MACA.No. 1931 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 7TH DAY OF NOVEMBER 2017 / 16TH KARTHIKA, 1939 ## **MACA.No. 1931 of 2013** AGAINST THE AWARD IN O.P(M.V)No.963/2007 of MACT, MUVATTUPUZHA DATED 11-06-2013 ## **APPELLANTS** /PETITIONERS 1 TO 4 1 MYTHEEN, S/O.MUHAMMED PULLOLICKAL @ PULLOLIL HOUSE, KOOVALLOOR PO, MADIYOOR KARA, POTHANICAD VILLAGE. 2 SHEREEFA, W/O.MYTHEEN PULLOLICKAL @ PULLOLIL HOUSE, KOOVALLOOR PO, MADIYOOR KARA, POTHANICAD VILLAGE. 3 RAFEEQUE, S/O.MYTHEEN PULLOLICKAL @ PULLOLIL HOUSE, KOOVALLOOR PO, MADIYOOR KARA, POTHANICAD VILLAGE. 4 ABBAS, S/O.MYTHEEN PULLOLICKAL @ PULLOLIL HOUSE, KOOVALLOOR PO, MADIYOOR KARA, POTHANICAD VILLAGE. BY ADVS.SRI.T.K.KOSHY SRI.ABE RAJAN ## **RESPONDENTS** /RESPONDENTS 1 TO 3: 1. SIJO SKARIA KAUNGAMPILLIL HOUSE, PINDIMANA PO, KOTHAMANGALAM PIN-686 692. 2. SUNNY JOSEPH PARANAYIL HOUSE, PINDIMANA KARA, NEAR MALIPPARA CO-OPERATIVE SOCIETY, PINDIMANA VILLAGE, KOTHAMANGALAM PIN-686 692. 3. THE NEW INDIA ASSURANCE CO. LTD. MUVATTUPUZHA, PIN-686 661. R3 BY ADV. SRI.RAJAN P.KALIYATH BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** ------------------------------------ M.A.C.A.No.1931 of 2013 -----------------------------------Dated 7[th] November, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment and award dated 11.6.2013 in O.P.(M.V)No.963 of 2007 passed by the Motor Accidents Claims Tribunal, Muvattupuzha. The appellants were the claimants. They are the legal heirs of the victim of the accident involved therein. The deceased Ansar was riding his motorcycle bearing Reg.No.KL-17/C-2391 through Kothamangalam-Muvattupuzha public road. On that fateful day, at the place of the incident, the said vehicle was hit by a car bearing Reg.No.KL-/X-2200, driven by the second respondent. Enroute to the hospital he succumbed to the injuries. It is in the said circumstances that the claim petition was filed by the appellants herein, under Section 166 of the Motor Vehicles Act, seeking a compensation of ₹60,00,000/-. Before the Tribunal, one Chandramohanan was examined as PW1 and the 4[th] appellant herein was examined as PW2. Exts.A1 to A24 were got marked on the side of the appellants. On the side of the respondents no oral evidence was adduced and the policy of the car involved in the accident was marked M.A.C.A.No.1931 of 2013 2 as Ext.B1. On evaluating the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award whereby and whereunder an amount of 18,72,000/- was granted as compensation₹ with interest at the rate of 7% per annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. ## 2. Heard. 3. The main grievance of the appellants is that the Tribunal had erroneously estimated the monthly income of the deceased Ansar for calculating compensation for loss of dependency. It is the contention that in the claim petition it was specifically averred that Ansar was working in Arabian Drilling Company which is a private company in Saudi Arabia engaged in extraction of oil. It was also averred therein that he was an electrician attached to the said company and was getting a monthly salary of 42,000/-. The learned counsel for₹ the appellants contended that to establish such averments regarding the occupation and income the appellants had produced Exts.A9 to A24 besides getting examined PWs 1 and 2. PW1 is the Manager of Adivad branch of Canara Bank wherein the deceased was maintaining an account. It is to be noted that while being examined as PW1, the Manager of the said bank was not in a position to say, with certitude, as to whether the transactions in the account were exclusively related to M.A.C.A.No.1931 of 2013 3 his pay and allowances during the relevant period. During cross examination he deposed that he did not know whether the amount sent by deceased Ansar in his account exclusively related to his pay and allowances during the relevant period. PW2 is none other than the younger brother of the deceased. He would also depose that he did not know whether the amount sent by Ansar in his account exclusively related to his pay and allowances during the relevant period. There is no case for the appellants that the occupation as also the income of the deceased was established by getting it authenticated by the Embassy concerned, in the manner provided under law. True that, the appellants had produced certain documents including the salary slip, contract of employment etc. It is also true that they had also produced extract of the bank account covering the period from 1.1.2007 to 14.7.2007 and from 22.10.2005 to 12.3.2007 issued from Adivad branch of Canara Bank. The question therefore is whether the Tribunal could be held to have gone wrong in declining to accept the aforementioned documents as the basis for fixing the monthly income of the deceased and in fixing it notionally. As noticed hereinbefore, the documents viz., Exts.A9 to A24 would not reveal that the deceased was having a regular employment abroad. Even going by the case of the appellants, he was only having a contract employment. The witnesses examined on behalf of the appellants could not say with definiteness that even amounts that M.A.C.A.No.1931 of 2013 4 were raised in the account maintained by the deceased related exclusively to his pay and allowances during the relevant period. The said aspect was specifically considered by the Tribunal, as can be seen from paragraph 9 of the impugned judgment. The learned counsel appearing for the appellants contended that the fact that the deceased was trained and thereby gained experience in drilling and therefore, he was a qualified electrician was virtually ignored by the Tribunal. As noticed hereinbefore, they would only go to show that he was a qualified person. It would not give any indication regarding the nature of the employment as also the actual income which he was getting at the relevant point of time. In the light of the evidence on record, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income of the deceased notionally. 4. A scanning of the impugned judgment would reveal that the Tribunal had fixed the notional income of the deceased as ₹12,000/-. Taking into account the future prospects the Tribunal had made an addition of 50% to the income thus fixed. In the absence of any independent appeal or a cross objection from the respondents we do not think it necessary to look into the question whether the addition made by the Tribunal reckoning the future prospects is correct or not. At the same time, we have already taken note of the fact that the appellants had failed to establish before the Tribunal that the deceased M.A.C.A.No.1931 of 2013 5 was in regular employment abroad. In such circumstances, it has to be taken that for all calculation purposes 18,000/- has to be taken as the₹ monthly income. Fixation of 18,000/- as the monthly income of the₹ deceased, in the aforesaid circumstances, cannot be said to be on the lower side warranting an interference. True that, after taking the income thus, the Tribunal deducted 50% for calculation purpose. The said deduction was made by taking into account the decision of the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ . Evidently, such a deduction was made towards the personal and living expenses of the deceased. Going by the decision in **Sarla Verma's** case (supra), in respect of a bachelor, for whose death a claim petition was filed under Section 166 of the Motor Vehicles Act, while considering the contribution to the family 50% has to be deducted towards his personal and living expenses. Hence, deduction of 50% cannot be said to be illegal warranting interference. The multiplier was adopted by the Tribunal as `17'. When the age of the deceased was claimed as 26, identification of the multiplier cannot be said to be wrong in the light of the schedule given in **Sarla Verma's** case (supra). Having held thus, we will now proceed to consider whether the appellants are entitled to get additional compensation under any other heads. Towards loss of love and affection, the Tribunal has granted an amount of 20,000/-, evidently, 10,000/- each to₹ ₹ M.A.C.A.No.1931 of 2013 6 appellants 1 and 2. Appellants 1 and 2 are the parents. True that, they lost their son. As regards appellants 3 and 4, they are the siblings of the deceased Ansar. It cannot be said that they had not lost the love and affection of their brother. There was absolutely no reason for declining to grant compensation for loss of love and affection to appellants 3 and 4. In the said circumstances, we are inclined to grant an amount of 20,000/- each to the appellants. Since the Tribunal has₹ already granted an amount of 20,000/- thereunder, we are inclined to₹ grant an amount of 60,000/- additionally. Towards funeral expenses,₹ only an amount of 5,000/- was granted. In the light of the decision of₹ the Hon'ble Apex Court in **National Insurance Company Limited v. Pranay Sethi (2017 (4) KLT 662 (SC)),** we are inclined to grant an amount of 10,000/- more under that head. In the light of the said₹ decision, the appellants are also entitled to get an amount of 10,000/-₹ additionally towards loss of estate. Towards pain and sufferings only ₹5,000/- was granted as against a claim of 10,000/-. As noticed₹ hereinbefore, Ansal had lost his life enroute to the hospital after sustaining the injuries. In such circumstances, we are inclined to grant ₹5,000/- more under the head pain and sufferings. 5. In the light of the discussion as above, an additional compensation of 85,000/- is granted to the appellants. The said₹ compensation will carry interest at the rate of 8% per annum from the M.A.C.A.No.1931 of 2013 7 date of the petition till realisation. In view of the absence of any dispute regarding the liability to indemnify the insured owner of the offending vehicle, the third respondent insurance company is directed to deposit the additional compensation along with interest thereon, within a period of one month from the date of receipt of a copy of this judgment. The appeal is disposed of accordingly. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **B.SUDHEENDRA KUMAR Judge** TKS