MAICHAEL.K.U. & others v. The New India Assurance Company Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 ``` ## `MACA NO. 2845 OF 2021` ``` [AGAINST THE AWARD DATED 31.10.2018 IN OP(MV)NO.209/2017 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA] ``` ## `APPELLANTS/PETITIONERS:` ``` 1MAICHAEL.K.U., AGED 34 YEARS, S/O. MATHEW, KADENCHIRA HOUSE, POOVANCHAL, KUTTAPARAMBA P.O., KANNUR DISTRICT - 670 571. 2BINEESH MATHEW, AGED 32 YEARS, S/O. MATHEW, KADENCHIRA HOUSE, POOVANCHAL, KUTTAPARAMBA P.O., KANNUR DISTRICT - 670 571. 3VINEETHA MATHEW, AGED 30 YEARS, D/O. MATHEW, KIZHAKKE ARANJANIYIL, PERUMPADAVU, CHAPPARAPPADAVU P.O., KANNUR DISTRICT - 670 581. 4MARY, AGED 87 YEARS, W/O. MICHAEL, KADENCHIRA HOUSE, POOVANCHAL, KUTTAPARAMBA P.O., KANNUR DISTRICT 670 571. ``` ``` BY ADV M.R.JAYALATHA ``` ## `RESPONDENT/4TH RESPONDENT:` ``` THE NEW INDIA ASSURANCE COMPANY LTD., REP BY ITS BRANCH MANAGER, MICRO OFFICE, CHERUTHAZHAM, KRISHNA BUILDING, PILATHARA, PAYYANNUR, PIN - 670 501. (POLICY NO. 76081431150100000807). ``` ``` SRI.LAL K JOSEPH-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2845 OF 2021 ``` ``` -2- ``` ## `JUDGMENT` ``` The legal heirs of Mathew, who filed OP(MV)No.209/2017 before the Motor Accidents Claims Tribunal, Taliparamba (‘Tribunal’, for short), seeking compensation of an amount of Rs.20 lakhs for his unfortunate death in a road accident on 13.09.2016 – while the lorry onto which he was loading granite stones, was reversed in a careless manner by its driver, thus causing his untimely death – impugn the Award on the ground that the compensation of Rs.10,12,000/- granted is exiguous. ``` ``` 2.Smt.M.R.Jayalatha – learned counsel for the appellants, argued that the claimants had specifically pleaded and proved that the deceased was working as a headload worker in a Stone Crusher Unit; and that Ext.A6 – Salary Certificate, issued by PW1, would indubitably prove that he was earning Rs.1,000/- per day. ``` ``` MACA NO. 2845 OF 2021 ``` ``` -3- ``` ``` She submitted that, however, the learned Tribunal adopted his notional income to be a mere Rs.10,000/-, adding 10% future prospects to it; and has thus awarded a meager amount of ``` ``` Rs.9,68,0000/- as compensation, under the head “Loss of Dependency”. She concluded saying that, even though it is uncontested that the ``` ``` appellants are the mother and children of the deceased, no amount under the head “Loss of Consortium” has been granted since they are entitled to Rs.1,60,000/- under that head. She ``` ``` thus prayed that this Appeal be allowed. ``` ``` 3.In response, Sri.Lal K.Joseph – learned ``` ``` Standing Counsel for the Insurance Company, ``` ``` submitted that the evidence produced by the ``` ``` appellants, to prove the income of the deceased, is unacceptable, since it has been issued by a private entity without any corroborating proof. He thus prayed that the findings of the learned ``` ``` MACA NO. 2845 OF 2021 ``` ``` -4- ``` ``` Tribunal under that head be left undisturbed; however, arguing that, while computing the compensation under the head “Loss of Dependency”, one-half ought to have been deducted from his income as personal expenses, since only his mother and not major children can be construed to be the dependents. He thus ``` ``` prayed that this Appeal be dismissed. ``` ``` 4.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on ``` ``` record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 5.On the question of notional income of ``` ``` the deceased, I find favour with the submissions of Smt.M.R.Jayalatha because, going by the judgment of the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram ``` ``` MACA NO. 2845 OF 2021 ``` ``` -5- ``` ``` Alliance Insurance Company Ltd. [(2011) 13 SCC ``` ``` 236], even in the case of a person who is only a ‘Coolie’, or with an unascertainable income, in the year 2016 – when the accident occurred – the ``` ``` minimum figure to be adopted is Rs.10,500/-. Though Ext.A7 cannot be accepted for the purpose of proving the income of the deceased, it certainly shows that he was not working as an ordinary ‘Coolie’, but as a headload worker engaged by PW1. ``` ``` 6.As perRajani v. Oriental Insurance ``` ``` Company Limited [2022 (5) KLT OnLine 1012 (SC)], ``` ``` the Hon’ble Supreme Court has mandated that, in the case of a person who is engaged in ``` ``` technical avocation - which a headload worker certainly is - a more robust view has to be taken. I, therefore, propose that the notional income of the deceased to be reckoned as Rs.11,000/- per month, which is a mere Rs.500/- ``` ``` MACA NO. 2845 OF 2021 ``` ``` -6- ``` ``` more than what has been authorized by Ramachandrappa(supra). To this, certainly, ``` ``` future prospects at the rate of 10% has to be added; which then leads me to the question whether more than one-third of it, must be ``` ``` deducted as personal expenses of the deceased. ``` ``` 7.In this regard, the pleadings on record ``` ``` are unequivocally to the effect that all the appellants were dependend upon the deceased at the time of his death. Merely because appellants 1 to 3 are in the age bracket of 32 to 28, it does not mean that it can be automatically presumed and presupposed that they were not financially dependend upon him. In the absence ``` ``` of any evidence to prove to the contrary, I have no doubt that all the appellants will have to be treated as the dependents of the deceased and hence that, normally, an amount equal to one- fourth alone could have been deducted; but in ``` ## `MACA NO. 2845 OF 2021` ``` -7- ``` ``` this case, taking note of the afore arguments, I deem it appropriate to confirm the deduction made by the Tribunal, namely, to one-third. ``` ``` 8.That said, there can be no doubt that ``` ``` all the appellants – who are the mother and ``` ``` children of the deceased – are entitled to ``` ``` Rs.40,000/- each under the head “Loss of Consortium”. I fail to understand why the ``` ``` learned Tribunal has denied it. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a) The compensation under the head “Loss ``` ``` of Dependency” is enhanced to Rs.10,64,800/- ``` ``` (Rupees ten lakhs sixty four thousand eight ``` ``` hundred only), from Rs.9,68,000/-, reckoning the ``` ``` notional income of the deceased to be ``` ``` Rs.11,000/- per month, with 10% future prospects ``` ``` added to it and one-third deducted towards ``` ``` personal expenses. ``` ``` MACA NO. 2845 OF 2021 ``` ``` -8- ``` ``` (b) An amount of Rs.1,60,000/- (Rupees one lakh sixty thousand only) is additionally awarded to each of the appellants under the head ``` ``` “Loss of Consortium” at the rate of Rs.40,000/- ``` ``` in terms of National Insurance Company Ltd. v. ``` ``` Pranay Sethi [2017 (4) KLT 662)]. ``` - `(c) In all other heads, the compensation` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the appellants will be at full ``` ``` liberty to recover the compensation, as enhanced ``` ``` by this Court, from the Insurance Company, along ``` ``` with interest at the rate of 8%, as awarded by ``` ``` the Tribunal, from the date of claim until it is recovered.They will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` Needless to say, while calculating interest on the amount enhanced by this Court, a period of 400 days - being the delay in filing this ``` ``` MACA NO. 2845 OF 2021 ``` ``` -9- ``` ``` Appeal – shall stand excluded. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```