K.A. Padmavathy & Others v. Manikandan & Others and Oriental Insurance Co. Ltd.

MACA.No.726/2010 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945_ ## _MACA NO. 726 OF 2010_ _AGAINST THE ORDER/JUDGMENT OPMV 319/2007 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL TIRUR_ ## _APPELLANTS/PETITIONERS:_ - _1 K.A.PADMAVATHY, W/O.LATE CHANDARASHEKARAN NAIR,_ - _2 SHERLI, W/O.LATE SREERAMAMOORTHI,_ - _3 VISHAL S.R. S/O.LATE SREERAMAMOORTHI,_ - _4 JISHNU S.R., MINOR S/O.LATE SREERAMAMOORTHI (MINOR APPELLANT,_ - _REPRESENTED BY NEXT FRIEND MOTHER, SHERLI), (ALL APPELLANTS RESIDING AT KANNATHANGADI PARAMBIL, 'ARDA', KALADY P.O., PONNANI TALUK, MALAPPURAM DIST._ _BY ADV.SRI.T.C.SURESH MENON_ ## _RESPONDENTS/RESPONDENTS:_ - _1 MANIKANDAN & OTHERS, KURUPPATH VALAPPIL HOUSE, PUROOKKARA, EDAPPAL PONNANI TALUK._ - _2 SANKARAN P.N. POLIL HOUSE, KALPARAMBU, THRISSUR DISTRICT._ - _3 THE ORIENTAL INSURANCE CO.LTD.,_ MACA.No.726/2010 2 _BRANCH OFFICE, P.B.NO.8, JYOTHI SUPER BAZAAR, THODUPUZHA._ _BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.GEORGE CHERIAN (SR.) SRI.FASALUR RAHIMAN SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.726/2010 3 ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV).No.319 of 2007 on the file of the Motor Accidents Claims Tribunal, Tirur. The said claim petition was submitted by them seeking compensation for the death of one Sreeramamoorthy due to the injuries sustained in a motor accident that occurred on 08.12.2006. 2. According to the appellants, the accident occurred when the scooter ridden by the deceased was hit by a bus bearing registration No.KL-8Y-8577, driven by the 1[st] respondent. The said vehicle was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. The deceased was aged 43 years at the time of the accident, and according to them, he was working as a Marketing Manager in Badre-A1Samah Poly Clinic in Muscat with a monthly income of Rs.60,000/-. According to them, he was granted a Visa from Spain and was making arrangements to shift to Spain, when the accident occurred. The claim petition was submitted in such circumstances. 1[st] appellant is the mother, MACA.No.726/2010 4 2[nd] appellant is the wife, and the other respondents are the children of the deceased. 3. The 3[rd] respondent Insurance Company alone contested the matter by filing a written statement. They admitted the coverage of the policy but disputed the liability on various grounds. The negligence, as well as the quantum of compensation, was also disputed by them. 4. in this case, the evidence consists of the oral testimony of PW1 and PW2, and as documentary evidence, Exts.A1 to A13 were marked from the side of the appellants. No evidence was adduced from the side of the respondents. After examining the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the bus as well as the deceased himself. The contribution from the deceased was fixed at 20%, and thus, being the insurer of the bus, the 3[rd] respondent was held liable to pay 80% of the compensation. The quantum of compensation was fixed as Rs.7,75,000/- and the 3[rd] respondent was directed to deposit Rs.6,20,000/- being 80% of the said compensation MACA.No.726/2010 5 along with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 5. Heard Sri.T.C.Suresh Menon, learned counsel for the appellants and Sri. George A. Cheriyan learned counsel for the respondent Insurance Company. 6. The learned counsel for the appellants highlights the inadequacy of the compensation awarded by the Tribunal on various heads. The main challenge is concerning the amount awarded under the head of loss of dependency. By placing reliance upon Ext.A11, which is the salary certificate issued by the employer at Muscat, it was contended that as per the said salary certificate, the deceased was getting a monthly income of 550 Omani Riyal, which, as per the conversion rates prevailing at the relevant time, comes to Rs.65,450/-. However, the Tribunal took only a meagre amount of Rs.6,000/- as monthly income and therefore, the learned counsel seeks enhancement thereof. MACA.No.726/2010 6 7. On the other hand, The learned Senior Counsel for the insurer stoutly opposes the aforesaid prayer by pointing out that Ext.A11 cannot be relied on for determining the monthly income as Rs.65,000/-. It was pointed out that as per Ext.A11 certificate, the deceased was working in the said establishment since July, 2006, whereas the accident occurred on 08.12.2006. This would indicate that the deceased was in the establishment only for a period of less than six months. 8. I have carefully gone through the records, particularly the Ext.A11 salary certificate and Ext.A8 passport of the deceased. As rightly pointed out by the learned Senior counsel appearing for the 3[rd] respondent, Ext A11 would indicate that the deceased was working as a Marketing Executive since July, 2006 only. The entries in the passport also substantiate the said contention. It is also relevant to note that the passport which was availed at the time of the accident was issued on 01.03.2006, and the previous passport was issued on 26.05.2005. The entries in both passports, which are part of the records as Ext.A8, would indicate that the deceased obtained MACA.No.726/2010 7 the passport only on 26.05.2005. No documents are forthcoming to indicate that he was working abroad before the said date. The learned counsel for the appellants contended that there is an endorsement in the passport that he initially obtained a passport in the year 1996, which was later cancelled and returned to the holder due to faded entries. But since there is nothing to indicate that he was working abroad for a considerable period, it cannot be assumed that he was in a regular employment abroad. Even though the learned counsel for the appellants pointed out that he obtained a Schengen Visa, which would enable him to visit European countries, the entries in his passport would indicate that the said Visa was valid from 25.11.2006 to 15.12.2006. Therefore, in the absence of any specific materials indicating regular employment abroad, the Ext.A11 certificate cannot be relied on as the same pertains to a period too short to reckon the monthly income. Therefore, the monthly income of the deceased is to be calculated by adopting the standards that are prevailing in India MACA.No.726/2010 8 and the other relevant aspects discernible from the records before this Court. 9. One of the relevant aspects to be noticed is the educational qualification of the deceased. Ext.A13 certificate would indicate that he was a graduate. Apart from the same, no specialised qualifications are mentioned. However, the entries in the passport would indicate that he used to travel abroad, which suggests that he was a person with reasonably good financial means. Therefore, even though no specific documents are available on record indicating regular income, while fixing the monthly income, the said aspect can be taken into account. In this regard, the appellant has a specific case that he intended to go to Spain for employment, and the accident occurred while he was taking steps for the same. As mentioned above, the entries in the passport show frequent foreign visits. All these would, to some extent, probabilise the case of the appellant. As per the principles laid down by the Honourable Supreme Court in **Ramachandrappa** MACA.No.726/2010 9 **v. Manager, Royal Sundaram Alliance Insurance co. Ltd [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735],** in the absence of any evidence as to the monthly income, it can be fixed as Rs.4,500/- in respect of an ordinary employee for an accident that occurred in the year 2004. The common method adopted to determine the monthly income for the subsequent years is to make an addition of Rs 500/- per year. If such a method is adopted, the monthly income of an ordinary worker can be fixed at Rs.5,500/- in respect of an accident that occurred in the year 2006. However, in this case, even though Ext.A11 cannot be accepted, it would indicate that he was working abroad for a short period with a salary as high as Rs.65,000/-. Of course, it cannot be relied on as the same was for a very short tenure. However, as observed above, the entries in the passport would indicate frequent foreign travels by the deceased to various destinations. Therefore, that reflects the financial stability of the appellant and therefore, in the facts and circumstances herein, I deem it appropriate to fix the MACA.No.726/2010 10 monthly income as Rs.10,000/-, taking note of these aspects. As the deceased was aged 43 years at the time of the accident, an addition of 25% is to be made towards the future prospects. As he left behind four dependents, towards the personal expenses ¼[th] can be deducted. While reassessing the compensation with the above salary, the amount would come to Rs.15,75,000/[(10000 + 25%) x 12 x 14 x3/4). After deducting Rs.7,20,000/-, already awarded by the Tribunal under the said head, the additional amount would come to Rs.8,55,000/-. 10. Another head to be considered is the loss of consortium. The amount awarded under this head is Rs.25,000/to the 2[nd] respondent, the wife of the deceased. In addition to that, Rs.10,000/- each were granted to the appellants 3 and 4, the children of the deceased, towards loss of love and affection. As per the principles laid down in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** and **United India Insurance Co.Ltd v. Satinder Kaur [2021(4) KLT SN 10(C.No.8) SC]** all the appellants are entitled to compensation for loss of consortium at the rate of 40,000/-. In **New India** MACA.No.726/2010 11 ## **Assurance Co.Ltd. v. Somwati and Others [(2020) 9 SCC** **644],** it was held that if compensation is awarded under the head loss of consortium, no separate amount needs to be granted for loss of love and affection. Therefore, amounts already awarded by the Tribunal under the head of loss of consortium and loss of love and affection can be adjusted against Rs.1,60,000/- which is the amount determined by this court under the head of loss of consortium. Thus, the additional compensation receivable by the appellants is Rs.1,15,000/-(160000 - (25000 + 10000 +10000)). The amount awarded towards funeral expenses is Rs.5000/-, whereas the actual amount is Rs.15,000/- and hence an additional amount of Rs.10,000/- is granted. No amount is seen granted for loss of estate, and therefore, a further sum of Rs.15,000/- is awarded under the said head. Thus, the total amount of compensation receivable by the appellant, in addition to the amount fixed by the Tribunal, is found as Rs.9,95,000/- (855000 + 115000 + 10000 + 15000). 11. Another aspect to be considered is the question regarding contributory negligence. The Tribunal has found that MACA.No.726/2010 12 the contribution of the deceased in the accident was 20%. However, the Tribunal entered the said finding based on Ext.A5 scene mahazar. The Ext.A6 final report submitted by the appellants would indicate that, after investigation, the Police found that the accident occurred due to negligence on the part of the bus driver. As per the principles laid down by this Court in **New India Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648]** , the conclusion arrived at by the Police after the investigation of the crime registered in connection with the accident can be accepted, in the absence of contra evidence in this regard. In this case, the respondent has not adduced any contra evidence and therefore, the conclusion in Ext.A6 final report can be accepted. Thus, the finding of the Tribunal attributing 20% of contributory negligence upon the deceased is set aside by holding that the 3[rd] respondent is liable to pay the entire compensation determined by this Court. In the result, this appeal is allowed, the award dated 28.03.2009 in O.P.(MV).No.319 of 2007 on the files of the Motor Accidents Claims Tribunal, Tirur, is hereby modified by setting MACA.No.726/2010 13 aside the findings of the Tribunal on the question of contributory negligence and also enhancing the compensation by granting an additional amount of Rs.9,95,000/- to the appellants. The 3[rd] respondent is directed to deposit the enhanced compensation of Rs.9,95,000/- with interest at the rate of 8% per annum. They shall also deposit 20% of the amount already awarded by the Tribunal along with interest at the rate as ordered by the Tribunal, from the date of petition till realization, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/17.10.23