Liji C. Mathew and Beulah Arun (minor) v. Sathyan S/o Ayyappa Kutty, Bobby Paul and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943** ## **MACA NO. 1913 OF 2011** **AGAINST THE AWARD DATED 24.03.2011 IN OPMV 78/2006 OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,PATHANAMTHITTA.** ## **APPELLANT/ PETITIONER 1 & 2:** 1 LIJI.C.MATHEW W/O.ARUN M.CHANDY, MURINGATHARA HOUSE, PANAGATTUKARA P.O., VADAKKANCHERRY, THRISSUR, NOW RESIDING AT NILAMELTHEKKTHIL HOUSE, NANNUVAKKADU, PATHANAMTHITTA DISTRICT. 2 BEULAH ARUN (MINOR) D/O.ARUN M.CHANDY, REP. BY HER MOTHER LIJI C.MATHEW, MURINGATHARA HOUSE, PANAGATTUKARA P.O., VADAKKANCHERRY, THRISSUR, NOW RESIDING AT NILAMELTHEKKTHIL HOUSE, NANNUVAKKADU, PATHANAMTHITTA DISTRICT. (THE NAME OF THE IST APPELLANT IS WRONGLY SHOWN AS LIJU C.MATHEW INSTEAD OF LIJI C.MATHEW IN THE AWARD). BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI ## **RESPONDENTS/RESPONDENTS 1 TO 3:** 1 SATHYAN S/O.AYYAPPA KUTTY, MUDANTHARA VEEDU, PALAYOOR, CHAVAKKAD, THRISSUR DISTRICT - 680506. - 2 BOBBY PAUL MANAGING PARTNER, STAR PLASTICS, MULLAKKARA, THRISSUR DISTRICT -680001. - 3 THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., PARK HOUSE, ROUND NORTH, THRISSUR - 680001 2 MACA No 1913 of 2011 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA No 1913 of 2011 ## **Dated this the 17[th] day of March, 2022** ## **J U D G M E N T** The appellants were the petitioners in O.P.(M.V) No.78 of 2006 on the file of the Additional Motor Accidents Claims Tribunal, Pathanamthitta. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Arun M. Chandy (deceased) - the husband of the first appellant and the father of the second appellant. It was their case that, on 13.10.2005, while the deceased was riding his motorcycle bearing registration No.KL-7N/6495 along the ThrissurShornoor public road, a lorry bearing registration No. 4 MACA No 1913 of 2011 KL-08 AB /9210, driven by the first respondent in a negligent manner came from the opposite direction and hit the motorcycle of the deceased. The deceased sustained fatal injures and lost his life instantaneously. The deceased was employed as a salesman at Al Munafis Auto Spare Parts Company, Al Ain, United Arab Emirates (in short U.A.E) and was earning 3000/- U.A.E.Dirhams per month. The lorry was owned by the second respondent and insured with the third respondent. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.17,00,000/- from the respondents. 3. The respondents entered appearance and filed separate written statements. The third respondent contended that the accident occurred due to the negligence of the deceased. Nonetheless, the third respondent had admitted that the lorry had a valid 5 MACA No 1913 of 2011 insurance coverage. 4. The appellants had produced and marked Exts A1 to A12 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the third respondent an amount of Rs.11,36,000/- with interest a the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 7 Heard; Sri. T.K.Koshy, the learned counsel appearing for the appellants/petitioners and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent/insurer. 8. The point that emanates for consideration in the 6 MACA No 1913 of 2011 appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 9. Exhibit A8 final report filed by the Viyoor Police in Crime No.543/2005 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Exhibit A8 final report. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income** 10. The appellants had claimed that the deceased was working as a salesman in a private company in Al Ain 7 MACA No 1913 of 2011 in UAE and was earning 3000/- UAE dirhams. To substantiate their contentions, they had produced Exhibit A10 salary certificate and Exhibit A11 copy of the residence visa, to prove that the deceased had a resident visa to reside in the U.A.E. for the period from 18.07.2005 to 17.07.2007. 11. The Tribunal, for the reason that Exhibits A10 and A11 were not properly proved and that there was no supporting evidence to establish that the deceased was earning a monthly income of Rs.30,000/-, fixed the monthly income of the deceased on notional basis at Rs.8000/-. 12. The Hon’ble Supreme Court in **United India Insurance Company Ltd.** V. **Sathinder Kaur @ Satwinder Kaur and others** [2020 (3 )KHC 760 (SC)] has expressly held that, the salary/income certificate of a person employed abroad, to be accepted in evidence by 8 MACA No 1913 of 2011 the courts in India, the document has to be attested by the Indian Mission in the foreign country. Like wise, this Court in **Valsamma v. Binu Jose** [ 2014(1) KLT 10] has held that if there is no substantial evidence to prove the income of a person said to be employed abroad, Indian standards have to be adopted. 13. In the instant case, it is proved as per Exhibit A11, that the deceased had a resident visa for the period from 18.07.2005 to 17.07.2007. Exhibit A10 salary certificate issued by the employer of the deceased is not attested by the Indian Mission in UAE. There is also no supporting material to prove his income. Therefore, the principles laid down in **Valsamma’s** case (supra) have to be followed. 14. Taking into account the fact that the deceased was employed as a salesman in the United Arab Emirates, and the accident happened in 2005, I am of the firm view 9 MACA No 1913 of 2011 that the income of the deceased is to be fixed on notional basis at Rs.10,000/- per month. ## **Multiplier** 15. The deceased was aged 38 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '15'. **Personal living expenses of the deceased** 16. It is proved and established that the appellants were the wife and daughter of the deceased, they are two in number. Following the principles in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one - third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 17. In the light of the law laid down in **Sarla** 10 MACA No 1913 of 2011 **Verma** and **Pranay Sethi** (supra), and considering the fact that deceased was aged 38 years at the time of his death, I hold that the appellants are entitled to future prospects @ 40%. ## **Loss of dependency** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.10,000/-, the multiplier at ‘15’, future prospects at 40% and after deducting one-third of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.16,80,000/-, instead of Rs.10,88,000/awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 19. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral 11 MACA No 1913 of 2011 expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 20. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every 12 MACA No 1913 of 2011 three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 21. In the instant case, the Tribunal has awarded an amount of Rs.10,000/- under the head ‘funeral expenses’, Rs.15,000/-under the head 'loss of consortium’. Therefore, I enhance the compensation under the above two heads by a further amount of Rs.6,500/- towards ‘funeral expenses’ and a further amount of Rs.73,000/- under the head ‘loss of consortium’ i.e. Rs.44,000/- each to the appellants 1 and 2. 22. Likewise, I award the appellants an amount of Rs.16,500/-towards ‘loss of estate’. **Pain and sufferings and Loss of love and affection** 23. The Tribunal has awarded an amount of 13 MACA No 1913 of 2011 Rs.10,000/- each under the above two heads. In the light of the law laid down in Paragraph 19 of **Sarla Verma** and also in **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644],** I set aside the amounts awarded under the head ‘pain and suffering’, since the deceased had lost his life instantaneously and the amount awarded under the head ‘loss of love and affection’, as I have already awarded compensation under the head ‘loss of consortium’. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants /petitioners are entitled for enhancement of compensation as modified and re-calculated above, and given in the 14 MACA No 1913 of 2011 ## table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transport to hospital|2000|2000| |2|Funeral expenses|10000|16500| |3|Pain and suferings|10000|0| |4|Loss of love and<br>afection|10000|0| |5|Loss of estate|0|16500| |6|Loss of consortium|15000|88000| |7|Loss of dependency|1088000|1680000| |8|Medical expenses|1000|1000| ||Total|1136000|1804000| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.6,68,000/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 120 days, i.e.,( the period of delay in filing the appeal and as ordered by this Court on 12-12-2011 in C.M.Application No.2865/2011), and 15 MACA No 1913 of 2011 proportionate cost. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants 1 and 2 in the ratio of 50:50, and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm/17.03.2022