MACA Nos. 234 of 2014 and 304 of 2014, United India Insurance Company Ltd v. Priya Das and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **MACA.No.234 OF 2014** **AGAINST THE AWARD IN OPMV 466/2004 DATED 31-07-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** **APPELLANT/S:** **UNITED INDIA INSURANCE COMPANY LIMITED TUTICORIN NOW REPREESENTED BY ITS MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI 11** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/S:** |**1**|**PRIYA DAS**| |---|---| ||**W/O LATE SUNIL NAIR, PRIYA, ELAPPULLY,**| ||**PALAKKAD TALUK 679010**| |**2**|**NIVEDHA MINOR**| ||**D/O LATE SUNIL NAIR, PRIYA, ELAPPULLY,**| ||**PALAKKAD TLAUK, REPRESENTED BY HER MOTHER IST**| ||**RESPONDENT 6079101**| |**3**|**VALSALA NAIR**| ||**W/O SUNDARESWARAN,VASUDARA, KALLEKULANGAR,**| ||**PALAKKAD 678009**| ||**R1 BY ADV. SRI.K.ABDUL JAWAD**| ||**R1 BY ADV. SRI.U.MUHAMMED MUSTHAFA**| ||**R1 BY ADV. SRI.MATHEW A KUZHALANADAN**| ||**R1 BY ADV. SMT.VINEETHA V.KUMAR**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2020, ALONG WITH MACA.304/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.234/2014 & MACA.304/2014 ..2.. **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** **MACA.No.304 OF 2014** **AGAINST THE AWARD IN OPMV 466/2004 DATED 31-07-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/S:** **1 PRIYA DAS AGED 37 YEARS W/O.LATE SUNIL NAIR, RESIDING AT 'PRIYA ',ELAPPULLY,PALAKKAD TALUK, PALAKKAD DISTRICT** - **2 NIVEDHA AGED 13 YEARS** **D/O.LATE SUNIL NAIR, RESIDING AT 'PRIYA' ELAPPULLY,PALAKKAD TALUK, PALAKKAD DISTRICT (MINOR REPRESENTED BY HER MOTHER AND GUARDIAN , PRIYA DAS THE IST APPELLANT)** **BY ADVS. SRI.ABDUL JAWAD K. SRI.U.MUHAMMED MUSTHAFA SRI.MATHEW A KUZHALANADAN** ## **RESPONDENT/S:** **1 THE UNITED INDIA INSURACNE CO LTD 3E,BALAVINAYAGAR KOIL STREET, TUTICORIN 628 002, REPRESENTED BY ITS BRANCH MANAGER(INSURER OF THE TANKER LORRY BEARING REG.NO.TN 69/D 1233) POLICY NO. 090102/31/03/01861, PERIOD OF POLICY FROM 00:00 O' CLOCK ON 4/12/2013 TO MIDNIGHT TO 16/10/2004** MACA.234/2014 & MACA.304/2014 ..3.. **2 VALSALA NAIR AGED 67 YEARS W/O.SUNDARESWARAN NAIR , RESIDING AT VASUDHARA,KALLEKULANGARA, PALAKKAD 678 009, (MOTHER AND ONE OF LEGAL HEIRS OF THE DECEASED)** **R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2020, ALONG WITH MACA.234/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.234/2014 & MACA.304/2014 ..4.. ## **COMMON JUDGMENT** ## **[ MACA.234/2014 & MACA.304/2014 ] Dated this the 25[th] day of September 2020** The appellants in MACA No.304 of 2014 were the petitioners in O.P.(M.V.) No.466 of 2004 of the Motor Accidents Claims Tribunal, Palakkad. The appellant in MACA No.234 of 2014 was the 3[rd] respondent — Insurance Company in the claim petition. The appellants in both the appeals are aggrieved by the award dated 31.07.2013 passed by the Tribunal. As the appeals arise out of the same award, passed in connection with the compensation granted on account of the death of late Sunil Nair in an accident on 04.12.2003, they were consolidated and jointly heard and are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, claiming compensation on account of the death of late Sunil Nair, husband of the 1[st] petitioner and the father of the 2[nd] MACA.234/2014 & MACA.304/2014 **==> picture [17 x 8] intentionally omitted <==** petitioner. 3. The case of the petitioners in the claim petition, in brief, is that, on 04.12.2003, while Sunil Nair was riding a motorcycle bearing Regn.No.KL-09/G-2932, his vehicle was hit by a lorry bearing Regn. No.TN-69/D-1233, driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent, near Government Victoria College, Palakkad. Sunil Nair died instantaneously in the accident. The 4[th] respondent is the mother of the deceased. The deceased was aged 36 years. He was a marine engineer by profession and was employed on contract basis in the Merchant Navy. He was drawing a monthly salary of Rs.60,000/-. Accordingly, the petitioners sought a compensation of Rs.1,00,00,000/-, under the various heads. 4. The respondents 1 and 2 were set ex parte. The 3[rd] respondent filed a written statement, inter alia, contending that amounts claimed in the claim petition were excessive. The petitioners have no distinct proof to prove that the deceased was drawing a salary of Rs.60,000/- per month. To the knowledge of the 3[rd] respondent, the MACA.234/2014 & MACA.304/2014 **==> picture [18 x 8] intentionally omitted <==** deceased was not having any permanent income at the time of the accident. His employment was purely temporary in nature. Being a seafarer, his engagement in ships has been on contractual basis for a period of 15 days to 3 months. Hence, the claim petition may be dismissed. However, the 3[rd] respondent admitted the insurance policy. 5. A witness was examined on behalf of the petitioners as PW1 and Exhibits A-1 to A-10 were marked in evidence. The 3[rd] respondent did not let in any evidence. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by holding that the petitioners and the 4[th] respondent are entitled to compensation @ Rs.17,75,000/- with interest at the rate of 9% per annum from the date of petition till the date of realization. The 3[rd] respondent was directed to deposit the compensation amount. 7. The comparative table showing the compensation that was claimed by the petitioners and that was awarded by the Tribunal is as follows:- MACA.234/2014 & MACA.304/2014 ..7.. |Sl.<br>No.|Head under which<br>compensation is claimed|Amount<br>claimed (in<br>Rupees)|Amount<br>Allowed<br>(in Rupees)| |---|---|---|---| |1|Damage to clothingetc|25,000|Nil| |2|Pain and suffering|60,000|Nil| |3|Loss of love and affection|Nil|25,000| |4|Loss of consortium|Nil|1,00,000| |5|Loss of estate|65,00,000|5,000| |6|Loss of dependency/<br>economic benefits/<br>consortium|34,00,000|16,20,000| |7|Funeral expenses|15,000|25,000| ||Total amount|1,00,00,000|17,75,000/-| 8. The 3[rd] respondent — the insurance company being aggrieved by the compensation awarded by the Tribunal under the various heads mentioned above and the petitioners being dissatisfied with the quantum of compensation awarded, have preferred the appeals. 9. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the appellant/3[rd] respondent. 10. The learned counsel for the respective parties submitted that they were confining their contentions in the appeals to only the quantum of compensation awarded by the Tribunal. Therefore, the only question to be considered is whether the quantum of compensation MACA.234/2014 & MACA.304/2014 **==> picture [18 x 8] intentionally omitted <==** awarded by the Tribunal is reasonable and just? 11. The learned counsel for the 3[rd] respondent argued that going by the materials on record, it is seen that even though the petitioners claimed that the deceased was a marine engineer, there is no material to substantiate their claim. On a perusal of Exhibit A-7 certificate issued by the Republic of Panama, it is seen that the certificate had a validity of only three months, i.e., 03.05.2002 to 03.08.2002. Similarly, the wage slips Exhibits A-8 and A-9 were of the year 1999 and the same were also not attested by the India Embassy as enjoined in law. Likewise, as the deceased was a seafarer, he could not work throughout the year. The learned counsel relied on the decision of a Division Bench of the Court in **Valsamma v. Binu Jose** [2014 (1) KLT 10] to drive home his contention that, when a person is not permanently employed in a foreign country, Indian standards have to be applied to assess his income. Therefore, he argued that the income of the deceased fixed by the Tribunal at MACA.234/2014 & MACA.304/2014 **==> picture [18 x 8] intentionally omitted <==** Rs.10,000/- per month was excessive and on the higher side. 12. The learned counsel appearing for the petitioners, on the contrary, argued that Exhibit A-6 certificate, issued by the Government of India, proves that the deceased was a qualified marine engineer by profession from 09.09.1996. The entry on page '5' of Exhibit A-10 passport establishes that the deceased was a contract seaman in the vessel 'MV Pacific Islander' as on 15.06.2002. He relied on the decision of this Court in **Satheesan v. Musthafa** [2018 (4) KLT 337] and contended that once the documents were marked in evidence without any objection, the insurance company is precluded from subsequently raising any objection regarding the said documents. According to him, as Exhibits A-6 to A-10 were marked in evidence, it is too late in the day for the insurance company to now contend that, as the documents are not authenticated, they cannot be accepted to prove the income of the deceased. He MACA.234/2014 & MACA.304/2014 **==> picture [22 x 6] intentionally omitted <==** argued that the income of deceased has to be fixed at Rs.60,000/- per month, as claimed in the claim petition and reflected in Exhibits A-8 and A-9 wage account slips. Therefore, the appeal filed by the petitioners may be allowed and the appeal filed by the 3[rd] respondent may be dismissed. 13. The Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] has held that 'just compensation' is 'adequate compensation', which is fair and equitable depending on the facts and circumstances of the case, to make good the loss suffered as a result of a wrong, as far as money can do so, by applying the well settled principles relating to the award of compensation. 14. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on MACA.234/2014 & MACA.304/2014 ..11.. the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 15. In a recent decision, a three Judge Bench of the Hon'ble Supreme Court in **Pappu Deo Yadav Vs. Naresh Kumar and others** (Civil Appeal No.2567 of 2020), relying on the decision in **Govind Yadav v. New India Insurance Company Ltd** [(2011) 10 SCC 683] has held that the principle consistently followed by the Supreme Court in assessing motor vehicle compensation is to place the victim in as near a position as he was before the accident, with the other compensatory directions for the loss of amenities and other claims, and that 'just compensation' should include all elements that would go to place the victim as a near position as he was before the occurrence of the accident. It is also emphasized that the Courts should not adopt a MACA.234/2014 & MACA.304/2014 **==> picture [22 x 6] intentionally omitted <==** stereotypical or myopic approach, but instead hear the matter taking into account the realities of life both in assessment of the extent of disabilities and compensation under the various heads. 16. Keeping in mind the law laid down in the aforecited precedents, I proceed to decide these appeals. 17. Undisputedly Exhibit A-6 — certificate of competency was issued by the Government of India, whereby the deceased is a qualified a marine engineer – Class IV on 09.09.1996. The endorsement on Exhibit A-10 passport of the deceased substantiates that he was employed as a 'contract seaman' on the vessel 'MV Pacific Island'. Therefore, there is no doubt that the deceased was employed as a 'contract seaman' on the basis of his qualification as a marine engineer. Exhibit A-7 certificate issued by the Republic of Panama proves that the deceased was licensed to work as a III[rd ] Engineer, for the period from 03.05.2002 to 03.08.2002. Although Exhibits A-8 and A-9 wage account slips for the months of May, MACA.234/2014 & MACA.304/2014 **==> picture [22 x 8] intentionally omitted <==** 1999 and April, 1999 respectively, were marked in evidence, the Tribunal rightly refused to accept the salary reflected in the documents because they were not authenticated by the Indian Embassy/Consulate, as laid down in paragraph '9' of the decision of the of the Hon'ble Supreme Court in **United India Assurance Company Ltd. Satinderr Kaur @ Satwinder Kaur** [2020(3) KLT 760]. 18. This Court in **National Insurance Company Ltd. v. Ramla and others** [2016 (4) KHC 891] has also held that a salary certificate issued by an employer abroad has to be authenticated as provided under Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. 19. Admittedly, Exhibits A-8 and A-9 are not authenticated as per the ratio in above cited decisions. Therefore, even though the documents were marked in evidence, the salary stated in the documents per se cannot be taken on its face value, for the want of MACA.234/2014 & MACA.304/2014 **==> picture [22 x 8] intentionally omitted <==** authentication. Moreover, there is no material to establish that the deceased had permanent employment. The endorsement on Exhibit A-10 passport shows that the deceased was employed as a 'contract seaman'. Hence, we would have to follow the ratio laid down by the Division Bench of this Court in **Valsamma** (supra) that is the context of Indian standards have to be applied while assessing income of a person who is not permanently employed in a foreign country. 20. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] followed by **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735], has fixed the notional income of a coolie in the year 2004 @ Rs.4,500/- per month and that of a vegetable merchant in the year 2007 @ 6,500/- per month, respectively. 21. Considering that the deceased was a qualified marine engineer as per Exhibit A-6 as on 09.09.1996, and MACA.234/2014 & MACA.304/2014 **==> picture [22 x 8] intentionally omitted <==** that he was employed in a foreign vessel as a contract seaman as reflected in Exhibits A-7 to A-10 documents, I am of the considered opinion that the income fixed by the Tribunal at Rs.10,000/- per month is too low. Exhibits A-8 and A-9 show that the deceased was earning a net salary of 1475 US dollars per month, which at the exchange rate in 2003, when converted to Indian Rupees amounts to Rs.63,420/-. 22. It is common knowledge that a contract seaman will not secure employment all throughout the year. Normally, their contracts are for '3' to '6' months in a year. Nevertheless, a marine engineer is an international qualified, which enables a seaman to work on any foreign vessel. 23. Going by Exhibit A-7, it is seen that the deceased had 7 years work experience. I feel that the amount shown in Exhibits A-8 and A-9 wage slips was the general bench mark for seamen across the world. It is trite law that Court which fixing the notional income has MACA.234/2014 & MACA.304/2014 **==> picture [22 x 8] intentionally omitted <==** to evaluate the various parameters of the deceased/victim, and do some guess work. According to me, by any stretch of imagination the deceased would have earned a monthly salary of Rs.50,000/-. However, considering that the deceased was working on contract basis, it is to be presumed that he had employment only for a period '6' months in an year. Therefore, I fix the annual income of the deceased at Rs.3,00,000/- (i.e. Rs.25,000/- per month). After the income tax deductions and statutory levies, it can be safely concluded that the deceased had a monthly income of Rs.20,000/- instead of Rs.10,000/- fixed by the Tribunal. ## **Multiplier** 24. As the deceased was 36 at the time of accident/death, the multiplier to be adopted is 15 as per the ratio in **Sarla Verma and Pranay Sethi** (supra). ## **Future Prospects** 25. Following the principles laid down in **Pranay Sethi Sarla Verma** and **Reshma Kumari v. Madan** MACA.234/2014 & MACA.304/2014 **==> picture [21 x 8] intentionally omitted <==** **Mohan** [(2013) 9 SCC 65] and considering that the deceased was not having any permanent employment, the future prospects has to be fixed at 40% . 26. The Tribunal in the impugned award had calculated the future prospects at 50%, which is against the ratio in with the decisions cited above. Therefore, I modify and re-fix the future prospects of the deceased at 40%. ## **Personal and Living Expenses** 27. In **Sarla Verma** (supra), it has been held that the personal and living expenses of the deceased has to be deducted from his monthly income, to arrive at the contribution to the dependents. In the case on hand, the petitioners and the 4[th] respondent are the wife, daughter and mother of the deceased, respectively. Therefore, onethird of the income of the deceased has to be deducted. ## **Loss of dependency** 28. On a perusal of the impugned award, it is seen that the Tribunal awarded an amount of Rs.16,20,000/- MACA.234/2014 & MACA.304/2014 **==> picture [22 x 8] intentionally omitted <==** towards loss of dependency/loss of consortium. Considering that the deceased was aged 36, his income has been fixed at Rs.20,000/-, adding 40% towards future prospects and applying 15 as the multiplier and after deducting 1/3 towards personal and living expenses, the compensation under loss of dependency is modified and re-fixed at Rs.33,60,000/-, i.e. an additional amount of Rs. 17,40,000/- under the said head of claim. ## **Funeral Expenses, Loss of Consortium and Loss of Love and affection** 29. The Tribunal in the impugned award has awarded an amount of Rs.25,000/- towards funeral expenses. In light of the decisions in **Pranay Sethi and Sarla Verma** (supra), the maximum amount that can be awarded towards funeral expenses is Rs.15,000/-. Therefore, I reduce the compensation under the said head of claim from Rs.25,000 to Rs.15,000/-. Similarly, it is seen that the Tribunal has awarded only Rs.5,000/towards loss of estate. It is settled that an amount of MACA.234/2014 & MACA.304/2014 **==> picture [22 x 8] intentionally omitted <==** Rs.15,000/- has to be awarded towards loss of estate. Accordingly, the I enhance the compensation under the said head to Rs.15,000/-. The Tribunal has only awarded an amount of Rs.1,00,000/- towards loss of consortium. It is settled in **Pranay Sethi and Sarla Verma** (supra) that an amount of Rs.40,000/- has to be awarded to each dependent. Accordingly, the petitioners and the 4[th] respondent are entitled to spousal consortium, parental consortium and filial consortium @ Rs.40,000/- each. Accordingly, I enhance the amount under the said head of claim from Rs.1,00,000/- to Rs.1,20,000/-. The Tribunal ― has under the head loss of love and affection awarded an amount of Rs.25,000/-. In view of granting of compensation under the head loss of consortium, I set aside the amount of Rs.25,000/- awarded under the said head. 30. Therefore, on an overall re-appreciation of the pleadings and materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited MACA.234/2014 & MACA.304/2014 ..20.. precedents, I am of the considered opinion that the petitioners and the 4[th] respondent are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No.|Head under which<br>compensation is<br>claimed|Amount<br>claimed (in<br>Rupees)|Amount<br>Allowed<br>(in Rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Damage to<br>clothing etc|25,000|Nil|Nil| |2|Pain and suffering|60,000|Nil|Nil| |3|Loss of love and<br>affection|Nil|25,000|Nil| |4|Loss of consortium|Nil|1,00,000|1,20,000| |5|Loss of estate|65,00,000|5,000|15,000| |6|Loss of<br>dependency/<br>economic benefits/<br>consortium|34,00,000|16,20,000|3,360,000| |7|Funeral expenses|15,000|25,000|15,000| ||Total amount|1,00,00,000/-|17,75,000/-|35,10,000/-| ||||9%<br>p.a.interest<br>from the<br>date of<br>petition|9%<br>p.a.interest<br>from the date<br>of petition| In the result, M.A.C.A. Nos.234 of 2014 and 304 of 2014 are disposed of by granting the appellants and the 2[nd] respondent in M.A.C.A. No.304 of 2014/petitioners and the 4[th] respondent in the claim petition an enhanced MACA.234/2014 & MACA.304/2014 **==> picture [22 x 6] intentionally omitted <==** compensation of Rs.17,35,000/- (Rupees Seventeen Lakh Thirty Five Thousand only) with interest at the rate of 9% per annum from the date of petition till date of realisation and proportionate costs. The respondent in M.A.C.A. No.304 of 2104/the 3[rd] respondent in the claim petition shall satisfy the additional compensation allowed in this appeal with interest and proportionate costs by depositing the above amounts before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any of the appellants towards balance court fee and legal benefit fund. The Tribunal shall disburse the additional compensation to the petitioners and the 4[th] respondent, in accordance with law. Sd/- **C.S.DIAS JUDGE** kkj