M.A.C.A.1303 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 MACA NO. 1303 OF 2018** ## **AGAINST THE AWARD IN OPMV 286/2015 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL, KALPETTA** ## **APPELLANTS/PETITIONERS:** - 1 M.K.KURIAN, AGED 61 YEARS, S/O.JOSEPH, MALEKUDIYIL HOUSE, VATTACHOLA, CHELLANKODE POST, MOOPPAINADU VILLAGE, VADUVANCHAL(VIA), VYTHIRI TALUK, WAYANAD DISTRICT,(FATHER OF DECEASED JINTO KURIAN) - 2 ANNAMMA, AGED 57 YEARS, W/O.K.J.KURIAN, MALEKUDIYIL HOUSE, VATTACHOLA, CHELLANKODE POST, MOOPPAINADU VILLAGE, VADUVANCHAL(VIA), VYTHIRI TALUK, WAYANAD DISTRICT,(FATHER OF DECEASED JINTO KURIAN) - 3 ALEXI KURIAN, AGED 31 YEARS, D/O.M.K.KURIAN, MALEKUDIYIL HOUSE, VATTACHOLA, CHELLANKODE POST, MOOPPAINADU VILLAGE, VADUVANCHAL(VIA), VYTHIRI TALUK, WAYANAD DISTRICT (FATHER OF DECEASED JINTO KURIAN). BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/RESPONDENT NO.3:** THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. KALPANA SHOPPING COMPLEX,MAIN ROAD,KALPETTA POST,WAYANAD DISTRICT-673121. BY ADV SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2022, THE COURT ON 12.10.2022 DELIVERED THE FOLLOWING: M.A.C.A.1303 of 2018 2 ## **C.JAYACHANDRAN, J** **-----------------------------------M.A.C.A.No.1303 of 2018 -------------------------------------Dated this the 12[th] day of October, 2022** ## **J U D G M E N T** **1.** This appeal is carried by the claimants in O.P.(M.V.)No.286 of 2015 of the Motor Accidents Claims Tribunal, Waynad. The claimants/appellants are the parents and sibling of the deceased, who succumbed to the injuries sustained in a motor accident, which took place on 23.02.2014, after being hospitalized for a period of 7 days. The appeal essentially pertains to the insufficiency of the quantum of compensation granted by the Tribunal under various heads. **2.** Heard Smt.Celine Joseph, learned counsel for the appellant and Sri.Lal George, learned counsel for the third respondent/insurance company. Perused the records. **3.** Learned counsel for the appellant first M.A.C.A.1303 of 2018 3 contended that the notional income reckoned by the Tribunal is grossly low. It was pointed out that the deceased was a brilliant student, who was pursuing MBA degree, after his graduation. It was during the study leave for the final year examination that the accident occurred and the deceased died. The deceased was offered a job in U.A.E., in support of which, Annexure-A7 salary certificate was produced indicating a salary of AED 4500, corresponding to Rs.72,500/-. Ext.A7 is issued by the Chief Executive Officer of NORKA Roots, wherein the factum of a job offer from M/s.Al-Maha Electrical and Sanitary, Const; Ras Al Khaimah has been confirmed. Ext.A10 is issued by the Consulate General of India, where again, the issuance of appointment letter, with a salary of AED 4500, is confirmed. According to the learned counsel, when the salary certificate issued to the deceased has been certified by the Governmental agencies as true and genuine, the salary indicated therein ought to have been taken. Instead, a much less sum of Rs.25,000/- M.A.C.A.1303 of 2018 4 per month was reckoned by the Tribunal. The second contention is with respect to the loss on account of consortium. As against the entitlement of Rs.40,000/- each, the Tribunal had granted a consolidated sum of Rs.50,000/-, that too, under the head 'love and affection'. The third ground is that the deceased is entitled to future prospects being reckoned to the salary, which was not done by the Tribunal. Here again, learned counsel stressed that the deceased was a meritorious student, as taken note of by the Tribunal, at page no.14 of the award. Exts.A12, A13 and A14 documents would vouch the said fact, thus rendering eligible to reckon future prospects as well, is the contention raised. **4.** Per contra, learned counsel for the third respondent/insurance company submitted that the salary indicated in Exts.A7 and A10 are in respect of a future employment, wherefore, the same, as such, cannot be taken, taking into account the possible imponderables and uncertainties. The salary indicated M.A.C.A.1303 of 2018 5 in Exts.A7 and A10 cannot be given the same sanctity and evidentiary value of an actual salary being drawn by a person _in praesenti._ Nevertheless, the Tribunal reckoned salary at the rate of Rs.25,000/- per month, _dehors_ the fact that the deceased was only a student. According to the learned counsel, the income reckoned by the Tribunal warrants no interference. As regards consortium, learned counsel pointed out that the parents alone are entitled to consortium and siblings are not. Regarding future prospects also, learned counsel for the insurance company seriously opposed the claim, by pointing out that, future prospects is to be reckoned as a fixed percentage of the actual income. In as much as the deceased was not having any actual income, he being a student, no future prospects could be reckoned, is the argument. **5.** Having heard the learned counsel appearing on both sides, this Court is of the opinion that the income reckoned by the Tribunal in the light of Exts.A7 and A10 documents is on the lower side. The M.A.C.A.1303 of 2018 6 contention of the learned counsel is that in no case where the death is of a student, the courts have not fixed the income anywhere near Rs.36,000/- per month. Referring to certain decisions, it was submitted that the highest income, which is seen reckoned, is Rs.18,000/-. The only answer to the said contention, while dismissing the same, is to hold that, each case has to be decided on its peculiar facts and evidence on record. In cases referred to by the learned counsel for the respondent/insurance company, there was no yardstick/evidence indicating the probable income of the deceased/student, in which case, the only course open was to arrive at a speculated notional amount, based on broad possibilities. Per contra, in the facts and circumstances of this case, there exists specific evidence in the form of Exts.A7 and A10, indicating that the deceased was issued with a letter of employment, with a monthly salary of AED 4500, corresponding to Rs.72,500(approximately). The sanctity of Ext.A7 is certified by Ext.A10, the latter M.A.C.A.1303 of 2018 7 being a letter issued by the Consulate General of India, NORKA Roots confirming the fact that M/s.AlMaha Electrical and Sanitary, Const; Ras Al Khaimah had issued an appointment letter to the deceased on 30[th] March 2014, offering a monthly salary of AED 4500. The Tribunal found that, Exts.A7 and A10 are genuine documents, the credibility of Ext.A7 being vouched by Ext.A10 document. Therefore, this Court is of the opinion that the speculated/notional income reckoned in other cases, where there was no evidence as regards the probable income of the deceased, cannot be adopted in the given facts. To the contrary, the income in the given facts should necessarily be based on Exts.A7 and A10. It is true, as contended by the learned counsel for the insurance company, that Exts.A7 and A10 does not reflect a state of affairs _in praesenti._ However, there is reasonable certainty attached to Exts.A7 and A10. Balancing the equities, this Court is of the opinion that 50% of the income indicated in Ext.A7 can be reckoned, even when 'the uncertainties M.A.C.A.1303 of 2018 8 of life' canvassed by the learned counsel for the insurance company is given due credit of. Point concluded accordingly. **6.** Having fixed the notional income, the next issue is the eligibility for grant of future prospects. Learned counsel for the appellant submitted that the claimants are entitled to an addition of 50% of the income fixed towards future prospects. In support of the above proposition, learned counsel relied upon the following judgments. ## **(i) Meena Pawaia and Others v. Ashraf Ali and Others** _[2021 SCC Online SC 1083]_ ## **(ii) V.Mekala v. M.Malathi and Another** _[(2014)11 SCC 178]_ **(iii)National Insurance Company Ltd., Chennai v.** ## **Fathimath Zuhara @ Zuhara Razak and Another** _[2016 KHC 691]._ **7.** This submission was seriously opposed by the learned counsel for the respondent/insurance company. At the first instance, learned counsel submitted that the notional income claimed is very much high. It has M.A.C.A.1303 of 2018 9 to be borne in mind that the deceased was only a student and the income reckoned can only be notional, submits the learned counsel. In this regard, learned counsel would rely upon the judgment of this Court in **National Insurance Company Ltd. And Others v. K.K.Assainar and Others** _[2019(4) KLT 39]_ . Learned counsel invited the attention of this Court specifically to paragraph no.19(3), wherein, it is seen held that, no amount need be added to the notional income towards future prospects. However, learned counsel fairly pointed out that, this judgment dealt with the accidental death of children upto the age of 15 years. Learned counsel also relied upon another unreported Bench decision of this Court in M.A.C.A.No.2091 of 2013, wherein, referring to the table at paragraph no.15 of the judgment, counsel pointed out that, no amount towards future prospects was reckoned by the Division Bench. It was also pointed out that, future prospects was reckoned by the Tribunal in that case,which has been done away with by M.A.C.A.1303 of 2018 10 the Division Bench, though not specifically dealt with, except in the schedule. According to the learned counsel for the respondent/insurance company, the notional income which could be reckoned cannot be exorbitantly high, as claimed by the claimants and that, claimants are not entitled to future prospects in the case of death of a student. According to the learned counsel, any course contrary to the above proposition will amount to a windfall on the claimants on account of the death of the deceased. _**8.**_ Having heard the learned counsel appearing on both sides on the question of future prospects, this Court is of the opinion that, there is no room for any doubt as regards the entitlement of the claimants for future prospects. The issue is seen considered in detail in _Meena Pawaia supra,_ from paragragh no.11 onwards. The specific contention as noted in paragraph no.11 is that, since the deceased was not serving and earning at the time of accident/death, no amount, whatsoever, is to be added towards future prospects. M.A.C.A.1303 of 2018 11 In the same paragraph, the Honourable Supreme Court negated such contention of the Union of India. At paragraph no.12, the Supreme Court referred to the five Judges Bench decision in **National Insurance Co. Ltd. v. Pranay Sethi** _[(2017)16 SCC 680]_ and **Santosh Devi v. National Insurance Co.Ltd.** _[(2012)6 SCC 421]_ and concluded at paragraph no.13 that, once an amount is arrived at towards notional income, the claimant shall be entitled to the future prospects as well. The Supreme Court reckoned an addition of 40% of the income in the facts of that case, in terms of the judgment in _Pranay Sethi supra_ . **9. V.Mekala** _supra_ is a case of serious and substantial injury, where both legs of the claimant became dysfunctional. In that case, the Honourable Supreme Court reckoned future prospects on the monthly notional income of Rs.10,000/- fixed. A Division Bench of this Court in _Fathimath Zuhara supra_ held, in paragraph no.6, that the principle in _V.Mekala's_ case applies to the facts of the case at hand, where M.A.C.A.1303 of 2018 12 _Fathimath Zuhara_ , an engineering student, along with others, succumbed to injuries in an accident. Future prospects was reckoned at the rate of 50% as propounded in _Sarla Verma's_ case. As regards the decisions relied upon by the learned counsel for the respondent/insurance company, this Court finds that the unreported decision in M.A.C.A.2091 of 2013 cannot be pressed into service for not reckoning the future prospects since it contains no discussion, whatsoever, to that effect. The question did not fall for consideration in that case and hence, the said decision cannot be put forward as a precedent on the question whether future prospects is liable to be reckoned in the case of a student. Another decision in _K.K.Assainar supra,_ as conceded by the learned counsel for the respondent, is applicable to the children upto the age of 15 years, which is not the case in the given facts. This Court, therefore, finds that the claimants are entitled to future prospects at the rate of 40%, the deceased being aged less than 40 M.A.C.A.1303 of 2018 13 years and not having a permanent job at the time of accident. **10** _._ The next head is with respect to 'consortium'. Petitioners 1 and 2 before the Tribunal are the father and mother respectively of the deceased and third petitioner is the sister. The parents alone are entitled to consortium at the rate of Rs.40,000/each. Therefore, the consortium payable to the claimants is Rs.80,000/-, simultaneous with obliterating Rs.50,000/- granted towards loss on account of love and affection. Likewise, a sum of Rs.10,000/- granted under the head 'pain and suffering' is also not allowable, in terms of the judgment in **Oriental Insurance Company v. Kahlon [AIR 2021 SC 3913]** **11** . In the circumstances, this MACA is allowed and the compensation amount payable to the appellant/claimants are scheduled as indicated in the table herewith. M.A.C.A.1303 of 2018 14 |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| ||**Income/Notional Income**|**25,000**|**36,250**| |1|**Transport to clothing**|**7,000**|**7,000**| |2|**Damage to clothing**|**1,000**|**1,000**| |3|**Life saving medicine**|**79,159**|**79,159**| |4|**Loss of Love and Affection**|**50,000**|**Nil**| |5|**Pain and Suffering**|**10,000**|**Nil**| |6|**Loss of estate**|**15,000**|**15,000**| |7|**Funeral Expenses**|**15,000**|**15,000**| |8|**Loss of Consortium**|**-**|**80,000**| |9|**Dependency Compensation**<br>**[Future benefits]**|**34,02,000**|**49,32,900***| ||**Total**|**35,79,159**|**51,66,309**| |Amount enhanced = Rs.**54,82,409**/– Rs.**35,79,159**/ =**Rs.15,87,150/**|||| ## *** (Rs.36,250x140/100x12x18x1/2) - 10% income tax** **12** . The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be ## M.A.C.A.1303 of 2018 15 granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. Sd/- ## **C.JAYACHANDRAN** ## **JUDGE** ``` Sbna/ ```