Jincy Joby and Others v. Manjunatha N., Ragavendra M., and Sriram General Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 MACA NO. 2945 OF 2020`** ## **`AGAINST THE AWARD IN OP(MV)NO.922/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANTS:`** ``` 1JINCY JOBY AGED 28 YEARS W/O JOBY JOSE,MAMBRA HOUSE, ANCHERI DESOM AND P.O,OLLUR VILLAGE-680006,THRISSUR TALUK. 2ERIN.M.J, AGED 9 YEARS D/O LATE JOBY JOSE,MAMBRA HOUSE, ANCHERI DESOM AND P.O,OLLUR VILLAGE-680006,THRISUR TALUK. 3EVIN.M.J, AGED 7 YEARS S/O LATE JOBY JOSE,MAMBRA HOUSE, ANCHERI DESOM AND P.O,OLLUR VILLAGE-680006,THRISSUR TALUK, (2 AND 3 MINORS REPRESENTED BY THEIR NEXT FRIEND AND GUARDIAN MOTHER 1ST APPELLANT JINCY, W/O LATE JOBY JOSE). 4MAGGY JOSE, AGED 63 YEARS M/O LATE JOBY JOSE,MAMBRA HOUSE, ANCHERI DESOM AND P.O, OLLUR VILLAGE-680006,THRISSUR TALUK. BY ADVS. A.R.NIMOD SRI.M.A.AUGUSTINE ``` ## **`RESPONDENTS:`** ``` 1MANJUNATHA N. S/O NAGARAJU.B,SUNNANAGAR STREET, GOPALAPURA, 12TH WARD,HIRIYUR CHITHRADURGA, KARNATAKA STATE-572130. 2RAGAVENDRA.M, S/O MUKUNDAPPA,PANJIGANAHALLI, JAYANAGARA EXT,LAKSHMISAGARA.P.O, SIRA TALUK,TUMKUR DT, KARNATAKA STATE-572139. 3SRIRAM GENEAL INSURANCE CO.LTD, JAIPUR,RAJASTHAN-302022, REPRESENTED BY ITS BRANCH MANAGER. BY ADVS. ``` ## **`MACA NO. 2945 OF 2020 2`** ``` K.V.RASHMI SRI.P.JACOB MATHEW SMT.PREETHY NAIR SRI.MATHEWS JACOB (SR) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2945 OF 2020 3 ``` ## **`JUDGMENT`** On 13.04.2017, when late Joby and another were walking along the side of a National Highway, the offending car driven in a rash and negligent manner hit them, causing their death almost instantaneously. The legal heirs of late Joby, thereupon, filed O.P(MV)No.922 of 2017 before the Motor Accidents Claims Tribunal, Irinjalakuda (‘Tribunal’ for short), seeking compensation of an amount of Rs.45 Lakhs limited to Rs.13 Lakhs; but which has been allowed only to a sum of Rs.4,56,661/-. They assail the compensation as being inadequate. 2. Sri.A.R.Nimod – learned counsel appearing for the appellants, vehemently argued that the learned Tribunal has egregiously erred in reckoning the notional income of the deceased to be Rs.15,000/-, when the uncontroverted and unimpeached evidence on record establishes that he was drawing nearly Rs.32,000/- per month. He, however, conceded that the amount of salary shown in the claim petition is only Rs.20,000/-; but argued that, in view of _**Minu Rout and Another v. Satya Pradyumna Mohapatra and Others [(2013) 10 SCC 695],**_ the learned Tribunal was obliged to have ascertained the actual income of the deceased, rather than have proceeded to fix it on a notional basis. ## **`MACA NO. 2945 OF 2020 4`** He thus prayed that this appeal be allowed, reckoning the income of the deceased to be a minimum of Rs.32,000/- per month; and thus revising the compensation under the head ‘Loss of Dependency’ accordingly. 3. Sri.Mathews Jacob - learned Senior Counsel, instructed by Smt.Preethy Nair – learned Standing Counsel appearing for the Insurance Company, on the other hand, refuted the afore assertions of the appellants, arguing that the actual income of the deceased has not been proved even from Exts.X1 to X3 produced by PW1, who was his employer. He argued that, as has been rightly found by the learned Tribunal, these documents do not establish the income of the deceased, but only gives various figures with respect to the amounts alleged to have been received by him from April 2016 to March 2017. 4. Sri.Mathews Jacob - learned Senior Counsel, then contended that, therefore, the learned Tribunal could have done nothing more than to have taken an average of the figures and to have then adopted a notional income, as it has correctly done; resultantly, arriving at the figure of Rs.15,000/- per month. The learned Senior Counsel concluded saying that, apart from the above, no amount under the head ‘Pain and Sufferings’ would have been ## **`MACA NO. 2945 OF 2020 5`** granted to the appellants in view of _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780];**_ and thus prayed that this appeal be dismissed. 5. Smt.K.V.Rashmi – learned counsel appearing for respondent No.2, conceded that her client was the driver of the vehicle, but pointed out that the learned Tribunal has not mulcted him with any responsibility. She, therefore, prayed that this appeal as against him be dismissed. 6. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 7. As the afore narrative would show, the sole controversy between the parties is as to the notional income of the deceased. While the appellants claim that he was earning nearly Rs.32,000/per month, the Insurance Company contends to the contrary and says that not more than Rs.15,000/- could have been reckoned, as has been correctly done by the learned Tribunal. 8. The evidence on record, particularly the testimony of PW1 - who was the employer of the deceased, would show that certain ## **`MACA NO. 2945 OF 2020 6`** figures were being paid to him on a monthly basis, but which varied. This is evident from Ext.X1 - Muster Roll, Ext.X2 - Wage Register as also from the endorsements in Ext.X3 – Income Tax Returns of the employer; but it has been explained by PW1 that this is because, certain overtime allowances have been added to his basic salary. 9. When one examines Ext.X2- Wage Register, it is rendered without doubt that it records the wages paid to all the employees of PW1; while Ext.X1 - Muster Roll runs in tandem with respect to the names and the designations of such employees. Coming to Ext.X3, it is the Income Tax Returns of the employer, wherein the total wages of the employees have been claimed as expenses. Obviously, therefore, there is nothing to discredit these documents, particularly when the testimony of PW1 remains unimpeached, even after he was thoroughly cross examined by the Insurance Company. 10. The question, therefore, arises as to how the learned Tribunal ought to have reckoned the income of the deceased. When one evaluates Ext.X2 – Register of Wages, it shows that the deceased was paid Rs.27,115/- in April 2016, which then increased to Rs.35,769/- in the next month, namely, May 2016. Similarly, in the months of June, July, August and September 2016, sums ranging between Rs.35,765/- and Rs.31,153/- had been recorded as paid; ## **`MACA NO. 2945 OF 2020 7`** while, in October 2016, it is reduced to Rs.26,923/-. However, in November 2016, the amount paid is shown to be Rs.35,000/-; while that for the next months, until March 2017, ranges between Rs.28,076/- and Rs.32,222/-. It is on this basis that Sri.A.R.Nimod argues that the average income to be reckoned in favour of the deceased ought to have been Rs.31,547/-. 11. As I have already said above, Ext.X2 - Wage Register and Ext.X1 - Muster Roll remains unimpeached in evidence. The basic salary of the deceased has not been established, but clearly, the minimum figure in Ext.X2, during the period from April, 2016 to March, 2017, is Rs.26,923/-. Therefore, this Court can safely adopt the said figure as the notional income; but, in order to balance the rival interests, I deem it appropriate to notionally adopt the figure of Rs.25,000/-, with future prospects, as is eligible, added to it as per the judgment of the Hon’ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662],**_ since the deceased was only 34 years at the time of the accident and his consequential unfortunate death. The parties are _ad idem_ that the future prospects to be added to his income is 40%. 12. That said, I find favour with the submissions of the learned Senior Counsel, that the Tribunal could not have been granted any ## **`MACA NO. 2945 OF 2020 8`** amount under the head ‘Pain and Sufferings’, in view of _**Satwinder Kaur (Supra).**_ 13. Since no other controversy has been impelled by either of the parties, I proceed to dispose of this appeal in the following manner: (a) The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.50,40,000/-, instead of Rs.30,24,000/-, reckoning the notional income of the deceased to be Rs.25,000/- per month, with 40% future prospects added to it and 1/4 deducted towards his personal expenses, since he is survived by the appellants who were four in numbers, and were all admittedly depended upon him. The multiplier adopted for this purpose is ‘16’, as is admitted by both sides, as per _**Sarla Verma v. Delhi Transport Corporation [2010**_ ## _**(2) KLT 802].**_ (b) The compensation awarded by the Tribunal under the head ‘Pain and Sufferings’ to a sum of Rs.15,000/- is deleted, as per _**Satwinder Kaur (Supra).**_ In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellants will be at full liberty to recover the ``` MACA NO. 2945 OF 2020 9 ``` compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 8 **%** as awarded by the Tribunal, from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the sums as fixed above, shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. Needless to say since this Court has only considered the afore issues, every other finding of the learned Tribunal, including the liberty granted to the Insurance Company to recover the amounts of compensation, after honouring it to the claimants, from the 1[st] respondent, is left unaltered. **==> picture [445 x 66] intentionally omitted <==** ## **`Sd/-`** ## **`DEVAN RAMACHANDRAN`** ## **`JUDGE`** ``` MC/13.4 ```