MACA No. 2477 of 2013 & MACA No. 1260 of 2014, National Insurance Company Ltd. v. Renu Sebastian @ Renu Thayil and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## `MACA NO. 2477 OF 2013` ``` [AWARD DATED 13.09.2014 IN OP(MV) NO.182/2012 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM] ``` ## `APPELLANT:3RD RESPONDENT IN THE OP` ``` NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM, REPRESENTED BY ITS MANAGER, NATIONAL INSURANCE CO.LTD., KOCHI REGIONAL OFFICE, OMANA BUILDINGS, PADMA JUNCTION, KOCHI-35. ``` ``` BY ADV SRI.A.R.GEORGE ``` ## `RESPONDENTS/CLAIMANTS IN THE OP:` - `1 RENU SEBASTIAN @ RENU THAYIL,FORMERLY RESIDING AT KARIPPAPARAMBIL HOUSE, KANJIRAPPALLY, AND AT PRESENT RESIDING AT AMROY VILLA, SANTA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKADU, THRISSUR DISTRICT, PIN- 680562` - `2 MARIYA THAYIL (MINOR), AMROY VILLA,SANTA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKADU, THRISSUR DISTRICT,PIN- 680562` - `3 JOSEPH THAYIL (MINOR) AMROY VILLA,SANTA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKADU, THRISSUR DISTRICT, PIN- 680562` - `4 MOLLY THAYIL, W/O.LATE JOY THAYYIL,AMROY VILLA,SANTHA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKAD, THRISSUR DISTRICT,` ``` PIN- 680562 (MINOR RESPONDENTS 2 & 3 REPRESENTED BY THEIR MOTHER THE IST RESPONDENT AS NEXT FRIEND) BY ADV FOR R1 TO R3 BY ADV A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2024, ALONG WITH MACA 1260 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2477/2013 & 1260/2014 : 2 : ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## `MACA NO. 1260 OF 2014` ``` AGAINST THE AWARD DATED 13.09.2013 IN OP(MV)NO.182/2012 OF ``` ``` MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM ``` ## `APPELLANTS/PETITIONERS:` - `1 MRS.RENU SEBASTIAN @ RENU THAYIL,FORMERLY RESIDING AT KARIPPAPARAMBIL HOUSE, KANJIRAPPALLY AND AT PRESENT RESIDING AT AMROY VILLA, SANTA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKADU, THRISSUR DISTRICT.` - `2 MARIYA THAYIL (MINOR),BORN ON 23.02.2010, RESIDING AT AMROY VILLA,SANTA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKADU, THRISSUR DISTRICT, REPRESENTED BY MOTHER THE 1ST PETITIONER AS NEXT FRIEND.` - `3 JOSEPH THAYIL (MINOR),BORN ON 09.09.2011, RESIDING AT AMROY VILLA,SANTA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKADU, THRISSUR DISTRICT, REPRESENTED BY MOTHER THE 1ST PETITIONER AS NEXT FRIEND.` ``` BY ADV A.N.SANTHOSH ``` ## `RESPONDENTS/RESPONDENTS:` - `1 JOMY JOSEPH, KAVALAM PUTHUPARAMBIL HOUSE, KAVALA, CHANGANACHERRY, PIN - 686 101.` - `2 K.C.RAJAPPAN, KOCHUPARAMBIL, NEAR CHERUVALLIKKAVU DEVI TEMPLE, PUNCHAVAYAL P.O., VIA MUNDAKKAYAM, PIN - 686 513.` - `3 NATIONAL INSURANCE COMPANY LTD.,REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM, PIN - 686 001.` - `4 MOLLY THAYIL,W/O.LATE JOY THAYIL, RESIDING AT AMROY VILLA,SANTA MARIYA HILLS, VALLACHIRA P.O., PUTHUKKADU, THRISSUR, PIN - 680 562.` ``` BY ADVS. SRI.A.R.GEORGE – R3 SMT.M.S.LETHA SRI.V.SRI NATH SRI.K.R.VINOD – R4 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 30.01.2024, ALONG WITH MACA.2477/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2477/2013 & 1260/2014 : 3 : ## JUDGMENT Both these appeals arise from OP(MV) No.182/2012 on the files of the Motor Accident Claims Tribunal, Kottayam. (The parties in these appeals are hereinafter referred to as per their respective ranks in the claim petition). 2. The said claim petition was submitted by the appellants in MACA No.1260/2014 seeking compensation for the death of one Amruth Thayil due to the injuries sustained in a motor accident that occurred on 29.10.2011. The accident occurred when the deceased was travelling in a car bearing registration No.KL-08/AN 7209, it collided with a bus bearing registration No.KL-5S/9293. The said bus was being driven by the 2nd respondent, owned by the 1st respondent and was insured with the 3rd respondent. The deceased was 33 years old at the time of the accident and was working as the Chief Executive Officer of Santa Maria Academy, Vallachira. The monthly income claimed was Rs.40,000/-. The deceased was the husband of the 1st appellant, the father of the 2nd and 3rd appellants and the son of the 4th appellant. The claim petition was submitted in such circumstances seeking compensation. 3. The 3rd respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy but M.A.C.A. No.2477/2013 & 1260/2014 : 4 : disputed the negligence on the part of the 2nd respondent in driving the bus. According to them, the accident occurred due to the negligence of the driver of the car in which the deceased was travelling. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A11 from the side of the petitioners and no evidence was adduced by the respondents. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2nd respondent and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed at Rs.35,46,000/-, and the said amount was directed to be deposited with interest at the rate of 8.5% per annum from the date of petition till realisation. Challenging the said award, the petitioners filed MACA No.1260/2014 and the 3rd respondent insurer filed MACA No.2477/2013. 6. Heard Sri. A.N. Santhosh, the learned counsel appearing for the appellants in MACA No.1260/2014, Sri. A.R. George, learned counsel appearing for the appellant in M.A.C.A. No. 2477/2013, and Sri.K.R. Vinod, learned counsel appearing for the 4th respondent in M.A.C.A. No.1260/2014 M.A.C.A. No.2477/2013 & 1260/2014 : 5 : 7. In both these appeals, the respective appellants are challenging the quantum of compensation. In M.A.C.A. No.2477/2013, the insurer contends that the amount awarded by the Tribunal is excessive, whereas in M.A.C.A. No.1260/2014, the appellants therein contend that the amount awarded is inadequate and requires enhancement. After carefully going through the contents of the award and the materials placed on record, I find that, in certain heads, the amount awarded by the Tribunal is on the lower side, whereas in some other heads, excess amounts were awarded by the Tribunal. When coming to the question of the quantum fixed by the Tribunal under the head of loss of dependency, the specific contention put forward by the learned counsel for the petitioners is to the effect that the amount is grossly inadequate and the proper monthly income of the deceased was not taken into account by the Tribunal. On carefully going through the records, I find some force in the said contention. 8. The deceased, according to the petitioner was the Chief Executive Officer of an establishment named Santa Maria Academy and the monthly income claimed was Rs.40,000/-. To substantiate the monthly income which he used to get from the said employment, Ext.A4 salary certificate was relied on, which was issued by Thomas Cheriyan Educational Trust, and the signatory was none other than M.A.C.A. No.2477/2013 & 1260/2014 : 6 : the 4th petitioner in the claim petition. The learned counsel for the 3rd respondent insurer raised serious objections as to the acceptability of the Ext.A4 salary certificate, mainly on the ground that the concern in which the deceased was working, was a family institution. It was also pointed out that none of the persons, including the 4th petitioner, cared to mount the box to prove the said document, and in the absence of any supporting evidence, the figures reflected in the said document cannot be acted upon. As rightly pointed out by the learned counsel for the 3rd respondent, the materials would indicate that it was a family concern, and the Ext.A4 certificate, as such, cannot be given much importance while assessing the monthly income of the deceased. However, in this regard, the learned counsel for the appellants points out that, in addition to Ext.A4, the petitioners also relied on Ext.A5 and Ext.A6 income tax verification forms and income tax assessment order respectively, which would indicate that the declared income of the deceased for the financial year 2010-2011 was Rs.3,60,000/. In addition to the same, the learned counsel also placed reliance upon the Annexure A1 document issued by the Income Tax Department showing the gross total income declared by the deceased for the assessment years 2008-09 to 2011-12. The details of the same are as follows: M.A.C.A. No.2477/2013 & 1260/2014 : 7 : |AY|ACK.NO|GROSS TOTAL<br>INCOME(Rs.)|TOTAL TAX PAID (Rs.)| |---|---|---|---| |2008-9|16155|243750|21272| |2009-10|15659|305500|16583| |2010-11|2284|306950|15852| |2011-12|3095697221011|360000|20600| 9. Since Annexure A1 is a public document issued by the competent authority under the Income Tax Department, the said document can be accepted in evidence, and the same is marked as Ext.A12. On going through the contents of Ext.A12, referred to above, it can be seen that the annual income declared for the year 2008-09 was Rs.2,43,750/- and there was a gradual increase in monthly income and ultimately the income for the assessment year 2011-12 reached upto Rs.3,60,000/-. The figures shown in the aforesaid document cannot be ignored as it is an official declaration made before the Income Tax Authorities as to the income of the deceased. Therefore, even if the figures shown in the Ext.A4 salary certificate is not accepted, the monthly income could be fixed on the basis of the figures reflected in the Ext.A12 document. In such circumstances, I am of the view that, as the deceased declared the monthly income for the assessment year 2011-12 as Rs.3,60,000/-, the same can be accepted for the purpose of assessing the compensation in this case. As rightly pointed out by the learned counsel for the 3rd respondent, the Tribunal did not deduct any M.A.C.A. No.2477/2013 & 1260/2014 : 8 : amount towards the income tax while assessing the compensation. In Ext.A12, for the assessment year, an amount of Rs.20,600/- has been deducted towards tax and therefore, the annual income after deducting the tax can be safely fixed as Rs.3,39,400/-. 10. As the deceased was aged 33 years at the time of the accident, an addition of 40% of the income is to be made towards future prospects. In such circumstances, while reassessing the compensation with revised annual income with an addition of 40%, the amount would come to Rs.57,01,920/- [(3,39,400 + 40%) x 16 x ¾]. The amount already awarded by the Tribunal is Rs. 32,40,000/-, and thus, the additional compensation for loss of dependency would come to Rs.24,61,920/-. 11. The learned counsel for the 3rd respondent insurer further pointed out that, on several heads i.e, those heads are funeral expenses, loss of love and affection and loss of estate, the amounts awarded by the tribunal were very high. As far as the compensation for funeral expenses and loss of estate are concerned, the amounts are fixed by the Honourable Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] and the said amount is Rs.15,000/- each. In this case, Rs.25,000/- has been awarded under the case of funeral expenses and for loss of estate, Rs.75,000/- was awarded. Therefore, M.A.C.A. No.2477/2013 & 1260/2014 : 9 : compensation under both these heads has to be revised by fixing the same as Rs.15,000/- each, and it is ordered accordingly. This would result in a deduction of Rs.10,000/- and Rs.60,000/respectively. 12. The next head which requires consideration is the loss of consortium. In the light of Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [2020 (3) KHC 760], all the petitioners in the claim petition being the wife, children and the mother of the deceased are entitled to compensation for loss of consortium @ Rs.40,000/- each. This would result in a total compensation of Rs.1,60,000/-. The Tribunal awarded an amount of Rs.1,00,000/- under the head of loss of consortium and a further sum of Rs.1,00,000/- under the head of loss of love and affection. Since it is held in Satinder Kaur (supra) that when compensation for loss of consortium is awarded, no further amount needs to be granted for loss of love and affection. The amount of Rs.1,00,000/- awarded towards loss of love and affection has to be adjusted against the amount fixed by the Tribunal for loss of consortium. While doing the said exercise, an amount of Rs.40,000/- is found to be in excess and that is ordered to be deducted. Thus, the total additional compensation is fixed as M.A.C.A. No.2477/2013 & 1260/2014 : 10 : Rs.23,51,920/- [24,61,920 – (10,000 + 60,000 + 40,000)]. In the result, both these appeals are disposed of, by reassessing the compensation awarded by the Tribunal and granting an additional amount of Rs.23,51,920/- (Rupees twenty three lakhs fifty one thousand nine hundred and twenty only). The said amount shall be deposited by the 3[rd] respondent Insurance Company with interest @ 8% per annum from the date of petition till realisation within three months from the date of receipt of a copy of this judgment, after adjusting the amounts already deposited by them. As the M.A.C.A. No.1260/2014 was filed with a delay of 114 days, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation.It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the respondents to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. ## ZIYAD RAHMAN A.A. JUDGE ncd/scs M.A.C.A. No.2477/2013 & 1260/2014 : 11 : ## APPENDIX ## MACA No.1260/ 2014 : GOVERNMENT OF INDIA - MINISTRY OF FINANCE - INCOME TAX DEPARTMENT- PROCEEDINGS NO. ITBA/COM/F/17/2021EXHIBIT A12 22/1037274877(1) DATED 26.11.2021 OF CENTRAL PUBLIC INFORMATION OFFICER NCW 17(6), CHENNAI.