MACA NO. 363 OF 2018

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 363 OF 2018`** ``` AGAINST THE AWARD DATED 08.06.2017 IN OP(MV) 1184/2016 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA`** ## **`APPELLANT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE COMPANY LIMITED ALAPPUZHA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1AFSATH W/O. MUHAMMED ASHRAF, 'SULTHANAS',MANNA, TALIPARAMBA P.O., PIN-670 141. 2ASREENA SULTHANA D/O. MUHAMMED ASHRAF, 'SULTHANAS',MANNA, TALIPARAMBA P.O., PIN-670 141 3ASHREEFA SULTHANA D/O. MUHAMMED ASHRAF, 'SULTHANAS',MANNA, TALIPARAMBA P.O., PIN-670 141 4ASHBEENA SULTHANA D/O. MUHAMMED ASHRAF, 'SULTHANAS',MANNA, TALIPARAMBA P.O., PIN-670 141 5ASTHAB HUSSAIN S/O. MUHAMMED ASHRAF, 'SULTHANAS',MANNA, TALIPARAMBA P.O., PIN-670 141 ``` ``` BY ADV SRI.T.V.JAYAKUMAR NAMBOODIRI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 363 OF 2018 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the 3[rd] respondent in O.P.(M.V.) No.1184/2016 on the files of the Motor Accident Claims Tribunal, Taliparamba. The said claim petition was submitted by the respondents 1 to 5 herein seeking compensation for the death of one Muhammed Ashraf due to the injuries sustained in a motor accident that occurred on 03.06.2015. 2. The accident occurred when the scooter ridden by him was hit by a lorry bearing Registration No.KL 04 AF 9220 driven by the 1[st] respondent in the claim petition. The said vehicle was owned by the 2[nd] respondent in the claim petition and it was insured with the appellant herein. According to the claimants, the deceased was a Unani Doctor with a monthly income of Rs.50,000/- and was aged 62 years at the time of the accident. The claimants were the wife and the children of the deceased. 3. The appellant/3[rd] respondent alone contested the matter by filing a written statement, wherein they accepted ``` MACA NO. 363 OF 2018 ``` ``` 3 ``` the coverage of insurance policy, but disputed the liability on various grounds. The negligence as well the quantum of compensation were also disputed by them. 4. After the trial, the Tribunal came to the conclusion that the accident occurred due the negligence on the part of the driver of the lorry and being the insurer, the appellant herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.28,75,000/- and the said amount was directed to be deposited with interest @ 6% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant challenging the quantum of compensation. 5. Heard Sri.Mathews Jacob, learned senior counsel appearing for the appellant and Sri.T.V.Jayakumar Namboodiri, learned counsel appearing for the respondents. 6. The specific contention put forward by the learned counsel for the appellant is that, the quantum of compensation awarded by the Tribunal is highly exorbitant. It ``` MACA NO. 363 OF 2018 ``` ``` 4 ``` was pointed out that the Tribunal accepted the monthly income of the deceased as Rs.40,000/- without any evidence. On the other hand, the learned counsel appearing for the claimants would oppose the said contention by pointing out that, there are ample materials justifying the monthly income taken by the Tribunal. 7. I have carefully gone through the records. The Tribunal took the monthly income of the deceased as Rs.40,000/-, for assessing the compensation. To substantiate the monthly income and the employment, the claimants produced Ext.A10 salary certificate and the person who issued the said salary was examined as PW1. However, crucial aspect to be noticed is that, even though PW1 stated in his deposition that the deceased was being paid an amount of Rs.40,000/- as the monthly salary, he conceded that he was not maintaining any records showing the disbursement of such salary. Even the documents showing that the deceased was being employed in his establishment were also not ``` MACA NO. 363 OF 2018 ``` ``` 5 ``` produced. Further, the materials indicating that the clinic was being run by PW1 was also not produced. Another aspect to be noticed is that, in the claim petition even though the profession of the deceased was mentioned as Unani Doctor, the name of the employer was not shown in the claim petition, whereas the deposition of PW1 would indicate that the deceased was working with him for the past three years. Thus, when all the aforesaid aspects are taken into consideration the evidence adduced by the claimants, in the form of Ext.A10 salary certificate and the PW1 does not appear to be convincing. Therefore, the monthly income as claimed in the salary certificate as such cannot be accepted. 8. Then the next question is what could be the reasonable monthly income that can be taken. To substantiate the educational and professional qualification of the deceased, the claimants have produced Exts.A3 to A8. Ext.A4 is the Certificate of Registration, issued by the State Council of Unani Medicine, West Bengal, Calcutta. Ext.A5 is ``` MACA NO. 363 OF 2018 ``` ``` 6 ``` the identity card issued by the State Council of Unani Medicine. Ext.A7 is the Certificate of participation of Pranic Healing Course. The aforesaid documents would indicate that he was indeed practicing as a Unani Doctor. He was aged 62 years as well. Considering the aforesaid aspects, I am of the view that, the monthly income of Rs.30,000/- can be accepted. However, when monthly income of Rs.30,000/- is taken, he would come within the zone of taxation under the provisions of Income Tax Act and necessary deduction towards the tax is to be made. As per income tax slab prevailing for the relevant year, there was no tax for the income upto Rs 2,00,000/- and for the income above Rs 2,00,000/- and upoto Rs 5,00,000/- rate of tax was 10%. Thus, the tax payable on the monthly income (annual income Rs 3,60,000/-) would come to Rs 16,000/- per year. While making such an assessment, the actual annual income after tax would come to Rs 3,44,000/-. Thus, the compensation payable under the head of loss of dependency would come to ``` MACA NO. 363 OF 2018 ``` ``` 7 ``` Rs 18,06,000/- ( 344000 x 7 x ¾). The Tribunal awarded an amount of Rs 25,20,000/- under this head and thus the excess compensation would come to Rs 7,14,000/- (2520000-180600). 9. When moving on to the other heads, it can be seen that, the Tribunal awarded an amount of Rs.25,000/- towards funeral expenses whereas the actual amount should have been Rs.15,000/-. Therefore, Rs.10,000/- is to be deducted. Similarly, the amount awarded by the Tribunal towards loss of estate is Rs.2,00,000/- whereas the actual amount should be Rs.15,000/- as per **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Thus, Rs.1,85,000/- is to be deducted. However, as compensation for loss of consortium the amount awarded by the Tribunal is Rs.1,00,000/- whereas the actual entitlement of the claimants, being the wife and children are Rs.2,00,000/- which is @ Rs.40,000/- each/-. Therefore, a further sum of Rs.1,00,000/is to be granted. However, at the same time, as rightly ``` MACA NO. 363 OF 2018 ``` ``` 8 ``` pointed out by the learned counsel appellant, Rs.25,000/granted by the Tribunal under the head of loss of love and affection has to be deducted, in view of the observations made by the honourable Supreme in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [2020 (3) KHC 760]. Thus, while reassessing the compensation the excess compensation awarded by the Tribunal is determined as Rs 8,34,000/- [(714000 + 185000 + 10000 + 25000) – 100000] ( Rupees eight lakhs thirty four thousand only). Thus, the total compensation receivable by the appellants is re-assessed as Rs 20,41,000/- ( 2875000834000) In the light of the aforesaid observations and findings, this appeal is allowed, and the award dated 08.06.2017 in O.P.(M.V.) 1184/2016 passed by the Motor Accident Claims Tribunal, Taliparamba is hereby modified by refixing the quantum of compensation as Rs.20,41,000/- (Rupees twenty lakhs forty-one thousand only). The said amount shall be ``` MACA NO. 363 OF 2018 ``` ``` 9 ``` deposited by the appellant along with interest at the rate of 7.5% per annum from the date of petition till realization, with proportionate costs within a period of three months from the date of receipt of the copy of the judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs