MACA No. 3165 of 2014

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 MACA NO. 3165 OF 2014** **AGAINST THE AWARD DATED 25.07.2014 IN OPMV 928/2007 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANTS/PETITIONERS:** 1 JEETHU .L D/O.JAYACHANDRAN PILLAI, KOCHAYYATH VEEDU, KADATHOOR, K.S.PURAM VILLAGE, KARUNAGAPALLY, KOLLAM DISTRICT. 2 ANU.L.JAYAN (MINOR) AGED 15 YEARS D/O.JAYACHANDRAN PILLAI, KOCHAYYATH VEEDU, KADATHOOR, K.S.PURAM VILLAGE, KARUNAGAPALLY, KOLLAM DISTRICT. 3 GANGADHARAN PILLAI S/O.GOPINATHAN PILLAI, KOCHAYYATH VEEDU, KADATHOOR, K.S.PURAM VILLAGE, KARUNAGAPALLY, KOLLAM DISTRICT. (3RD APPELLANT IS THE GRANDFATHER OF APPELLANTS 1 AND 2. ON BEHALF OF APPELLANTS 1 AND 2, WHO WERE MINORS, 3RD APPELLANT FILED ORIGINAL PETITION BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL. NOW 1ST APPELLANT ATTAINED MAJORITY. SO 2ND APPELLANT ALONE IS REPRESENTED BY THE 3RD APPELLANT IN THIS APPEAL). BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENTS/RESPONDENTS:** 1 C.HARIDAS S/O.CHELLAPPAN, HARISREE HOUSE, PAYIKUZHI OACHIRA P.O., KARUNAGAPALLY, KOLLAM DISTRICT, PIN 690526. M.A.C.A. No. 3165 of 2014 2 2 ABHILASH S/O.SIVAMOORTHY, RAMASWAMI STREET, SAI DAPT CHANNAI, NOW RESIDING AT PUTHUSSERI VEEDU, PAYIKUZHI, OACHIRA P.O., KARUNAGAPALLY, KOLLAM DISTRICT, PIN 690526. 3 THE ORIENTAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS BRANCH MANAGER, KOLLAM BRANCH, KOLLAM, PIN 691001. BY ADVS. SRI.GEORGE CHERIAN SR. SMT.K.S.SANTHI, FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.10.2021, THE COURT ON 01.11.2021 DELIVERED THE FOLLOWING: M.A.C.A. No. 3165 of 2014 3 ## **T.R. RAVI, J.** ## **--------------------------------------------** M.A.C.A. No. 3165 of 2014 -------------------------------------------Dated this the 1[st] day of November, 2021 ## **JUDGMENT** The appellants 1 and 2 are daughters of deceased Jayachandran Pillai, who died in a motor vehicle accident on 10.12.2006. The mother of appellants 1 and 2 had died three months before the death of late Jayachandran Pillai. Since the appellants were minors at the time of the death, the 3[rd] appellantmaternal grandfather had preferred the claim application before the Tribunal on behalf of appellants 1 and 2 seeking compensation. 2. On 10.12.2006, a car driven by the 2[nd] respondent in a rash and negligent manner hit against the motorcycle in which the deceased was travelling. The deceased was 44 years at the time of the accident and was working as a Crane Operator abroad. It was contended that the deceased was contributing ₹25,000/towards family every month. The appellants had produced Ext.A7 series service certificates issued by different employers of the deceased and Ext.A8, the copy of the VISA, which proves the fact that he was working abroad. The Tribunal in the award observed M.A.C.A. No. 3165 of 2014 4 that there is no proof of occupation and income of the deceased and the monthly notional income is hence assessed at 2,500/-.₹ The compensation under the head loss of dependency is based on the said notional income. A sum of 4,11,556/- was awarded as₹ compensation by the Tribunal. Aggrieved by the award, the appellants have preferred this appeal, seeking enhancement of the compensation awarded. 3. Heard Sri.Anchal C.Vijayan, learned counsel for the appellants and Smt.K.S.Santhi, learned counsel for the 3[rd] respondent. 4. On 04.08.2015, a Division Bench of this Court heard the case for some time and thereafter gave time to the appellants to produce Bank accounts details maintained by the deceased in order to show that the deceased was earning much more than ₹2,500/- per month fixed by the Tribunal. The appellants have thereafter filed I.A.No.3979/2015 producing the statement of accounts relating to the account maintained by the deceased in the Federal Bank and the account maintained by the wife of the deceased in Federal Bank. In the statement of accounts relating to the deceased the address is shown to be in Doha Qatar and it is an NRE-SB account. It is seen that the statement relates to the M.A.C.A. No. 3165 of 2014 5 period from 2004 to 2007 and it is seen that a sum of 93,245/-₹ was deposited between 06.07.2005 and 16.02.2006. In the account relating to the mother of the appellants 1 and 2 it is seen that a sum of 2,87,133/- was deposited between 10.08.2004 and₹ 16.06.2006. It thus appears that a sum of 3,80,378/- has been₹ deposited in the Bank account during the period of 22 months, which averages to more than Rs.17,000/- per month. 5. The learned counsel for the appellants submitted that the Tribunal went wrong in fixing the notional income of the deceased at 2,500/- on a finding that there was no evidence. It₹ is pointed out that Ext.A7 series will show that the deceased was working as a Crane Operator between 14.06.1989 to 24.01.1994 with Western India Enterprises Limited, New Delhi. It can be seen that the deceased was working from the year 2000 to June 2006 in Qatar, Dubai and Sultanate of Oman. The service certificate issued by the employer of Qatar shows that he was drawing basic salary of 1485 Qatari Riyal during 2000-2002. During 2002-2003, it is seen that the deceased was being paid the basic salary of 1600 Dirhams (Dhs) per month and it is also seen that during 2004-2006 the deceased was being paid 167 Omani Riyal per month. There is no contra evidence regarding these documents. M.A.C.A. No. 3165 of 2014 6 The currencies like Qatari Riyal, Dirhams and Omani Riyal when converted to Indian Rupees during the said periods show that the basic salary shown in Ext.P7 series will be more than 20,000/-₹ per month. The amount claimed in the claim petition was ₹20,000/- . 6. The learned counsel for the respondent insurer fairly conceded that fixing of ₹2,500/- as monthly income was not proper in the light of the evidence on record and necessary changes may have to be made with regard to the compensation payable under the head loss of dependency. 7. In the light of Exts.A7 and A8 and Annexures A & B produced in this appeal, I am of the opinion that it would be just and proper to fix the monthly income of the deceased at ₹17,000/-. It is well settled that the just compensation payable in the case of a motor vehicle accident is to be arrived at keeping in mind the purpose of restoring the parties to their original position to the extent possible. (See **ICICI Lombard General Insurance Co. Ltd. (M/s.) V. Amith Varghese (Minor) (2017 (2) KHC 199)** . 8. Learned counsel for the insurer submitted that the Tribunal has wrongly granted 25,000/- towards funeral expenses₹ M.A.C.A. No. 3165 of 2014 7 and 10,000/- has to be deducted under the said head. It is also₹ submitted that a sum of 5,000/- was awarded towards pain and₹ sufferings, which could not have been granted to the legal representatives. Another contention is that a sum of 1,00,000/-₹ has been awarded towards loss of love and affection and the appellants 1 and 2 can together be granted only ₹80,000/towards loss of consortium. It is hence submitted that 20,000/-₹ has been granted in excess under the said head. I find considerable force in the above submissions. A sum of Rs.20,000/is liable to be reduced. At the same time, it is also noticed that the Tribunal has not granted any amount towards loss of estate, which ought to have been granted at 15,000/-. T₹ hus an amount of Rs.15,000/- is granted as compensation under the head loss of estate, which will get adjusted to the deduction of 10,000/- from₹ the funeral expenses and Rs.5,000/- from pain and suffering. Computing the compensation towards loss of dependency on the basis of a monthly income of 17,000/-₹ the compensation payable under the head will come to 19,04,000/- (17000x12x14x2/3).₹ After deducting the sum of 2,80,056/- awarded by the Tribunal,₹ the appellants will be entitled to an additional compensation of ₹16,23,944/-. It is well settled that there is no restriction in M.A.C.A. No. 3165 of 2014 8 awarding a compensation more than the amount claimed in the claim petition. **[** See **Nagappa v. Gurudayal Singh [2003(1)KLT 115(SC)]** . 9. In the result, the appeal is allowed. The appellants are awarded an additional compensation of **₹16,03,944/- (Rupees Sixteen Lakhs Three Thousand Nine Hundred and Forty Four only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (13.07.2007) till the date of realisation, with proportionate costs. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** Pn M.A.C.A. No. 3165 of 2014 9 ## APPENDIX ## APPELLANT'S ANNEXURES: ANEXURE A: TRUE COPY OF THE STATEMENT OF ACCOUNTS IN RESPECT OF ACCOUNT No.13272 MAINTAINED BY JAYACHANDRAN PILLAI ANNEXURE B: TRUE COPY OF STATEMENT OF ACCOUNTS IN RESPECT OF ACCOUNT No.27520 MAINTAINED BY LATHA JAYAN