MACA Nos.159 and 1161 of 2020, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945** ## **MACA NO. 159 OF 2020** **AGAINST THE ORDER/JUDGMENT OPMV 1655/2015 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL.** **M.A.C.T.** ## **APPELLANT/RESPONDENT 2:** UNITED INDIA ASSURANCE COMPANY LTD., KIZHEKKEDAM COMPLEX, PATHANAMTHITTA, PIN 689 645 REPRESENTED BY THE AUTHORISED SIGNATORY ASST. MANAGER, REGIONAL OFFICE, HOSPITAL ROAD, KOCHI - 682 011 BY ADV RAJAN P.KALIYATH ## **RESPONDENT/PETITIONER:** 1 THUSHARA N.T., AGED 36 YEARS W/O. PRASANNAKUMAR, POOVANNUMVILAYIL, ANANDAPPALLY POST, PANNIVIZHA, ADOOR PIN 691 525 2 ATHULYA P. AGED 13 YEARS DOB 24.04.2006 (MINOR), D/O. PRASANNAKUMAR, POOVANNUMVILAYIL, ANANDAPPALLY POST, PANNIVIZHA, ADOOR REP BY THE MOTHER AND NATURAL GUARDIAN FIRST RESPONDENT THUSHARA, PRASANNAKUMAR, POOVANNUMVILAYIL, ANANDAPPALLY POST, PANNIVIZHA, ADOOR PIN 691 525 3 SARASWATHI AMMA AGED 85 YEARS W/O. SIVARAMA KURUP, POOVANNUMVILAYIL, ANANDAPPALLY POST, PANNIVIZHA, ADOOR PIN 691 525 4 USHAKUMARI S. AGED 56 YEARS D/O. SIVARAMA KURUP, POOVANNUMVILAYIL, ANANDAPPALLY POST, PANNIVIZHA, ADOOR PIN 691 525 BY ADV SRI.A.N.SANTHOSH R1-R4 ADV.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, ALONG WITH MACA.1161/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A Nos.159 and 1161 of 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945** **MACA NO. 1161 OF 2020** **AGAINST THE ORDER/JUDGMENT OPMV 1655/2015 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL.** **M.A.C.T.** ## **APPELLANT/PETITINERS:** 1 THUSHARA.N.T, AGED 37 YEARS W/O.PRASANNAKUMAR,POOVANNUMVILAYIL HOUSE, ANANDAPALLY.P.O, PANNIVIZHA,ADOOR. 2 ATHULYA.P,, AGED 14 YEARS D/O.PRASANNAKUMAR,POOVANNUMVILAYIL HOUSE,ANANDAPALLY.P.O,PANNIVIHA,ADOOR,MINOR,REPRESENTED BY NATURAL GUARDIAN MOTHER 1ST APPELLANT 3 SARASWATHI AMMA,, AGED 86 YEARS W/O.SIVARAMA KURUP,POOVANNUMVILAYIL HOUSE, ANANDAPALLY.P.O, PANNIVIZHA,ADOOR. 4 USHAKUMARI.S,, AGED 57 YEARS D/O.SIVARAMA KURUP,POOVANNUMVILAYIL HOUSE,ANANDAPALLY.P.O, PANNIVIZHA,ADOOR. BY ADV A.N.SANTHOSH ## **RESPONDENT/RESPONDENTS:** 1 MANOJ KUMAR S/O.RAVEENDRAN NAIR,MULLASSERIL VEEDU,PRA67,PATHIRAPILLIL ROAD, POOJAPPURA-695012. 2 THE DIVISIONAL MANAGER, UNITED INDA INSURANCE COMPANY LTD, KIZHAKKEDAM COMPLEX,PATHANAMTHITTA -689645. BY ADVS. SRI.D.KISHORE SRI.RAJAN P.KALIYATH SRI.R.MURALEEKRISHNAN (MALAKKARA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, ALONG WITH MACA.159/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 M.A.C.A Nos.159 and 1161 of 2020 ## **JUDGMENT** Both these appeals are arising from the award dated 22.10.2019 in O.P.(MV).No.1655 of 2015 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. M.A.C.A.No. 1161/2020 is submitted by the claimants before the Tribunal seeking enhancement of compensation. M.A.C.A.No.159/2020 is submitted by the 2[nd] respondent Insurance Company. For convenience, the parties are hereinafter referred to in this appeal based on their respective ranks in the claim petition. 2. The petitioners have submitted the aforesaid claim petition seeking compensation for the death of one Prasannakumar, who died due to the injuries sustained in an accident that occurred on 5.07.2015. He was aged 42 years at the time of the accident. The 1[st] petitioner is the wife, the 2[nd] petitioner is the daughter, the 3rd petitioner is the mother, and the 4th petitioner is the sister of the deceased's father. According to the claimants, the accident occurred when the scooter ridden by the deceased was hit by a car bearing Registration No.GJ 18BA 2533 driven by the 1[st] respondent in the claim petition and insured 4 M.A.C.A Nos.159 and 1161 of 2020 with the 2[nd] respondent Insurance Company. It was contended that the deceased was working as an Instrumentation foreman working under Tecrimont ICB Private Ltd. with a monthly income of Rs.1,50,000/-. As compensation, the claimants have claimed an amount of Rs.1,00,00,000/-. 3. The 1[st] respondent appeared and filed a written statement contending that the accident occurred due to the negligence of the deceased himself. The quantum of compensation was also disputed. The 2[nd] respondent Insurance Company filed a written statement admitting the coverage of the policy in respect of the car but disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. 4. The said claim petition was tried along with O.P. (MV).No.1505/2015 and 1724/2015, which arose in connection with the very same accident and were disposed of by a common award. The evidence in these cases consists of oral evidence of PW1, and through him, Exts.A1 to A36 were marked. No evidence was adduced by the respondents. After appreciating the materials placed on record, the Tribunal passed an award holding that the 5 M.A.C.A Nos.159 and 1161 of 2020 accident occurred due to the negligent driving of the 1[st] respondent and being the insurer, the 2[nd] respondent Insurance Company was held responsible for paying the compensation. The quantum of compensation was fixed as Rs.43,79,000/- and the 2[nd] respondent Insurance Company was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realization. Being dissatisfied with the quantum of compensation, the claimants have filed MACA No.1161 of 2022, whereas being aggrieved by the said quantum, the 2[nd] respondent Insurance Company filed M.A.C.A.No.159 of 2022. 5. Heard Sri. Rajan P.Kaliyath, learned counsel for the Insurance company and also for the appellant in MACA.No. 159 of 2022 and Sri.A.N.Santhosh, appearing for the claimants, appellants in MACA.No.1161 of 2020. 6. The learned counsel for the 2[nd] respondent Insurance company mainly contended that the quantum of compensation awarded by the Tribunal, particularly the amount under the head of loss of disability, was on the higher side. The learned counsel pointed out that even though no materials were produced, the Tribunal fixed the monthly income as Rs.30,000/-, which is on the 6 M.A.C.A Nos.159 and 1161 of 2020 higher side. On the other hand, the learned counsel for the claimants would point out that the deceased was an experienced Instrumentation foreman, working as such, since 1992 in various companies with good experience and expertise. To support the said contention, the learned counsel for the claimants would rely upon the evidence of PW1, wife of the deceased and Exts.A9 to A39. By relying on the same, it was contended that the monthly income fixed as Rs.30,000/- is on the lower side. Besides the same, it was also contended that the Tribunal did not consider the 4[th] claimant as the dependent of the deceased, who is an unmarried sister of the father of the deceased, and the said finding is liable to be interfered with. According to him, the 4[th] claimant was completely dependent upon the deceased, being an unmarried lady without any employment, and the said aspect has been asserted by PW1 in his deposition, which was not effectively cross-examined by the respondent. 7. Thus, the 1[st] question to be considered is whether the monthly income of Rs.30,000/- taken by the Tribunal requires any interference. As pointed out by the learned counsel for the claimants, the Tribunal fixed the said monthly income as 7 M.A.C.A Nos.159 and 1161 of 2020 Rs.30,000/- by placing reliance upon Ext.A9 to A31. Exts.A9 to A25 are the work experience certificates issued by various companies for the period from the year 1993 to 2013. The aforesaid certificates would indicate the nature of employment of the deceased and his expertise as an Instrumentation foreman. The crucial aspect to be noticed is that the aforementioned documents would suggest that he was being regularly engaged in different projects, without many breaks in between, by various companies which have very good reputation and financial status. The main contention put forward by the learned counsel for the Insurance Company is that the income the deceased was earnings was from employment abroad, which does not have any job security, and the expenses that the employee might incur would also be on the higher side. Therefore, a deduction of 50% is to be made from the monthly income reckoned by the Tribunal. The learned counsel placed reliance upon the decision rendered by the Honourable Supreme Court in **United India Insurance Co, Ltd v. Satinder Kaur [2020 SCC Online SC 410],** in similar circumstances, 50% was deducted towards personal expenses. 8 M.A.C.A Nos.159 and 1161 of 2020 8. As mentioned above, Ext.A9 to A25 would clearly establish the expertise of the deceased in his employment. Ext.A26 to A28 are the certificates evidencing the appreciation that the deceased received in his employment from various establishments, which would fortify the expertise of the deceased in his avocation. On going through the evidence of PW1, the wife of the deceased, it is seen that, according to her, the deceased was working abroad till December 2014, and he came back to his native place for the construction of his residence. The documents would also indicate that the deceased was basically employed by an Indian company, and quite often, he was sent abroad for the implementation of various projects, and accordingly, he worked abroad based on such assignments. The Ext.A30 is the passport of the deceased, and A31 is the statement of account issued from Kotak Mahindra Bank for the period from 12.12.2013 to 28.07.2015, which reflects transactions from 17.01.2014 to 10.06.2015. In the evidence of PW1, she stated that, during the said period, the deceased received an amount of Rs.10,41,752/as his salary. The learned counsel for the Insurance Company would oppose the aforesaid aspect by pointing out that all the 9 M.A.C.A Nos.159 and 1161 of 2020 credit entries in the said account cannot be treated as the income of the deceased without any other evidence. On going through the credit entries in Ext.31, it could be seen that the aforesaid entries are very regular and on more than two occasions, the credit entries of huge amounts are seen. The frequency of the credit entries in the said account would undoubtedly indicate the financial status of the deceased. In this regard, it is also to be noted that the various certificates on record, i.e. Ext.A9 to A32, are testimonies of the expertise of the deceased in his field and would certainly fortify a regular high-income. Therefore, when a balanced approach is adopted by considering the contentions raised by the learned counsel for the claimants as well as the learned counsel for the Insurance Company, the monthly income of the deceased can be fixed based on the entries in the account statement after making some deduction from the amount shown as credit entries in the accounts during the said period, towards the possibility of some other transactions being taken place in that account. In this regard, it is to be noted that the period of transaction reflected in the account statement is for a period of 20 months, and therefore, the average monthly credit can be 10 M.A.C.A Nos.159 and 1161 of 2020 ascertained more than Rs.50,000/-. From the above, the monthly income can be reasonably fixed as Rs.50,000/-. In this regard, it is also to be noted that even the Tribunal has also arrived at the conclusion that the deceased was getting more than 50,000/- per month, but the monthly income was fixed as 30,000/-, taking note of the fact that, it was not a regular employment, and he was being engaged periodically. However, Ext.A9 to A30 would clearly indicate that even though his engagement was periodical, he was almost employed regularly with good remuneration. In such circumstances, Rs.50,000/- can be taken as the monthly income. 9. Now, when coming to the question of deductions, as rightly pointed out by the learned counsel for the appellant, taking note of the fact that most of the income is generated from employment abroad, 50% thereof can be deducted. Therefore, to compute the monthly income for assessing the loss of dependency, Rs.25,000/- can be accepted. The said amount can be fixed to compute the compensation, with 25% towards future prospects. Thus, the amount of compensation as calculated above would come to Rs.52,50,000/- [ (25000 + 25%) x 12 x 14] after the deduction of Rs.42,00,000/- already awarded under this head, 11 M.A.C.A Nos.159 and 1161 of 2020 the balance amount would come to Rs.10,50,000/-. Since the deduction of 50% was made based on **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780], the question of ¼ deduction as contended by the learned counsel for the claimants, in view of the dependency of the 4[th] respondent on the deceased would not arise. In all the other heads, the amount awarded appears to be reasonable. In such circumstances, both these appeals are disposed of by modifying the award dated 22.10.2019 in O.P.(MV) No. 1655/2015 on the files of Motor Accidents Claims Tribunal, Pathanamthitta, by granting an additional amount of Rs.10,50.000/- which shall be deposited by the insurance company with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of copy of this judgment after adjusting the amounts already deposited. Sd/- ## **ZIYAD RAHMAN A.A** **JUDGE** rpk