Marikutty and Mobin v. Surendren V Kavery Veedu and New India Assurance Co.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939** **MACA.No. 1423 of 2013 -------------------------** **AGAINST THE AWARD IN OP(MV).139/2006 of MACT,PATHANAMTHITTA DATED 19-01-2013** ## **APPELLANTS/PETITIONERS:** ## **-------------------------** - **1. MARIKUTTY, AGED 49 YEARS** **W/O.BABY, KOCHUTHUNDIYIL KIZHAKKETHIL VEEDU KURAMPALA.P.O., PANDALAM, PATHANAMTHITTA DISTRICT.** **(FIRST APPELLANT IS RECORDED AS THE SOLE LEGAL HEIR OF DECEASED SECOND APPELLANT AS PER ORDER DATED 20.7.2016 IN MACA 1423/13).** **2. MOBIN, AGED 21 YEARS, S/O.BABY, KOCHUTHUNDIYIL KIZHAKKETHIL VEEDU, KURAMPALA.P.O. PANDALAM, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. SURENDREN.V KAVERY VEEDU, SREENIVASAPURAM.P.O., VARKALA THIRUVANANTHAPURAM. PIN-695 145.** **2. NEW INDIA ASSURANCE COMPANY** - **PATHANAMTHITTA BRANCH, REP. BY BRANCH MANAGER PIN-689 645.** **R2 BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. ----------------------------------------------M.A.C.A.No.1423 of 2013 ----------------------------------------------Dated this the 24[th] day of May, 2017** ## **J U D G M E N T** ## **Anil K.Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Pathanamthitta, dated 19.1.2013 in O.P.(MV)No.139/2006, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Baby Yohannan, husband of the 1[st] appellant and father of the 2[nd] appellant (who was later deleted from the party array on his death, by order dated 20.7.2016), in a motor accident occurred on 10.8.2005 involving a motor car bearing registration No.KL-01/B-8454 owned by the 1[st] respondent and insured with the 2[nd] respondent. The Tribunal by the impugned award, awarded a total compensation of ₹7,84,600/- under different heads together with interest at the rate of 7.5% per annum from the date of petition, i.e., 13.2.2006 till realisation with proportionate cost and directed the 2[nd] respondent, the insurer of offending vehicle, to pay the amount of compensation. M.A.C.A.1423/13 :-2-: 2. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, this appeal was originally filed by the 1[st] appellant along with her son. During the pendency of this appeal, the 2[nd] appellant died and the 1[st] appellant was recorded as the sole legal heir of the 2[nd] appellant by order dated 20.7.2016. 3. We have heard the arguments of learned counsel for the appellant and also the learned counsel for the 2[nd] respondent insurer. 4. Going by the averments in the claim petition, the deceased sustained fatal injuries in a motor accident occurred on 10.8.2005 involving a motor car bearing registration No.KL01/B-8454 owned by the 1[st] respondent and insured by the 2[nd] respondent. While the deceased was travelling in a motor car bearing registration No.KL-07/C-2135, an Ambassador car bearing registration No.KL-01/B-8454 driven by its driver in a rash and negligent manner hit the motor car and the deceased sustained fatal injuries. Within an hour of the accident, the deceased succumbed to the injuries. The appellants filed claim petition before the Tribunal, claiming a total compensation of ₹35,00,000/- under different heads. M.A.C.A.1423/13 :-3-: 5. Before the Tribunal, the 1[st] and 2[nd] respondents filed separate written statements denying the negligence alleged against the driver. The 2[nd] respondent/insurer admitted the insurance coverage of the offending vehicle. 6. Before the Tribunal Pws.1 and 2 were examined on the side of the claimants and Exts.A1 to A12 were marked on their side. The respondents have not chosen to adduce any oral or documentary evidence. 7. After considering the evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the offending vehicle by its driver. Since the vehicle was covered by a valid insurance policy, the 2[nd] respondent-insurer was held liable to indemnify the 1[st] respondent owner. 8. The compensation awarded by the Tribunal under different heads is as under:- |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded in ₹.|Basic vital<br>details| |---|---|---|---|---| |1|Loss of Dependency|0|7,17,600|55200x13| |2|Transport to Hospital|1000|1000|| |3|Extra nourishment|0|0|| |4|Damage to clothings|1000|1000|| M.A.C.A.1423/13 :-4-: |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded in ₹.|Basic vital<br>details| |---|---|---|---|---| |5|Funeral expenses|23000|10000|| |6|Pain and suffering endured<br>bydeceased|25000|0|| |7|Compensation for loss of<br>estate|200000|15000|| |8|Loss of consortium|25000|10000|Petitioner No.1| |9|Loss of love and affection|50000|30000|15000 each to<br>petitioners No.1<br>& 2| |10|Compensation for loss<br>family support and earning<br>power|3175000|0|| ||TOTAL|3500000|784600|| 9. In the claim petition, it was contended that the deceased was a Seaman working in Dubai having a monthly income of 1,617/- Dirhams. In order to substantiate the said contention, Ext.A8 salary certificate issued from Albwardy Marine Engineering LIC and Ext.A9 statement of accounts issued from the Catholic Syrian Bank Limited were produced. The Bank Manager was examined as PW2 in order to prove Ext.A9 statement of accounts. However, there was absolutely no reliable materials before the Tribunal either to prove the educational qualification of the deceased or his nature of employment. There was also no reliable materials to prove the M.A.C.A.1423/13 :-5-: income earned by the deceased at the time of the incident. It was in such circumstances, that the Tribunal fixed the monthly income of the deceased notionally at 6,000/-.₹ 10. In **Abraham Jacob v. Mubarak (2014(3) KLT 883)** , this Court held that a salary certificate, even if authenticated in accordance with Section 3 of Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, cannot be relied upon for calculating compensation, if the certificate does not contain details such as nature of employment, date of entry in service, etc. Paragraph 14 of the said judgment thus reads as follows: “14. In Jiju Kuruvila's case (supra) Ext.A6 certificate issued by the employer showed that, the deceased was in the employment of Freeman Management Corporation, USA, for 9 years and that employment was of a permanent nature the deceased would have continued in service upto the age of 65 years. But, in the case on hand, there is nothing in Ext.A4 certificate to show that the employment of the appellant, who was aged 48 years at the time of accident, was of a permanent nature and that, but for the accident he would have continued in employment upto 60 or 65 years. Neither the nature of employment nor the date of entry in service is mentioned in Ext.A4 certificate. As rightly contended by the learned Standing Counsel for the 3[rd] respondent, relying on the judgment of this Court in Valsamma v. Binu Jose (2014 (1) KLT 10), in the case of a non-permanent employment in Gulf countries with uncertainty regarding continuance, it is not safe to rely on that income as the basis for calculating the compensation payable under different heads. Moreover, the appellant, who is only a Postgraduate in Botany, has no case that he had acquired any prior experience or special qualification to hold the post of Sales Manager in engineering and contract field. In such circumstances, though M.A.C.A.1423/13 :-6-: Ext.A4 is a document authenticated in accordance with Section 3 of the Act, we find ourselves unable to take the monthly income of Qatari Riyal 10,000/- (equivalent to Indian Rupee 1,15,000/-) shown in that certificate as the basis for calculating the compensation payable under different heads.” 11. Therefore, in the absence of any reliable materials, the notional fixation of monthly income made by the Tribunal at ₹6,000/- warrants no interference in this appeal. 12. After fixing the notional monthly income of the deceased at 6,000/-, the Tribunal added 30% towards future₹ prospects, considering the fact that at the time of accident the deceased was aged 49 years. Accordingly, the Tribunal fixed the notional monthly income of the deceased at 7,800/-.₹ However, the Tribunal reckoned only ₹6,900/as the multiplicand, taking an average of 6,000/- and 7,800/-. The₹ ₹ said procedure adopted by the Tribunal while fixing the multiplicand in the case of the deceased warrants interference. Once the Tribunal finds that the claimants are entitled for computation of compensation with 30% future prospects, the multiplicand should be the notional monthly income plus 30% towards the future prospects. If that be so, the multiplicand in the instant case should be 7,800/- and not 6,900/-. Therefore,₹ ₹ M.A.C.A.1423/13 :-7-: the dependency compensation will have to be re-assessed taking the multiplicand as 7,800/-, instead of 6,900/-.₹ ₹ 13. Reckoning the multiplicand as 6,900/- and₹ applying the multiplier '13' and deducting 1/3[rd] towards the personal expenses of the deceased, the Tribunal awarded a sum of 7,17,600/- as compensation for loss of dependency. By₹ reckoning 7,800/- as the multiplicand, the appellants/claimants₹ are entitled for a sum of 8,11,200/- (7,800x12x13x2/3) under₹ this head. After deducting 7,17,600/- awarded by the₹ Tribunal under this head, the appellants will be entitled for an additional compensation of ₹ **93,600** /-. 14. Towards funeral expenses, the Tribunal awarded a sum of 10,000/-. In ₹ **Rajesh v. Rajbir Singh [2013(3) KLT 89 (SC)]** , the Apex Court has re-fixed the compensation payable under this head at 25,000/-. In such circumstances, the amount₹ payable under the head funeral expenses will have to be re-fixed at 25,000/-. In the result, the appellant will be entitled for an₹ additional compensation of ₹ **15,000** /- under this head. 15. Towards 'pain and suffering', no amount was awarded by the Tribunal. Considering the nature of injuries sustained and the fact that the deceased succumbed to injuries after one M.A.C.A.1423/13 :-8-: hour of the accident, we deem it appropriate to grant a sum of ₹ **10,000** /- as compensation under the head 'pain and suffering'. 16. Towards 'loss of consortium', the 1[st] appellant, the widow, was granted only a sum of 10,000/-. In view of the law₹ laid down by the Apex Court in **Rajesh's case** (supra), the compensation under this head will have to be re-fixed at ₹1,00,000/-, resulting an additional compensation of ₹ **90,000** /- to the 1[st] appellant. 17. Towards 'loss of love and affection', the Tribunal awarded a sum of 30,000/- at the rate of 15,000/- for the 1₹ ₹ st appellant, who was the widow and to the 2[nd] appellant, who was the son of the deceased. Once compensation is granted under the head 'loss of consortium', the widow of the deceased is not entitled for any further compensation under the head 'loss of love and affection', as held by a Division Bench of this Court in **Sheela O.K. and others v. New India Insurance Co. Ltd.** **(2016(5) KHC 427)** . As such, the compensation under the said head is payable only to the 2[nd] appellant who was the son of the deceased. However, since the 2[nd] appellant is no more, the 1[st] appellant will be entitled to get the additional compensation awarded under this head. M.A.C.A.1423/13 :-9-: 18. In **Rajesh's case** (supra), the Apex Court granted compensation under the head 'loss of love and affection' at ₹1,00,000/-. That was a case in which the deceased was survived by two children. In the instant case, since the deceased was survived only by one child, the compensation under the head 'loss of love and affection' is re-fixed at ₹50,000/-. In the result, the appellant will be entitled for an additional compensation of ₹ **20,000** /- under this head. 19. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which requires no interference in this appeal. In the result, the appellant will be entitled for an additional compensation of ₹ **2,28,600** /- (93,600+15,000+10,000+90,000+ 20,000) in this appeal. 20. This appeal was filed with a delay of 58 days. For condonation of the delay, C.M.A.No.1715/2013 was filed. However, the appellant has not taken any earnest efforts to complete service of notice on the 1[st] respondent. Due to the inordinate delay on the part of the appellant in taking steps against the 1[st] respondent, this Court, by order dated 20.7.2016 made it clear that, in case the appellants succeed in the appeal, M.A.C.A.1423/13 :-10-: they should be denied interest on the enhanced compensation, if any, awarded by this Court during the period from 31.5.2014 till 20.7.2016. In such circumstances, the appellants will be entitled for interest for the additional compensation awarded in this appeal from the date of petition till realisation, after excluding the aforesaid period specified in the order dated 20.7.2016. In the result, this appeal is allowed by awarding an additional compensation of 2,28,600/- to the 1₹ st appellant/1st claimant which will carry interest at the rate of 8% per annum from the date of petition till realisation excluding the aforesaid period from 31.5.2014 till 20.7.2016. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **JUDGE** ## **ANIL K.NARENDRAN** ami/24.5.17 //True copy// P.A.to Judge