MACA Nos. 3838 & 2783 of 2016 (Motor Accidents Claims Appeal), High Court of Kerala at Ernakulam

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943 ## MACA.No.3838 OF 2016(F) AGAINST THE AWARD IN OPMV NO.433/2015 DATED 04-06-2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI ## APPELLANTS/PETITIONERS: 1 DR. GEETHUDAS, AGED 26 YEARS, W/O LATE BIBIN, THEKKITHODIYIL HOUSE, MAKKARAPARAMBA P.O, KACHINIKKAD, PERINTHALMANNA TALUK, MAKKARAPARAMBA AMSOM, MALAPPURAM DISTRICT. 2 KAMALA AGED 53 YEARS, M/O LATE BIBIN, THEKKITHODIYIL HOUSE, MAKKARAPARAMBA P.O, KACHINIKKAD, PERINTHALMANNA TALUK, MAKKARAPARAMBA AMSOM, MALAPPURAM DISTRICT. ## 3 RAMACHANDRAN AGED 62 YEARS, F/O LATE BIBIN, THEKKITHODIYIL HOUSE, MAKKARAPARAMBA P.O, KACHINIKKAD, PERINTHALMANNA TALUK, MAKKARAPARAMBA AMSOM, MALAPPURAM DISTRICT. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SRI.M.A.AHAMMAD SAHEER SMT.K.AASHA ## RESPONDENT/3RD RESPONDENT: ORIENTAL INSURANCE CO. LTD. ROYAL BUILDING, JUBILEE JUNCTION, CALICUT ROAD, PERINTHALMANNA, PIN 679 322. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021, ALONG WITH MACA NO.2783/2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.3838 & 2783 / 2016 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943 ## MACA.No.2783 OF 2016 AGAINST THE AWARD IN OPMV NO.433/2015 DATED 4-6-2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI ## APPELLANT/3RD RESPONDENT IN THE OP: THE ORIENTAL INSURANCE COMPANY LIMITED PERINTHALMANNA, REP. BY THE ASSISTANT MANAGER & AUTHORISED SIGANATORY, THE ORIENTAL INSURANCE CO.LTD.REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE ## RESPONDENTS/CLAIMANTS IN OP: 1 DR. GEETHUDAS W/O. DR. BIBIN, THEKKITHODIYIL HOUSE, MAKKARAPARAMBA P.O., KACHINIKKAD, PERINTHALMANNA TALUK, MAKKARAPARAMBA AMSOM, MALAPPURAM DISTRICT.676507 2 KAMALA M/O. DR.BIBIN, THEKKITHODIYIL HOUSE, MAKKARAPARAMBA P.O., KACHINIKKAD,PERINTHALMANNA TALUK, MAKKARAPARAMBA AMSOM,MALAPPURAM DISTRICT.676507 3 RAMACHANDRAN D/O. DR.BIBIN, THEKKITHODIYIL HOUSE,MAKKARAPARAMBA P.O., KACHINIKKAD,PERINTHALMANNA TALUK, MAKKARAPARAMBA AMSOM,MALAPPURAM DISTRICT.676507 R1 BY ADV. SRI.K.N.ABHILASH R1 BY ADV. SRI.M.A.AHAMMAD SAHEER R1 BY ADV. SRI.SUNIL NAIR PALAKKAT THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021, ALONG WITH MACA.3838/2016(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.3838 & 2783 / 2016 3 ## JUDGMENT [ MACA.3838/2016 & MACA.2783/2016] Dated this the 25th day of March 2021 ... Both these appeals are arising from an award passed in O.P.(MV) No.433 of 2015 on the file of the Motor Accidents Claims Tribunal, Manjeri. M.A.C.A. No.2783/2016 is filed by the Insurance company challenging the quantum of compensation whereas M.A.C.A.No.3838/2016 is filed by the claimants seeking enhancement of compensation. For the sake of convenience the parties are referred herein in the same status as they are in the party array of M.A.C.A.No.2783/2016. 2. The claim petition in this case was filed by respondents 1 to 3 in M.A.C.A. No.2783/2016 seeking compensation for the death of one Dr.Bibin in a motor accident occurred on 5.2.2015. According to the claimants, the deceased was aged 30 and was a doctor by profession. According to them, he was employed in Kerala State Health Service with a monthly salary of MACA Nos.3838 & 2783 / 2016 4 Rs.47,450/- which was later revised as Rs.57,718/- with effect from 1.7.2014 consequent to the report of the 10[th] Pay Commission. It was further contended by the claimants that, in addition to the said salary, the deceased was also getting a further amount of Rs.50,000/- per month from his private practice. The total amount of compensation quantified by the respondents/claimants was Rs.2,12,62,000/- but the claim was limited to Rs.2,10,00,000/-. The appellant Insurance Company who was the 3[rd] respondent in the claim petition, filed a written statement admitting the coverage of policy, but disputed the liability on various grounds. The quantum of compensation claimed by the respondents/claimants was also seriously disputed by them. The evidence in this case consists of oral evidence of PW1 and the documents were marked as Ext.A1 to A20 from the side of the respondents/claimants. No evidence was adduced from the side of the appellant. 3. After the trial, the Tribunal passed an award allowing a total compensation of Rs.1,65,49,118/- which is rounded to Rs.1,65,50,000/-. This amount was directed to be deposited by the Insurance Company along MACA Nos.3838 & 2783 / 2016 5 with interest at the rate of 9% per annum. This award is under challenge in these appeals at the instance of the Insurance Company as well as the claimants. 4. Heard the learned counsel for the Insurance Company and the learned counsel for the respondents/petitioners. 5. The contention raised by the Insurance Company is mainly based on the monthly income taken by the Tribunal. The Tribunal, after accepting the monthly salary of Rs.57,718/- in its entirety, added a further amount of Rs.25,000/- towards income generated from the private practice. According to the learned counsel for the appellant Insurance Company, there is no evidence available on record to establish the monthly income from the private practice. According to him, no documents were produced to show the same and the only evidence is the deposition of PW1 who is none other than the father of the deceased and he is a highly interested witness. Apart from the above, the learned counsel for the appellant pointed out that, the deduction made towards personal expenses of the deceased is 1/4[th] whereas the actual deduction should MACA Nos.3838 & 2783 / 2016 6 have been 1/3[rd] , as the number of dependent family members were only 3. It was also pointed out by him that, the wife is also a doctor by profession and she re-married after the accident and, therefore, that is also a relevant aspect to be taken note of while computing the compensation. Apart from the above, he also disputed the amounts awarded under the heads of loss of estate, loss of love and affection, loss of consortium and funeral expenses. 6. Another contention raised by the learned counsel for the appellant that, since the 1[st] respondent, ie. the wife of the deceased had re-married after the accident, she will not be entitled for compensation for loss of dependency. However, the said issue has already been decided by this Court in M.A.C.A.No.1936/2018. In the said judgment, it has been categorically observed by this Court that, the re- marriage of the widow after the accident cannot be taken as a ground to make any deduction from the compensation which she is otherwise entitled. In the light of the principles laid down by this Court in the above case, the said contention is only to be rejected. MACA Nos.3838 & 2783 / 2016 7 However, with regard to the assessment of compensation under the head of loss of dependency and other grounds, this Court is of the view that, there is some force in the contentions put forward by the learned counsel for the appellant. As mentioned above, the Tribunal has taken Rs.25,000/- as the additional income generated from the private practice of the deceased. It is also true that, apart from the interested testimony of PW1, no other evidence is available. The respondents/claimants have not produced any document to prove such income. Since it is an admitted fact that, the deceased was an assessee of income tax, returns during the period would have been relevant to prove the actual income of the deceased. However, the said documents were not produced. Therefore, the finding of the Tribunal that he was getting an amount of Rs.25,000/- per month from his private practice as such cannot be accepted. However, this Court is of the view that the deceased being a doctor by profession, certainly he will be getting some amount through his private practice. In the facts and circumstances of this case, this Court is of the view that, Rs.15,000/- MACA Nos.3838 & 2783 / 2016 8 can be taken as the income from his private practice. 7. Going by the principles laid down by the Hon’ble Supreme Court of India in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], 50% of the income has to be added towards future prospects. If that be so, the monthly income of the deceased will come to Rs.1,09,077/- [Rs.57718+15000+36359] and thus the total annual income of the deceased will come to Rs.13,08,924/- [1,09,077x12]. Since the deceased being an income tax assessee, 30% of the income has to be deducted towards income tax. After deducting the said amount, the actual annual income of the deceased will come to Rs.9,16,247/-[Rs.13,08,924-392677]. The multiplier applicable in this case is 17 and the number of dependents of the deceased being 3, the personal expense of the deceased should have been deducted at th the rate of 1/3[rd] instead of 1/4 . Thus, while calculating the loss of dependency, the claimants are entitled for an amount of Rs.1,03,84,133/[Rs.9,16247x17x2/3]. The Tribunal has awarded an amount of Rs.1,59,52,035/- under the head of loss of dependency. If that be so, the excess amount MACA Nos.3838 & 2783 / 2016 9 awarded by the Tribunal under this head is Rs.55,67,902/- which has to be deducted from the total compensation awarded by the Tribunal. 8. Apart from the above, an amount of Rs.1 lakh is awarded under the head of loss of consortium and a further sum of Rs.3 lakhs is awarded under the head of loss of love and affection. Going by the principles laid down by the Hon’ble Supreme Court of India in _United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Other [2020(2) KHC 760]_ and Magma General Insurance Co.Ltd. v. Nanu Ram and Others [2018 ACJ 2782] no amount of compensation under the head of loss of love and affection need be granted, when an amount of compensation is awarded under the head of loss of consortium. Therefore, awarding of amounts by the Tribunal under both the said heads simultaneously, is not sustainable. Further, in the light of the above judgment, the wife is entitled for spousal consortium of Rs.40,000/- and the parents are entitled for filial consortium of Rs.40,000/- each. Thus, the loss of consortium granted by the Tribunal is re-fixed as Rs. 1,20,000/- . Hence, the claimants are entitled to get MACA Nos.3838 & 2783 / 2016 10 an additional amount of Rs.20,000/- under the head of loss of consortium and the entire amount of Rs.3 lakhs granted under the head of loss of love and affection shall stand deleted. It was also pointed out by the respondents that, no amount was granted under the head of pain and suffering. According to them, considering the facts and circumstances of this case, an amount of Rs.10,000/- should have been granted under the head of pain and suffering. However, it is to be noted that, an amount of Rs.25,000/- has been granted by the Tribunal under the head of funeral expenses which is excess of Rs.10,000/- as per the principles laid down in Pranay Sethi’s case (supra). Therefore, no interference is warranted in the said head and, therefore, amounts awarded under the said head is retained as such. It is also pointed out by the learned counsel for the appellant that, the compensation towards of loss of estate, an amount of Rs.1 lakh has been granted by the Tribunal, whereas, as per the principles laid down in Pranay Sethi’s case (supra) the said amount should have been Rs.15,000/- and thus an amount of Rs.85,000/- has to be deducted under this head. MACA Nos.3838 & 2783 / 2016 11 In the light of the above discussions, the compensation under the following heads are re-fixed/ while the compensation granted by the Tribunal under other heads will remain as such. a)Loss of dependency is re-fixed as Rs.1,03,84,133/- instead of Rs.1,59,52,035/-, resulting in a reduction of Rs.55,67,902/- from the total compensation; b)The amount of Rs.3,00,000/- awarded under the head of loss of love and affection is set aside and it is resulting in a deduction of Rs.3,00,000/- from the total compensation. c)The amount awarded under the head of loss of estate has been re-fixed as Rs 15,000/- instead of Rs.1,00,000/-, resulting in deduction of Rs. 85,000/- from the total compensation. d)Loss of consortium is re-fixed as Rs.1,20,000/- instead of Rs 1,00,000/- and resulting in addition of Rs.20,000/- Thus the total amount of compensation is re-fixed as Rs 1,06,16,216/- (Rupees one crore six lakhs, sixteen thousand two hundred and sixteen MACA Nos.3838 & 2783 / 2016 12 only) instead of Rs.1,65,50,000/- (Rupees one Crore sixty five lakhs, fifty thousand only) _– [Rs.1,65,49,118 (55,67,902+3,00,000+85,000) + 20,000]._ The appellant Company is directed to deposit the amount as mentioned above, along with interest and proportionate cost in the same rate as ordered by the Tribunal, after adjusting the amounts already deposited by the Insurance Company, within a period of three months from the date of receipt of a copy of this judgment. The respondents/claimants are at liberty to approach the Tribunal for getting the amount released to them, upon filing appropriate application in this regard. The above appeals are disposed of as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk