MACA No. 1668 of 2012 & Cross Objection No. 71 of 2015, United India Insurance Co. Ltd. vs. Meena B., Laya Lakshmi, Sikha, Krishnaveni and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938** **MACA.No. 1668 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 1043/2009 of M.A.C.T.,KOTTAYAM DATED 19-10-2011** ## **APPELLANT/3RD RESPONDENT:** **-------------------------------------** **UNITED INDIA INSURANNCE COMPANY LIMITED KOTTAYAM NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **--------------------------** **1. MEENA B.** **PAREPARAMBIL, ERAVINALLOOR P.O., PUTHUPALLY, KOTTAYAM, PIN-686315.** **2. LAYA LAKSHMI (MINOR) PAREPARAMBIL, ERAVINALLOOR P.O., PUTHUPALLY, KOTTAYAM, PIN-686315.** **3. SIKHA (MINOR), PAREPARAMBIL, ERAVINALLOOR P.O., PUTHUPALLY, KOTTAYAM, PIN-686315.** **4. KRISHNAVENI, PAREPARAMBIL, ERAVINALLOOR P.O., PUTHUPALLY, KOTTAYAM, PIN-686315.** **(MINOR RESPONDENTS 2&3 REPRESENTED BY THEIR MOTHER IST RESPONDENT).** **R1 TO 4 BY ADV. SRI.RAJEEV V.KURUP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-06-2016, ALONG WITH CO. 71/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1668 OF 2012 & Cross Objection No.71 OF 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of June, 2016 ## **JUDGMENT** ## Jyothindranath, J. M.A.C.A.No.1668/2012 is filed by the Insurance Company, whereas the cross objection is filed by the claimants in O.P.(MV) No.1043/2009 on the file of the Motor Accidents Claims Tribunal, Kottayam. An accident occurred on K.K. Road at Kottayam involving a motor bike bearing Reg.No.KL 5/S 6128 and a maruthi omni van bearing Reg.No.KL 7/Q 1703 on 25/04/2009. In the said motor vehicle accident, the rider of the bike sustained fatal injuries and he was immediately taken to Medical College Hospital, Kottayam. He succumbed to the injuries on 1.5.2009. Alleging that the accident occurred due to the negligence of the driver of the mini van involved in the accident, the legal heirs of deceased Mahesh moved a claim petition claiming a total compensation of Rs.47 lakhs. After appreciating the 2 MACA No.1668/2012 & C.O.No.71/2015 materials, the Tribunal awarded a total compensation of Rs.24,20,572/-. Aggrieved by the said award, the Insurance Company filed M.A.C.A.No.1668/2012. On getting notice, the claimants after appearance filed a cross objection as 71/2015. 2. When the above matters came up for hearing, the learned Senior Counsel appearing for the Insurance Company submitted before us that in this case the deceased was allegedly working as Grade I Assistant in Statistics Department of the District Statistics office, Kottayam. It is the submission that even though a certificate showing his salary was produced before the Tribunal, it was not actually proved. There is no proof regarding his occupation or salary . It is also the submission that even though the Tribunal took 30% additional amount towards future prospects and a total amount of around Rs.18,000/- was considered for calculation purpose, no deduction towards income tax was seen made. It is also the submission that admittedly it is a case of collision. The vehicles involved are one motor bike and a van. It is apparent from the materials before the Tribunal that there is MACA No.1668/2012 & C.O.No.71/2015 3 contributory negligence on the side of the deceased. That aspect was also not considered by the Tribunal. It is the further submission that the compensation awarded by the Tribunal is not a just compensation and is on a higher side. An interference is warranted, it is submitted. 3. The learned counsel for the cross appearing objectors/claimants submitted that here is a case where a Government employee died. Ext.A4 is the salary certificate issued from the department. It can be seen that the said salary certificate was marked before the Tribunal without any objection. When there was no objection in marking the document, it cannot be now said that it was not proved before the Tribunal. It is also the submission made by the learned counsel that the compensation awarded on the heads of funeral expenses, pain and suffering, loss of love and affection, loss of consortium are on a lower side. It is also submitted before us that Ext.A1 is the copy of the final report filed by the Police which will prima facie show that negligence was on the side of the driver of the van and when no other evidence is adduced by the Insurance Company, MACA No.1668/2012 & C.O.No.71/2015 4 it can be assumed or presumed that the driver of the van was negligent and his negligence was the cause of accident. 4. After hearing the submissions, we have perused the records. It can be seen that Ext.A1 is the final report filed by the Police in respect of Crime No.189/2009 before the Judicial First Class Magistrate Court No.I, Kottayam. It can be seen that the said case was charge sheeted under Section 279 and 304(A) of IPC against the driver of the omni van involved in the accident. Prima facie negligence is on the side of the driver of the omini van. This Court held in **New India Assurance Co. Ltd. v. Pazhaniammal ( 2011 (3) KLT 648)** that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. When there is no evidence adduced by the insurance company/owner of the vehicle/driver, it cannot be said that there was contributory negligence on the side of the deceased. 5. The next point to be considered is regarding the quantum of compensation. The main argument advanced by the learned Senior MACA No.1668/2012 & C.O.No.71/2015 5 Counsel is that the salary certificate of the deceased is not properly proved. We have perused the salary certificate which is marked as Ext.A4 before the Tribunal. On a perusal of the said document, it can be seen that even though it is styled as a salary certificate, it cannot be considered as the extract of the salary records maintained in the office in respect of his salary i.e. the details of the deductions are not shown in the said certificate and it cannot be said as a salary certificate reflecting his gross salary as well as the net salary after deductions. Surely, the said certificate contains the gross salary which is shown as Rs.14,325/-. But at the same time, it is conspicuously silent regarding the deductions. 6. We find force in the submission of the learned senior counsel for the Insurance Company that the said certificate is not properly proved. This is a case where there is challenge regarding the contents of the document. If the author of the certificate was examined, atleast the insurance company could have get an opportunity to cross examine and brought on record that it is not reflecting the actual MACA No.1668/2012 & C.O.No.71/2015 6 amount he was carrying home. But the fact that he was working as a Assistant Gr.I in the Department need not be doubted. 7. Thus, considering all aspects, we feel that it will be only just and proper to consider a sum of Rs.10,000/- as the amount he will carry home. The deceased was aged 42 years at the time of death. Apart from the same, an additional amount of 30% towards future prospects has to be considered in the light of the decision in **Rajesh v.Rajbir Singh ( 2013 (3) KLT 89 (SC)** Thus, the amount available will be Rs.13,000/-. In this case, the claimants are mother, wife and two minor children. As there are four dependents, only ¼ has to be deducted towards his personal expenses. The multiplier available will be 14. Thus, the amount available on the head of loss of dependency will be Rs.16,38,000/- ( 9750 x 12 x 14). 8. In the light of the dictum laid down by the apex court in **Rajesh v. Rajbir Singh ( 2013 (3) KLT 89 (SC)** it can be seen that the amount awarded under the head of funeral expenses, compensation towards loss of love and affection and loss of consortium are MACA No.1668/2012 & C.O.No.71/2015 7 inadequate. Thus, the claimants are entitled for a sum of Rs.25,000/towards funeral expenses. There are two minor children as well as an aged mother. Thus, the claimants are entitled for a total sum of Rs.1,10,000/- towards loss of love and affection. Towards loss of consortium, a sum of Rs.1,00,000/- is to be awarded. Towards pain and suffering, the claimants are entitled for a sum of Rs.25,000/-. 9. Thus, the compensation is res-assessed as follows : |**_Head of claim_**|**_Amount Awarded_**| |---|---| |Transportation|2000| |Funeral expenses|25000| |Damage to clothings|1000| |Bystander's expenses|1200| |Loss of dependency|1638000| |Pain and suffering|25000| |Loss of love and<br>affection|110000| |Loss of consortium|100000| |Loss of estate|5000| |Total|1907200| 8 MACA No.1668/2012 & C.O.No.71/2015 10. Thus, it can be seen that the petitioners are entitled for a total compensation of Rs.19,07,200/-. The Tribunal has awarded a sum of Rs.24,20,572/-. The said award is hereby set aside/modified and it is held that the claimants who are the respondents in M.A.C.A.No.1668/2012 are entitled for a total compensation of Rs.19,07,200/-. The said amount will carry interest @ 8% per annum from the date of petition till realisation. It is further made clear that from the compensation awarded, the amount granted towards loss of consortium will be given only to the wife of the deceased who is claimant No.1. From the amount awarded towards loss of love and affection i.e. Rs.1,10,000/- , Rs.1,00,000/- shall be shared equally in between the children of the deceased i.e. Rs.50,000/- each to claimants 2 and 3. Rs.10,000/- will be given to the mother of the deceased. The balance amount shall be apportioned in between the claimants in the same ratio as ordered by the Tribunal. The share of claimants 2 and 3 shall be deposited in a Nationalised Bank in their respective names till they became major as ordered by the Tribunal, if they are still minors. MACA No.1668/2012 & C.O.No.71/2015 9 Both the appeal and the cross objection are disposed of as above. There will be no order as costs in both the cases. ## **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv. 25/06/2016