MACA Nos. 1772/2015 & 2681/2015, SATHI w/o LATE MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI; ATHIRA PARAMESWARAN; ADARSH PARAMESWARAN; SREEDEVI ANTHARJANAM v Leela George Koratt House & The Reliance General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** ## **MACA.No.1772 OF 2015(D)** **AGAINST THE AWARD IN OPMV 1209/2010 DATED 13-03-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANTS:** - **1 SATHI W/O.LATE MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI,KIDANGAZHIYATH MANA, PADINJARE CHALKKUDY DESOM,CHALAKKUDY VILLAGE & P.O., MUKUNDAPURAM TALUK,THRISSUR DISTRICT.** - **2 ATHIRA PARAMESWARAN D/O.LATE MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI, -DO-DO-.** - **3 ADARSH PARAMESWARAN S/O.LATE MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI, -DO-DO-.** - **4 SREEDEVI ANTHARJANAN M/O.LATE MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI, -DO-DO-. BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENTS:** - **1 LEELA GEORGE KORATT HOUSE, PUTHANANGADI P.O., KOTTAYAM-679321.** - **2 THE RELIANCE GENERAL INSURANCE COMPANY LTD. 570, RECTIFIER HOUSE, NALGAUM CROSS ROAD, WADALA WEST, MUMBAI-400001.** - **R2 BY ADV. SRI.GEORGE CHERIAN SR. R2 BY ADV. SMT.LATHA SUSAN CHERIAN R2 BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.09.2020, ALONG WITH MACA.2681/2015(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.1772/2015 &2681/2015 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** ## **MACA.No.2681 OF 2015** **AGAINST THE AWARD IN OPMV 1209/2010 DATED 13-03-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT:** **RELIANCE GENERAL INSURANCE CO.LTD.** **MUMBAI, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENTS:** |**1**|**SATHI**| |---|---| ||**WIDOW OF MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI,**| ||**KIDANGAZHIYATH MANA, PADINJARE CHALAKUDY DESOM,**| ||**CHALAKUDY VILLAGE & PO, MUKUNDAPURAM TALUK, THRISSUR**| ||**DISTRICT, PIN-680 307.**| |**2**|**ADRITHA PARAMESWARAN**| ||**D/O.LATE MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI,**| ||**KIDANGAZHIYATH MANA, PADINJARE CHALAKUDY DESOM,**| ||**CHALAKUDY VILLAGE & PO, MUKUNDAPURAM TALUK, THRISSUR**| ||**DISTRICT, PIN-680 307**| |**3**|**ADARSH PARAMESWARAN**| ||**S/O.LATE MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI,**| ||**KIDANGAZHIYATH MANA, PADINJARE CHALAKUDY DESOM,**| ||**CHALAKUDY VILLAGE & PO, MUKUNDAPURAM TALUK, THRISSUR**| ||**DISTRICT, PIN-680 307**| |**4**|**SREEDEVI ANTHARJANAM**| ||**MAHESWARAN @ PARAMESWARAN NAMBOOTHIRI,**| ||**KIDANGAZHIYATH MANA, PADINJARE CHALAKUDY DESOM,**| MACA Nos.1772/2015 &2681/2015 3 **CHALAKUDY VILLAGE & PO, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680 307** **R1 BY ADV. SRI.A.N.SANTHOSH** **R2-4 BY ADV. A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.09.2020, ALONG WITH MACA.1772/2015(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.1772/2015 &2681/2015 4 ## **JUDGMENT** ## MACA No. 1772/2015 and 2681/2015 Dated this the 07[th] day of September, 2020 The appeal is filed by the wife, two children and mother of a deceased. The deceased was traveling in an Autorikshaw when a car hit the Autorikshaw causing grievous injuries to the injured, who died on the very same day that is on 9.8.2012. The appellants are the insurance company and the claimants. The appeal of the insurance company is against the income adopted of 6,000/- without any evidence and the adoption of 15% as future prospects for a person who did not have a regular employment and who has passed 50 years of age. 2. As far as adoption of 15% for future prospects, going by **(** _**National Insurance Co. Ltd. vs.**_ _**Pranay Sethi (2017)16 SCC 680**_ **),** for a 52 year without a regular employment, there could only be granted 10% enhancement. The deceased was asserted to be a MACA Nos.1772/2015 &2681/2015 5 catering contractor and hence it could not be said to be a regular employment. 3. As to the income, the same has to be considered along with the appeal for enhancement filed by the claimants. The claimants asserted that the deceased was a catering contractor having Rs.60,000/- income per month. Immediately it is to be noticed that there was nothing produced to show the income tax paid by the claimant in the years in which he was carrying a catering unit with Rs. 60,000/income per month. The learned counsel for the claimants however relied on the evidence of PW2 to PW6. 4. PW1 is the wife of the deceased who deposed in consonance with the claim. PW2 is the Principal-in-Charge of Kendriya Vidyalaya, Puranattukara. She produced and proved a tax deduction form in Form-16A, as Annexure A14 which shows payment of Rs.1,77,723/- between 01.04.2009 to 31.03.2010 and Rs.82,200/- between 01.04.2010 to MACA Nos.1772/2015 &2681/2015 6 31.05.2010. This indicates payment of Rs.2,60,000/made in the course of an year, by the school itself to the deceased for which income tax was deducted. It also indicates that the payment was to one Thirumeni Caterings, run by the deceased. This evidence remained un-controverted and it is hence established that the deceased was a Catering Contractor. PW3 is the District Secretary of Kerala State Bharath Scouts and Guides, Aluva, PW4 is the District Secretary of Bharath Scouts and Guides, Iringalakkuda and PW5 is the District Secretary and District Commissioner of Bharath Scouts and Guides, Kothamangalam. All the above witnesses deposed to the fact that they have been regularly engaging the deceased for catering services. However, there is no evidence produced as to the payments made to the deceased or the tax deducted. Even then it can be safely assumed that in addition to the income, the deceased received from Kendriya Vidyalaya, Puranattukara, he had other catering contracts also. MACA Nos.1772/2015 &2681/2015 7 5. The learned Counsel for the claimants would place specific reliance on evidence of PW6 and the income certificate produced at Annexure A11. Annexure A11 shows an income of Rs.5lakhs. The income certificate shows that the deceased had an income of Rs.2,64,000/- from head load work and Rs.1,08,000/- from rent. In such circumstances no reliance can be placed on the income certificate. It is also to be noticed that the Village Officer has absolutely no authority to issue such an income certificate which he deposes as PW6 to have been issued on the basis of the professional tax paid as also based on the PAN card produced. The PAN card produced does not indicate the income of the person. No returns have been produced either before the Village Officer or before the Tribunal. Further if professional tax payment receipts were available, it should have been produced before the Tribunal itself. In such circumstances, no reliance can be placed on the deposition of PW6 or the income MACA Nos.1772/2015 &2681/2015 8 certificate produced at Annexure A11. 6. However, from the deposition of Ext.P2 to P5 and also Annexure A14 it can be safely assumed that the deceased had a monthly income of Rs.25000/-. The funeral Expenses and loss of estate have to be reduced as Rs.15000/- each on the basis of the ## decision in _**Sarla Verma and others v. Delhi Transport**_ ## _**Corporation and others [(2010) 2 KLT 802]**_ . Loss of consortium has also to be reduced to Rs.80,000/- being the spousal consortium and filial consortium entitled to the wife and the mother. No compensation for loss of parental consortium is required for the 2[nd] and 3[rd] respondents who are major children. There is also no scope for granting any compensation for loss of love and affection, which is deleted. In such circumstances the following enhancement is granted. |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by the**<br>**Tribunal**<br>`|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**<br>`| |---|---|---|---| |**1**|**Transport to hospital**|**3000**|**3000**| |**2**|**Funeral expenses**|**25000**|**15000**| |**3**|**Damage to clothings**|**500**|**500**| MACA Nos.1772/2015 &2681/2015 9 |**4**|**Medical expenses**|**17300**|**17300**| |---|---|---|---| |**5**|**Loss of estate**|**50000**|**15000**| |**6**|**Loss of consortium**|**100000**|**80000**<br>**(Rs.40000/-**<br>**each to the**<br>**mother and wife**| |**7**|**Loss of love and**<br>**affection**|**50000**|**Deleted**| |**8**|**Loss of dependency**|**683100**|**2722500**<br>**(25000*3/4*110%)*12*11**| ||**Total**|**928900**|**2853300**| 7. Both appeals are partly allowed. Considering the fact that about five years have elapsed from the date of the award, there is no requirement to deposit any amounts in fixed deposit as directed by the Tribunal. The payment as per the award and the modification made herein shall be made within three months with interest as directed by the Tribunal @ 7.5% from the date of application, after deducting the amounts already paid or deposited. The claimants shall produce a copy of a cancelled cheque of the Bank account in a Nationalized Bank in any one of their names, with authorization from others or in their joint/separate names and with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The MACA Nos.1772/2015 &2681/2015 10 Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account/accounts, within three months thereafter failing which, the Tribunal shall proceed with the recovery in accordance with law. The transfer of the award amount shall be made by the Insurance Company after first satisfying the liability to Court Fee payable by reason of the amounts awarded exceeding that claimed in the application; deducting the same from the award. No order as to costs. Jma Sd/- **K.Vinod Chandran, Judge**