MACA Nos. 2473/2014 & 3523/2015 (National Insurance Co. Ltd. v. Baburam Sharma and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** ## **MACA.No. 2473 of 2014** **AGAINST THE JUDGMENT AND AWARD IN OPMV 1849/2012 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 26-05-2014** ## **APPELLANT/S:** **THE NATIONAL INSURANCE CO. LTD. ERNAKULAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI** ## **RESPONDENT/S:** |**1**|**BABURAM SHARMA**| |---|---| ||**S/O.MUNIRAM SHARMA, MAJAHUWAMEER P.O., BHADI**| ||**BHUJURG VILLAGE, BASTI DISTRICT, UTTER**| ||**PRADESH, PIN-272 002.**| |**2**|**MORATHI DEVI**| ||**W/O.MUNIRAM SHARMA,MAJAHUWAMEER P.O., BHADI**| ||**BHUJURG VILLAGE, BASTI DISTRICT, UTTER**| ||**PRADESH, PIN-272 002.**| |**3**|**MITHILESH**| ||**W/O.LATE MUKESH SHARMA, MAJAHUWAMEER P.O.,**| ||**BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER**| ||**PRADESH, PIN-272 002.**| ..2.. M.A.C.A. Nos.2473/14 & 3523 of 2015 - **4 AJAY KUMAR** **S/O.LATE MUKESH SHARMA, MAJAHUWAMEER P.O., BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002.** - **5 NIRMA** **D/O.LATE MUKESH SHARMA, MAJAHUWAMEER P.O., BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002.(REP. BY HIS MOTHER AND NATURAL GUARDIAN MITHILESH).** - **6 KARISHMA** **D/O.LATE MUKESH SHARMA, MAJAHUWAMEER P.O., BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002.(REP. BY HIS MOTHER AND NATURAL GUARDIAN MITHILESH).** - **7 KAREENA** **S/O.LATE MUKESH SHARMA, MAJAHUWAMEER P.O., BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002.(REP. BY HIS MOTHER AND NATURAL GUARDIAN MITHILESH).** **BY ADVS. SRI.BIJIMON C.CHERIAN SMT.P.P.STELLA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019, ALONG WITH MACA.3523/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Kkj M.A.C.A. Nos.2473/14 & 3523 of 2015 ..3.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** ## **MACA.No. 3523 of 2015** **AGAINST THE AWARD IN OPMV 1849/2012 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM DATED 26-05-2014** ## **APPELLANT/S:** **1 BABURAM SHARAMA AGED 60 YEARS S/O.MUNIRAM SHARAMA, MAJAHUWAMEER PO, BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002. 2 MORATHI DEVI AGED 59 YEARS W/O.BABURAM SHARMA, MAJAHUWAMEER PO, BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002. 3 MITHILESH AGED 38 YEARS W/O.LTE MUKESH SHARAMA, MAJAHUWAMEER PO, BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002.** M.A.C.A. Nos.2473/14 & 3523 of 2015 ..4.. - **4 AJAY KUMAR AGED 20 YEARS** **S/O.LATE MUKESH SHARAMA, MAJAHUWAMEER PO, BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002.** - **5 NIRMA** **AGED 17 YEARS** **D/O.LATE MUKESH SHARAMA, MAJAHUWAMEER PO, BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN MITHILESH** - **6 KARISHMA AGED 14 YEARS** **D/O.LATE MUKESH SHARAMA, MAJAHUWAMEER PO, BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN MITHILESH** - **7 KAREENA AGED 11 YEARS** **SO.LATE MUKESH SHARAMA, MAJAHUWAMEER PO, BHADI BHUJURG VILLAGE, BASTI DISTRICT, UTTER PRADESH, PIN-272 002, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN MITHILESH** **BY ADVS. SMT.P.P.STELLA SRI.BIJIMON C.CHERIAN** ## **RESPONDENT/S:** **NATIONAL INSURANCE CO.LTD PALARIVATTOM BRANCH, PALARIVATTOM, ERNAKULAM DISTRICT, PIN-682025, REPRESENTED BY ITS BRANCH MANAGER.** M.A.C.A. Nos.2473/14 & 3523 of 2015 ..5.. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019, ALONG WITH MACA.2473/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** kkj M.A.C.A. Nos.2473/14 & 3523 of 2015 **==> picture [18 x 9] intentionally omitted <==** ## **M.A.C.A. Nos.2473 of 2014 &** ## **3523 of 2015** ## **JUDGMENT** These appeals are directed against the award in O.P. (M.V.) No.1849 of 2012 on the files of the Motor Accidents Claims Tribunal, Ernakulam. Among the appeals, M.A.C.A.No.2473 of 2014 is by the insurer in the proceedings and M.A.C.A.No.3523 of 2015 is by the claimants. 2. One Mukesh, a carpenter by profession died in a motor accident on 09.07.2011. A sum of Rs.18,00,000/- was the claim made in the proceedings by way of compensation. The Tribunal, on an apprisal of the materials on record, granted to the claimants a sum of Rs.15,70,000/-. According to the insurer, the quantum of compensation fixed by the Tribunal is excessive and according to the claimants, the quantum of compensation is grossly inadequate. Hence these appeals. M.A.C.A. Nos.2473/14 & 3523 of 2015 ..7.. 3. The learned counsel for the insurer, placing reliance on Ext.B1 document, contended that the deceased was a person born in the year 1960 and therefore, he should have been treated by the Tribunal as a person aged 51 years in the matter of computing the compensation payable to the claimants. It was pointed out that the Tribunal has reckoned the age of the deceased as 36. According to the learned counsel, if the age of the deceased is reckoned as 51, there will be substantial reduction in the compensation granted by the Tribunal. It was also contended by the learned counsel that the Tribunal has reckoned Rs.6000/- as the monthly income of the deceased. According to the learned counsel, there is no material on record to indicate that the deceased was earning a sum of Rs.6,000/- per month. 4. Per contra, the learned counsel for the claimants submitted that the deceased hails from the State of Uttrar Pradesh and was working as a carpenter in a furniture workshop. Placing reliance on Exhibits A9 and A11, the learned counsel submitted that the deceased was aged only 36 M.A.C.A. Nos.2473/14 & 3523 of 2015 ..8.. years at the time of the accident and the decision of the Tribunal in reckoning his age as 36 is in order. As regards the income, the learned counsel submitted that the pleading of the clamants in the claim petition is that the deceased was earning a sum of Rs.12,500/- per month. It was pointed out that the said pleading was substantiated by the claimants by examining the employer of the deceased as PW1 and he deposed before court that the deceased was being paid wages at the rate of Rs.500/- per day. According to the learned counsel, in the light of the evidence tendered by the employer of the deceased, the Tribunal should have reckoned the monthly income of the deceased at Rs.12,500/-. The learned counsel has also brought to the notice of this court the decision of the Apex Court in **Neeta v. Divisional Manager, Maharashtra State Road Transport Corporation** [2015 ACJ 598], where the Apex Court has reckoned the monthly income of a carpenter, notionally at Rs.12,000/- per month, in the context of an accident took place in the year 2011. It was also contended by the learned counsel for the claimants that the compensation granted by the M.A.C.A. Nos.2473/14 & 3523 of 2015 **==> picture [18 x 8] intentionally omitted <==** Tribunal under the heads of funeral expenses and loss of love and affection are grossly inadequate. 5. I have considered the contentions advanced by the learned counsel on either side. Exhibit A9 is the certified copy of the School Leaving Certificate of the deceased. Exhibit A9 is a document issued in Hindi. Exhibit A10 is the translation of Exhibit A9. Exhibit A10 indicates that the date of birth of the deceased is 15.07.1975. In terms of the Exhibit A9, the deceased is a person aged 36. Exhibit A11 is the certified copy of the family register of the deceased issued by the Panchayat concerned in the State of Uttar Pradesh. Exhibit A12 is the translation of Exhibit A11. Exhibit A12 does not speak about the date of birth of the deceased. Instead, the year of birth of the deceased is shown therein as 1975. Exhibit B1 on which reliance was placed by the learned counsel for the insurer is the photocopy of a duplicate copy of the election identity card claimed to have been obtained by the deceased. It also does not contain the date of birth of the deceased. Instead, it recites the year of birth of the deceased as 1960. Exhibit B1 M.A.C.A. Nos.2473/14 & 3523 of 2015 ..10.. being a photocopy, the marking of the same was objected and hence the same was not marked. Even otherwise, I am of the view that Exhibit A9 certified copy of the School Leaving Certificate of the deceased has to be preferred over the photocopy of the election identity card. The Tribunal was therefore, justified in reckoning the age of the deceased as 36. 6. The next question is as regards the income of the deceased. It is beyond dispute that the deceased was a carpenter. The evidence let in on the side of the claimants to prove the income is the evidence of the employer, namely PW1. His statement is to the effect that the deceased was being paid wages at the rate of Rs.500/- per day. Going by the said statement, if it is taken that the deceased would work for 25 days in a month, his income would come to about Rs.12,500/- per month. In **Ramachandrappa v. Manager,** ## **Royal Sundaram Alliance Insurance Company Limited.** [(2011) 13 SCC 236], the Apex Court has reckonned the monthly income of a person whose income could not be proved by adducing positive evidence, at Rs.4500/- in the context of M.A.C.A. Nos.2473/14 & 3523 of 2015 ..11.. an accident took place in the year 2004. Similarly, in **Syed** ## **Sadiq v. Divisional Manager, United India Insurance Co.** **Ltd.** [(2014) 2 SCC 735], in the case of a vegetable merchant whose income could not be proved by adducing evidence, the monthly income was fixed at Rs. 6500/- in the context of an accident took place in the year 2008. Going by the aforesaid two judgments, there is no difficulty in reckoning the monthly income of the deceased at Rs.8,000/- by making a provision for yearly increase at the rate of Rs.500. However, in the light of the decision of the Apex Court in **Neeta,** where the Apex Court has reckoned the notional monthly income of a carpenter at Rs.12,000/- in the context of an accident took place in the year 2011, and the evidence tendered by PW1, I am of the view that the Tribunal could have reckoned the monthly income of the deceased at Rs.10,000/- per month. If the monthly income of the deceased is reckoned at Rs.10,000/-, the compensation payable for loss of dependency would come to Rs.20,16,000/-. (10,000x140/100x12x15x4/5). The aforesaid amount is arrived at by adding 40% of the income towards future prospects and M.A.C.A. Nos.2473/14 & 3523 of 2015 **==> picture [22 x 7] intentionally omitted <==** by reducing one fifth of the income towards personal expenses as the dependants of the deceased were 7 in number. As the Tribunal has granted a sum of Rs.13,50,000/- to the claimants under this head, they are entitled to a further sum of Rs.6,66,000/- under this head. Towards funeral expenses, only a sum of Rs.10,000/- is seen granted. In the light of the decision of the Apex Court in **National Insurance Company Ltd v Pranay Sethi** [2017(4) KLT 662 (SC)], the claimants are entitled to a sum of Rs.15,000/- under the said head. The claimants are, therefore, entitled to an additional sum of Rs.5,000/- under this head. As noted, the parents, wife and four children of the decased were the claimants in the present case. The wife of the deceased is certainly entitled to compensation for loss of consortium. The remaining dependents, according to me, are entitled to compensation for loss of love and affection. Only a sum of Rs.2,00,000/- was claimed in the proceedings towards compensation for loss of love and affection. Excluding the wife, there were six claimants and according to me, the claim for Rs.200,000/- by M.A.C.A. Nos.2473/14 & 3523 of 2015 ..13.. way of compensation for love and affection appears to be in order. The Tribunal, therefore, should have granted the entire amount claimed by way of compensation under the said head. As the Tribunal has granted a sum of Rs.70,000/-, the claimants are entitled to a further sum of Rs.1,30,000/- under the said head. Thus, the total additional compensation payable to the claimants would come to Rs.8,01,000/-. 7. It is seen that towards loss of estate, a sum of Rs.20,000/- has been granted by the Tribunal by way of compensation. In the light of the decision of the Apex Court in **Pranay Sethi** , the claimants are entitled to only a sum of Rs.15,000/- under the said head. A sum of Rs.5,000/- is seen granted in excess of the eligibility of the claimants. Likewise, in the light of the above judgment of the Apex Court, the wife of the deceased is entitled only to Rs.40,000/- by way of compensation for loss of consortium. The Tribunal has granted under the said head, Rs.1,00,000/-. A sum of Rs.60,000/granted by the Tribunal under this head is also, therefore, in excess. The excess compensation granted by the Tribunal M.A.C.A. Nos.2473/14 & 3523 of 2015 **==> picture [22 x 8] intentionally omitted <==** would thus come to Rs.65,000/-. If the excess compensation granted by the Tribunal is adjusted against the additional compensation to which they are found entitled, the additional compensation payable to the claimants would come to Rs.7,36,000/- (Rs. 8,01,000- Rs.65,000). In the result, the appeals are disposed of granting the claimants a further sum of Rs.7,36,000/- by way of additional compensation. The claimants are entitled to interest on additional compensation at the rate of 7.5% . Sd/- **P.B.SURESH KUMAR,** **JUDGE** kkj