceased was having the potential for a skilled job. When juxtaposed in the midst of the above referred facts and circumstances, the salary reckoned by the Tribunal, inclusive of the future prospects, at Rs.15,000/- per month is very much on the lower side. This Court is of the opinion that although Rs.45,000/-, corresponding to 3000 Dirhams, is not liable to be reckoned, it would be just and reasonable to reckon a monthly salary of Rs.20,000/- for the deceased, who was admittedly employed in Gulf for the past more than a decade prior to the accident and was possessing a valid driving licence, indicating his potential for a skilled job. It is so done. **7.** As regards other heads, there exists no serious controversy. A sum of Rs.10,000/- granted MACA 678/2015 10 under the head ‘pain and suffering’ is liable to be obliterated in terms of the judgment of the Hon'ble Supreme Court in **Kahlon** (supra). The funeral expenses is liable to be reduced to Rs.15,000/- from Rs.25,000/- as per the judgment in **Pranay Sethi** ( _supra_ ). A sum of Rs.15,000/- is to be reckoned towards loss of estate, which has not been awarded by the Tribunal. Consortium will be Rs.1,60,000/- calculated at the rate of Rs.40,000/- each for the four dependents, namely the wife and three children. 10% increase towards the conventional heads such as consortium, funeral expenses and loss of estate is contemplated in **Pranay Sethi** ( _supra_ ), which has been confirmed in **Jayasree N. and Others** v. ## **Cholamandalam MS General Insurance Company [AIR** **2021 SC 5218]** . The same is also liable to be reckoned. Future prospects is liable to be reckoned at 40%, the deceased being 33 years old at the time of death. As regards the deduction on account of personal expenses, the same has to be MACA 678/2015 11 reduced to 1/4[th] from 1/3[rd] , since the deceased had four dependents as claimants. **8.** In the circumstances, this M.A.C.A is allowed and the compensation amount payable to the claimants are re-worked as indicated in the tabular statement shown hereinbelow: |Sl.<br>No.|Head of claim|Amount<br>awarded<br>by<br>the<br>Tribunal(Rs)|Total amount<br>after<br>enhancement in<br>appeal (Rs.)| |---|---|---|---| |1|Medical<br>and<br>bystander expenses|38500|38500| |2|Bystander expenses|500|500| |3|Transportation<br>expenses|5000|5000| |4|Damage to clothing|1000|1000| |5|Pain and suffering|10000|Nil| |6|Loss of dependency<br>& future pecuniary<br>loss|1920000|4032000*| |7|Loss of consortium|100000|176000| |8|Loss of love and<br>affection|100000|Nil| |9|Funeral expenses|25000|16500| |10|Loss of estate|Nil|16500| ||Total|2200000|4286000| ||Amount enhanced =**Rs.20,86,000/-**(42,86,000 –<br>22,00,000).||| *[20000x(140/100)x12x(3/4)x16] MACA 678/2015 12 **9.** The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate 13 MACA 678/2015 ordered by the Tribunal from the date of petition. ``` Sd/- C.JAYACHANDRAN JUDGE ``` ``` jg ```