Kamala M.V. and others v United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939** **MACA.No. 1115 of 2012** **AGAINST THE AWARD DATED 31-10-2011 IN OP(MV) no.161/2004 of M.A.C.T., THALASSERY** ## **APPELLANTS/PETITIONERS:** **------------------------** **1 KAMALA M.V., AGED 48 YEARS, W/O T.MUKUNDAN, THOONOLI HOUSE, EDAKKEPURAM SOUTH,** **P.O.CHERUKUNNU, KANNUR DISTRICT.** **2 MINESH M. V., AGED 26 YEARS, S/O T.MUKUNDAN, THOONOLI HOUSE, EDAKKEPURAM SOUTH, P.O. CHERUKUNNU, KANNUR DISTRICT.** **3 MIGESH M.V.,AGED 24 YEARS,** **S/O T.MUKUNDAN, THOONOLI HOUSE, EDAKKEPURAM SOUTH, P.O. CHERUKUNNU, KANNUR DISTRICT.** ## **4 T.LAKSHMI,** **D/O CHALADAN KANNAN, THOONOLI HOUSE, EDAKKEPURAM SOUTH, P.O. CHERUKUNNU, KANNUR DISTRICT.** **BY ADV.SRI.M.V.AMARESAN** ## **RESPONDENT/RESPONDENT NO.3:** **--------------------------** **UNITED INDIA INSURANCE CO. LTD. CHOVVA BRANCH, CALTEX JUNCTION, KANNUR-2.** **BY ADV. SRI.T.V.AJAYAKUMAR BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A.No.1115 of 2012(C)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 17[th] day of January, 2018_ ## **J U D G M E N T** Appellants are the petitioners in O.P.(MV) No.161 of 2004 on the files of the Motor Accidents Claims Tribunal, _(hereinafter referred to as 'the Tribunal'),_ Thalassery. The said Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming a total sum of Rs.10,00,000/- as compensation for the damage caused by the death of the deceased. 2. The appellants are the legal representatives of the deceased by name 'Mukundan'. After considering the evidence on record and the contention raised by the respondents resisting the claim, the Tribunal passed the impugned award granting a compensation of Rs.3,44,000/- with 7.5% interest to the appellants. The inadequacy of the **M.A.C.A.No. 1115 of 2012(C)** ## **-: 2 :-** quantum of compensation under various heads of claim is challenged in this appeal. 3. According to the impugned award, the deceased Mukundan met with an accident, when he was riding a motorcycle. When he reached the place of accident, the offending vehicle driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent, hit the motorcycle and as a result of the hit, he fell down and sustained grievous injuries. He succumbed to the injuries, after one month. The Tribunal found that the accident has occurred due to the rash and negligent driving of the 2[nd] respondent and thereby the respondents are jointly and severally liable to pay compensation and the Insurance Company was directed to pay compensation, as the liability was covered by ## **M.A.C.A.No. 1115 of 2012(C)** ## **-: 3 :-** the policy issued by the Insurance Company. 4. The learned counsel for the appellants highlighting the inadequacy of the quantum of compensation granted under the various heads of claim. It is contended that the Tribunal has seriously erred in taking Rs.3,000/-, as monthly income instead of Rs.25,000/-, as claimed and proved by the production of Exts.A12 to A16 through PWs.2 to 5. The Tribunal has failed to appreciate the oral testimony of PWs.2 to 5 and documentary evidence of Exts.A12 to A16 in its correct perspective. The amount granted under heads 'loss of estate', 'loss of consortium' and 'pain and sufferings' are inadequate and disproportionate with the actual loss suffered by the appellants by the death of the deceased Mukundan. The Tribunal has omitted to **M.A.C.A.No. 1115 of 2012(C)** ## **-: 4 :-** consider future business prospects of the deceased as a self-employed. 5. In view of the arguments at the Bar, the sole question that arises for consideration is, is the Tribunal justified in determining the quantum of compensation under the heads of claim referred above? The main challenge is focused on the inadequacy of the amount fixed as monthly income. 6. I have meticulously gone through Issue No.3, wherein the Tribunal determined Rs.3,000/- as monthly income. Ext.A13 is the certificate issued by a bank stating that the deceased Mukundan has joined in a group deposit, as per which he was depositing Rs.5,000/- per month and he has deposited money up to 18.11.2003 and the total amount deposited was Rs.92,100/-. ## **M.A.C.A.No. 1115 of 2012(C)** ## **-: 5 :-** 7. It is pertinent to note that the date from which he started such a deposit is not specifically stated in the said certificate issued by the Bank. PW.2 is the Manager, who issued Ext.A13. In crossexamination he stated that the payment was being made by way of daily collection and pan card of the person had not been shown to the Bank nor did the Bank demand any document showing payment of income tax. But, he denied the suggestion that the said Mukundan was paying the amount for someone else. 8. Ext.A5 series are receipts showing payment of daily deposit. As per Ext.A5 series, the Tribunal observed that a perusal of Ext.A5 series would show that the name of Mukundan does find a place in those receipts. The appellants failed to produce ledger copy of the account which would prove the receipt of **M.A.C.A.No. 1115 of 2012(C)** ## **-: 6 :-** daily deposit in the account of Mukundan. Therefore, the Tribunal is justified in not taking Ext.A5 series for consideration to prove the monthly income of the deceased. PW.3 also stated that the ledger concerned is in the Bank and if the ledger is produced the correct position of the receipt of the amount will be ascertained. 9. Ext.A14 would show the payment of chitty subscription per month for a chitty and PW.4 was examined to prove Exts.A14. PW.4 deposed that it is not certified, in Ext.A14, that it is the true copy of the ledger extract of this Chitty Company. That apart, the registration number of the Company is not shown in Ext.A14. In Ext.A14, the payment up to 11[th] March, 2003 to November, 2003 alone is shown. No other document pertaining to the said chitty ## **M.A.C.A.No. 1115 of 2012(C)** ## **-: 7 :-** transaction was produced in evidence. Thus, existence of the said chitty company itself is suspicious. 10. This Court is of the opinion that Exts.A13 to A16 coupled with the oral testimony of PWs.2 to 5 would prove that the deceased Mukundan was depositing various amounts in Banks and chitty. In short, the aforesaid evidence shows that he has savings during his life. It further follows that he was an earning man; but it is not sufficient to arrive at an amount, as his monthly income. As rightly observed by the Tribunal, he was not an income tax payee and no evidence was forthcoming to prove the volume of business of his tailoring and ready-made shop. If he was earning Rs.25,000/- per month, certainly, the appellants could have produced **M.A.C.A.No. 1115 of 2012(C)** ## **-: 8 :-** copy of his sale tax returns, particularly, when he has ready-made garment business also. The absence of evidence to prove the volume of business is fatal and Exts.A13 to A16 cannot be taken as a reliable evidence to show the monthly income, which he was earning, during his life time, from the said business. Even if Exts.A13 to A16 are taken at its face value and admitted, those documents would prove that he was an earning man with some savings. But, that much evidence is not sufficient to arrive at a conclusion that he was earning Rs.25,000/- per month from his tailoring and ready-made shop. 11. In the absence of reliable and sufficient evidence to prove the monthly earnings, the Tribunal is justified in taking notional income only. But, the Tribunal has taken Rs.3,000/- only as notional **-: 9 :-** ## **M.A.C.A.No. 1115 of 2012(C)** income. The decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court held as follows: _"There is no reason to doubt the testimony of the appellant so far as his monthly income is concerned. Being a medical man aged about 36 years on the date of the accident, the monthly salary received by him cannot be said to be exaggerated. He has candidly admitted that he was not assessed to tax. A salary of Rs 3000 per month to a medical practitioner cannot be said to be on the higher side. We, therefore, accept his statement in this behalf. We also accept the assessment at Rs 40,000 for pain and suffering. However, the assessment of compensation under the head of loss of earning capacity is very much on the lower side. The injury to the right hand, which has left a permanent disability and which has affected the functioning of the limb and in particular the fingers, is a serious handicap to a medical practitioner. Patients would be reluctant to go to him for treatment and, therefore, the loss of earning capacity would be substantial. Even if we were to assume that it would reduce his earning capacity by 50% and even if we go by his earnings at the date of the accident, the monthly loss would come to Rs 1500 i.e. Rs 18,000 per annum. If_ **-: 10 :-** ## **M.A.C.A.No. 1115 of 2012(C)** _this monthly loss of earning is multiplied by 10 years purchase factor the compensation would work out to Rs 1,80,000. To that must be added the compensation allowed under certain other heads, namely, pain and suffering, loss of amenities, medical expenses, etc. The total amount comes to Rs 2,38,000."_ 12. In the above view, this Court finds that Rs.3,000/- is inadequate and the same will stand enhanced and modified to Rs.4,500/-. 13. The learned counsel for the appellants further advanced arguments contending that at the time of death, Mukundan was aged 46 years only and he was conducting a business in a good manner. Therefore, the Tribunal ought to have taken his business prospectus and prospective income for fixing the monthly income. In order to fortify the said argument, the learned counsel for the petitioners cited the decision of the Hon'ble **M.A.C.A.No. 1115 of 2012(C)** ## **-: 11 :-** Supreme Court in _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350(SC)]. In the aforesaid decision, the Hon'ble Supreme Court held as follows: _“(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”_ 14. In the instant case, it has come out in evidence that the deceased Mukundan was an earning man and he was conducting a tailoring and ready-made shop. He was aged 46 years only at the time of death. Therefore, 25% of the monthly income must be added to the monthly income, considering his business prospects as a self-employed person. ## **M.A.C.A.No. 1115 of 2012(C)** ## **-: 12 :-** 15. Having regard to the above view, the monthly income will stand enhanced and modified to Rs.5,624/-(Rs.4,500 + 1,124). But,[1] /3 of the said amount has to be reduced for his living expense. Thus, the amount granted under the heads 'loss of dependency' would stand enhanced and modified to Rs.5,47,456/-(Rs.5,264x13x12x[2] /3). 16. In _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350(SC)] the Hon'ble Supreme Court held as follows: _“54. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though_ _**Rajesh** refers to_ _**Santosh Devi** , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike_ ## **M.A.C.A.No. 1115 of 2012(C)** ## **-: 13 :-** _determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.”_ 17. In view of the amount fixed in the above decision, the amount granted under the head 'funeral ## **M.A.C.A.No. 1115 of 2012(C)** ## **-: 14 :-** expenses', 'loss of estate', and 'loss of love and affection' would stand enhanced to Rs.15,000/-, 15,000/-, 20,000/- respectively from Rs.5,000/- each granted by the Tribunal. Similarly, the amount granted under head 'loss of consortium', would stand enhanced and modified to Rs.40,000/- from Rs.10,000/-. 18. It has come out in evidence that the accident has occurred on 13.11.2003 and he died on 18.12.2003 only, after a period of one month Rs.5,000/- was granted under the head 'pain and sufferings'. This Court finds that the said amount is inadequate, when considering the long period during which he was undergoing treatment as an inpatient for the grievous injuries suffered by him. Therefore, the amount for 'pain and sufferings' will ## **M.A.C.A.No. 1115 of 2012(C)** ## **-: 15 :-** stand enhanced and modified to Rs.15,000/-. Thus, the total compensation to the appellants is Rs.6,52,456/-[5,47,456 + 15,000 + 15,000 + 20,000 + 40,000 + 15,000] The remaining portion of the impugned award would stand undisturbed and operative. It is needless to say the said amount would carry interest, as stipulated by the Tribunal. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL** **JUDGE** DST //True copy// P.A. To Judge