MACA Nos.701 & 1813 of 2015 (Shyamala Subramanian & others vs Bharti AXA General Insurance Co. Ltd.)

## **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. 701 of 2015** **AGAINST THE AWARD IN OPMV 1463/2012 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM DATED 29-08-2014** ## **APPELLANTS/PETITIONERS:** |**1**|**SHYAMALA SUBRAMANIAN**| |---|---| ||**AGED 54 YEARS**| ||**W/O. LATE SUBRAMANIAN, KUTTATH HOUSE, LABOUR**| ||**CORNER, EROOR, NADAMA VILLAGE, THRIPOONITHURA,**| ||**ERNAKULAM DISTRICT.**| |**2**|**NAVEENKUMAR K.S**| ||**AGED 28 YEARS(26.5.1986)**| ||**S/O. LATE SUBRAMANIAN, - DO - - DO -**| |**3**|**PRAVEENKUMAR K.S**| ||**AGED 26 (12.5.1988)**| ||**S/O. LATE SUBRAMANIAN, - DO - - DO -**| |**4**|**DAKSHAYANI**| ||**AGED 88 YEARS**| ||**M/O. DECEASED SUBRAMANIAN, - DO - - DO -**| ||**BY ADVS.**| ||**SRI.K.JANARDHANAN**| ||**SRI.K.J.MANURAJ**| ## **RESPONDENT/3RD RESPONDENT:** **BHARTI AXA GENERAL INSURANCE CO. LTD. 5TH & 6TH FLOOR, MODAYIL CENTER POINT, PALLIMUKKU, M.G.ROAD, KOCHI - 682 035.** **BY ADVS. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019, ALONG WITH MACA.1813/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A Nos.701 & 1813 of 2015 2 ## **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. 1813 of 2015** **AGAINST THE AWARD IN OPMV 1463/2012 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM DATED 29-08-2014** ## **APPELLANT/3RD RESPONDENT:** **M/S.BHARTI AXA GENERAL INSURANCE CO. LTD. 5TH & 6TH FLOOR, MODAYIL CENTER POINT, PALLIMUKKU, M.G.ROAD, KOCHI - 682 035.** **BY ADV. SRI.R.AJITH KUMAR (128/84)** ## **RESPONDENTS/CLAIMANTS:** **1 SHYMALA SUBRAMANIAN W/O.LATE SUBRAMANIAN, KUTTATH HOUSE, LABOUR COMER, EROOR, NADAMA VILLAGE, THRIPOONITHURA ,ERNAKULAM 682306** **2 NAVEENKUMAR K S S/O.LATE SUBRAMANIAN, KUTTATH HOUSE, LABOUR COMER, EROOR, NADAMA VILLAGE, THRIPOONITHURA ,ERNAKULAM 682306** **3 PRAVEENKUMAR K S S/O.LATE SUBRAMANIAN, KUTTATH HOUSE, LABOUR COMER, EROOR, NADAMA VILLAGE, THRIPOONITHURA ,ERNAKULAM 682306** - **4 DAKSHYANI M/O.LATE SUBRAMANIAN, KUTTATH HOUSE, LABOUR** M.A.C.A Nos.701 & 1813 of 2015 3 **COMER, EROOR, NADAMA VILLAGE, THRIPOONITHURA ,ERNAKULAM 682306** **BY ADVS. SRI.K.JANARDHANAN SRI.K.J.MANU RAJ SRI.T.S.SHYAM PRASANTH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019, ALONG WITH MACA.701/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A Nos.701 & 1813 of 2015 4 ## **M.A.C.A Nos.701 & 1813 of 2015 -------------------------------------------** ## **J U D G M E N T** M.A.C.A No.1813 of 2015 is filed by the insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal challenging the quantum of compensation granted to the claimants in the proceedings and M.A.C.A No.701 of 2015 is filed by the claimants in the proceedings seeking enhancement of the compensation granted. 2. One Subramanian died in a motor accident on 15.05.2012. His wife, children, two in number and mother were the claimants in the proceedings. They claimed a sum of Rs.42,15,000/- by way of compensation. As against the said claim, the Tribunal granted a sum of Rs.9,82,500/-. As noted, both the insurer and the claimants in the proceedings are aggrieved by the quantum of compensation fixed by the M.A.C.A Nos.701 & 1813 of 2015 5 Tribunal. 3. Heard the learned counsel for the insurer as also the learned counsel for the claimants. 4. The learned counsel for the insurer contended that a sum of Rs.8,40,000/- has been granted by the Tribunal to the claimants towards compensation for loss of dependency, reckoning the monthly income of the deceased at Rs.21,000/-. It was argued by the learned counsel that as the deceased was an income tax assessee, the Tribunal has accepted in toto the case set out by the claimants in the claim petition that the deceased was earning a sum of Rs.21,000/- per month, without referring to the income tax returns of the deceased which were produced before the Tribunal by the claimants as Exts.A12 to A14. It was argued by the learned counsel that the income tax returns produced by the claimants as Exts.A12 to A14 would only indicate that the gross income of the deceased was approximately Rs.1,80,000/-. According to the learned counsel, even if it is taken that the income tax returns reflect the actual income of the deceased, there is no justification for the Tribunal M.A.C.A Nos.701 & 1813 of 2015 6 in reckoning the monthly income of the deceased at Rs.21,000/-. Further, it is pointed out by the learned counsel that the income disclosed in Exts.A12 to Exts.A14 returns, pertains to the rental income of the deceased in respect of a building. Placing reliance on the evidence rendered by the wife of the deceased, the learned counsel argued that it was admitted by the wife of the deceased during cross examination that the income tax returns relate to the income received by the deceased by way of rent from a building and the said building even now exists. According to the learned counsel, in such circumstances, the Tribunal was not justified in fixing the monthly income of the deceased at Rs.21,000/- on the premise that the deceased was an income tax assessee. 5. As rightly pointed out by the learned counsel for the insurer, it is seen that the wife of the deceased has admitted during cross examination that the income tax returns produced before the Tribunal pertain to the rental income of the deceased from a building and the said building is now under the ownership of the legal representative of the deceased. In M.A.C.A Nos.701 & 1813 of 2015 7 the circumstances, I am constrained to accept the contention raised by the learned counsel for the insurer that the Tribunal should not have reckoned the monthly income of the deceased as pleaded by the claimants on the basis of the income tax returns of the deceased. That does not mean that the claimants are not entitled to compensation for loss of dependency. Since it is found that the income tax returns relied on by the claimants to prove the income of the deceased cannot be accepted for the said purpose, the claimants can be granted compensation for loss of dependency treating him as a person whose income was not established by the claimants. In the light of the decisions of the Apex court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited,** (2011) 13 SCC 236 and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.** (2014) 2 SCC 735, where the Apex Court has reckoned the monthly income of persons whose income could not be established by independent evidence at Rs.4,500/- and Rs.6,500/- in the context of accidents took place in the year 2004 and 2008 M.A.C.A Nos.701 & 1813 of 2015 8 respectively, I am of the view that in so far as the accident in the instant case took place in the year 2012, the monthly income of the deceased can be reckoned at Rs.8,500/-. The Tribunal found that the deceased was in the age group of 61 to 65 at the time of death. The multiplier to be adopted in the matter of computing the compensation payable for loss of dependency for such persons is '7'. The dependants of the deceased being four in number, one fourth of the income will have to be deducted for personal expenses. The compensation payable to the claimants under the said head would, therefore, come to Rs.5,35,500/-(Rs.8,500x12x7x3/4). As the Tribunal has granted a sum of Rs.8,40,000/- to the claimants, Rs.3,04,500/granted by the Tribunal under the above head is in excess. 6. It is seen that a sum of Rs.20,000/- each has been granted by the Tribunal towards funeral expenses and towards loss of estate. 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 only a sum of Rs.15,000/- each under the said head. In other words, a sum M.A.C.A Nos.701 & 1813 of 2015 9 of Rs.10,000/- granted by the Tribunal under the above heads is in excess. At the same time, towards compensation for loss of consortium to the wife of the deceased, the Tribunal has granted only a sum of Rs.30,000/-. In the light of the aforesaid decision, the wife of the deceased is entitled to a sum of Rs.40,000/- under the said head. In other words, the excess compensation granted towards funeral expenses and loss of estate would get adjusted against the shortfall in the compensation granted for loss of consortium. It is seen that only a sum of Rs.30,000/- has been granted by the Tribunal to the children towards loss of love and affection. According to me, in the light of the decision of the Apex court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), the children are entitled to compensation for loss of love and affection at the rate of Rs.40,000/- each. The claimants are, therefore, entitled to a further sum of Rs.50,000/- under the said head. It is seen that the Tribunal has granted a sum of Rs.15,000/- by way of compensation under the head, viz, 'loss of marital life and care'. There is no such M.A.C.A Nos.701 & 1813 of 2015 10 head in which the claimants could seek compensation. The said amount of compensation is, therefore, liable to be deducted from the compensation payable to the claimants. In other words, net additional compensation payable to the claimants would only be Rs.35,000/-. Since it is found that the claimants are entitled to a sum of Rs.35,000/- over and above the compensation granted by the Tribunal, the net excess compensation granted by the Tribunal would work out to be Rs.2,69,500/-. In the result, the appeals are disposed of fixing the total compensation payable to the claimants at Rs.7,13,000/-. **Sd/-** **P.B.SURESH KUMAR** Mn **JUDGE**