M.A.C.A.No.1557 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934** **MACA.No. 1557 of 2007 ( ) --------------------------** **AGAINST THE ORDER/JUDGMENT IN OPMV.633/2005 of M.A.C.T. TIRUR DATED 05-03-2007** **APPELLANT(S)/PETITIONERS:** **--------------------------** **1. KARUTHEDATH KADEEJA ALIAS KADEESAI, W/O. LATE AVARANKUTTY, KARUTHEDATH HOUSE, MULLUNGAL THALAPPARA, P.O.MUNIYOOR-676311, MALAPPPURAM DISTRICT.** **2. MAJIDA NASRIN (MINOR) AGED 11 YEARS, D.O.LATE MUSTHAFA, KARUTHEDATH HOUSE, MULLUNGAL THALAPPARA, P.O.MUNIYOOR-676311, MALAPPPURAM DISTRICT.** **3. MAJID RAHMAN (MINOR) AGED 9 YEARS,S /O. LATE MUSTHAFA, KARUTHEDATH HOUSE, MULLUNGAL THALAPPARA, P.O.MUNIYOOR -676311 MALAPPURAM DISTRICT.** **4. MUFEEDHA(MINOR) AGED 3 YEARS, D/O. LATE MUSTHAFA, KARUTHEDATH HOUSE, MULLUNGAL THALAPPARA, P.O.MUNIYOOR-676311, MALAPPURAM DISTRICT.** **5. SULAIMAN,S/O.LATE MUSTHAFA, KARUTHEDATH HOUSE, MULLUNGAL, THALAPPARA P.O.MUNIYOOR-676311, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.CHANDRASEKHAR** **RESPONDENT(S)/RESPONDENTS: --------------------------** *** 1. P.P.MOOSA,** **S/O.AHMED, PARUTHIPARAMMAL HOUSE, P.O.MAVOOR KOZHIKODE-673661. (DELETED)** *** RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, VIDE ORDER DTD. 21.2.13 IN I.A.NO.411/13 IN MACA 1557/07.** ## **MACA.No. 1557 of 2007 ( )** **2. PUTHIYAVEETTIL MUHAMMED, S/O.CHEKKU KOYA, P.O. VELLIPARAMBA KUTTIKKATTUR-673008.** **3. M/S. ORIENTAL INSURANCE COMPANY LTD., SREENIDHI BUILDING, P.B.NO.27, NARAYANA NAGAR BADAGARA-673101.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Pn** ## **S.SIRI JAGAN & BABU MATHEW P.JOSEPH, JJ.** ## **------------------------------------M.A.C.A.No.1557 of 2007 -----------------------------------Dated this, the 19[th] day of March, 2013** ## **JUDGMENT ----------------** ## S.Siri Jagan,J The claimants in O.P.(M.V.)No.633/2005 of the Motor Accidents Claims Tribunal, Tirur, are the appellants herein. Musthafa, who is the son of the 1[st] appellant, the father of appellants 2 to 4 and he brother of the 5[th] appellant, died in a motor accident on 30.03.2005 on account of the negligent driving of a motor vehicle owned by the 1[st] respondent (who was subsequently deleted from the party array), driven by the 2[nd] respondent and insured with the 3[rd] respondent. The appellants filed the O.P., claiming compensation for the death of Musthafa. Musthafa was aged 34 years. He was employed in a bakery in Saudi Arabia. They produced a salary certificate showing that his monthly salary was Rs.1,000/- Saudi Rials. The claim was that converted into Indian rupees the same would come to Rs.17,000/- per M.A.C.A.No.1557 of 2007 2 month. The Tribunal after finding negligence on the part of the driver of the vehicle, assessed compensation under various heads as follows : Transport to hospital - Rs.2,500/Pain and suffering of the deceased - Rs.5,000/Loss of dependency - Rs.10,20,000/Loss of love and affection - Rs.20,000/Funeral expenses - Rs.2,500/Total - Rs.10,50,000/- The 3[rd] respondent insurance company was directed to pay the amount, since the offending vehicle was covered by a valid policy. The appellants are aggrieved by the quantum of compensation fixed by the Tribunal. According to them, the Tribunal has committed serious errors in assessing the compensation. The first contention is that the Tribunal arbitrarily reduced the monthly income to Rs.10,000/- from Rs.17,000/-. Secondly it is submitted that the Tribunal, instead of fixing a common multiplier for calculating compensation for the death of the deceased, adopted M.A.C.A.No.1557 of 2007 3 separate multipliers for dependency of the 1[st] appellant and the dependency of the children, which is not valid in law. It is submitted that the Tribunal ought to have adopted a common multiplier for calculating compensation and then apportioned the dependency separately. It is further submitted that the compensation for funeral expenses is on the lower side and no amount has been awarded for loss of estate as well. 2. On the other hand, the learned counsel for the insurance company would contend that even the amount now awarded is more than what was actually due to the appellant. It is submitted that the Tribunal could not have accepted the salary certificate, for the purpose of fixing the monthly salary. The deceased was only a bakery worker in Saudi Arabia. There is no certainty for his continued employment and it was only a contractual employment. Further, for earning that income, the deceased had to spent M.A.C.A.No.1557 of 2007 4 more than half of the amount, since the cost of living in Saudi Arabia is multifold compared to the cost of living in Kerala. That being so, even if there are some infirmities in assessing the compensation, since the amount already awarded itself is more than what was actually due to the appellant, this court should not interfere with the assessment of compensation, is the contention raised. 3. We have considered the rival contentions in detail. 4. Although, the appellants have produced a salary certificate, Ext.A11, the same has not been proved by examining somebody who is competent to prove the same. When a foreign private employer issues a certificate, stating a monthly salary, that could not have been accepted as the monthly income of the deceased. The Tribunal did the next best thing. Relying on the decision of the Supreme Court in **United India Insurance Co.Ltd. v. Patricia Jean Mahajan & Others [AIR 2002 (SC) 2607],** the Tribunal M.A.C.A.No.1557 of 2007 5 and **Dr.P.Shanmugaraj & Others v. Subramanian & Others [2007 ACJ 545],** the Tribunal came to the conclusion that the ordinary rules for fixation of monthly income for employment in Kerala, cannot be adopted for the purpose of fixing monthly income for employment in Saudi Arabia. The Tribunal came to the conclusion that the conversion value of 1000 Saudi Riyals, at the relevant time, be only Rs.10,000/- and deducted 40% from the same as personal expenses, relying on the decisions quoted above. Then out of the same, dependency of the monthly income was apportioned as Rs.1,000/- for the 1[st] appellant and Rs.5,000/- for the children. Then for the mother, the multiplier was taken as 5 and for the children multiplier was taken as 16. Although, technically, the procedure adopted by the Tribunal may not have been correct, we are of the opinion that even the fixation of monthly salary was on the higher side, considering the uncertainties of multiplier and M.A.C.A.No.1557 of 2007 6 the fact that the deceased was employed in Saudi Arabia where the economic conditions are vastly different from that in Kerala, that too only as a bakery worker is contractual employment. Therefore, even if there are some technical infirmities in calculating the compensation for the death of Musthafa, we are of the opinion that insofar as more than adequate compensation has been awarded by the Tribunal, it is not necessary to interfere with the quantum of compensation awarded by the Tribunal. Accordingly the appeal is dismissed. ## **S.SIRI JAGAN, Judge** **BABU MATHEW P.JOSEPH, Judge** AV M.A.C.A.No.1557 of 2007 7