Meera (Appellant) and Elvin (Minor) v. Thyagu, Sunilkumar, The Oriental Insurance Company Ltd. and Mary; MACA No. 85 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA,** **1943** **MACA NO. 85 OF 2013** **AGAINST THE JUDGMENT DATED 24.04.2012 IN OP(MV).NO. 795/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANTS/PETITIONERS 1 AND 2:** 1 MEERA AGED 36 YEARS W/O LATE VARGHESE, THANNIPILLY (H), NAYARAMBALAM POST, ERNAKULAM AND PRESENTLY RESIDING AT PALAMUTTIL HOUSE, LOTUS ROAD, NJARAKKAL, ERNAKULAM-682 505. 2 MINOR ELVIN, AGED 11 YEARS, S/O. LATE VARGHESE, THANNIPILLY (H), NAYARAMBALAM POST, ERNAKULAM AND PRESENTLY RESIDING AT PALAMUTTIL HOUSE, LOTUS ROAD, NJARAKKAL, ERNAKULAM-682 505. BY ADVS. SRI.K.L.NARASIMHAN SRI.N.KRISHNA PRASAD SRI.A.MOHAMMED FAIZAL ## **RESPONDENTS/RESPONDENTS IN OP(MV) & PETITIONER NO.3:** 1 THYAGU, S/O SHANMUKHAN, PONATH HOUSE, ELAMKUNNAPPUZHA-682 503. 2 SUNILKUMAR, SON OF SOMAN, VAYALIN HOUSE, CHERAI POST-683 514. 3 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE II,JEWEL ARCHADE, LAYAM ROD, COCHIN-682 011. M.A.C.A.No.85/2013 2 4 MARY, AGED 74 YEARS, MOTHER OF LATE VARGHESE, THANNIPILLY (H), NAYARAMBALAM POST, ERNAKULAM-682509. BY ADVS. FOR R3 K.S.SANTHI SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.85/2013 3 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.85 of 2013_ ================================ _Dated this the 16[th] day of November, 2021_ ## _**J U D G M E N T**_ This is an appeal preferred by petitioners 1 and 2 in O.P(MV).No.795/2006 on the file of the Motor Accident Claims Tribunal, North Paravur by arraying original respondents and petitioner No.3 as respondents herein. 2. Heard both sides. 3. The precise allegation in this case is that one Varghese, aged 36 years, died in consequence of a motor accident occurred on 18.08.2006 while he was riding motorcycle bearing Reg.No.KL 7/AL-2261 from south to north through VypinMunambam road. The specific case put up by the appellants before the Tribunal is that the above said Varghese was hit down by a bus bearing Reg.No.KL7/BC-8162 driven by the 2nd respondent in a rash and negligent manner, came from the opposite direction. Accordingly, the petitioners/appellants, who M.A.C.A.No.85/2013 4 are wife, child and mother, filed petition under Section 166 of the Motor Vehicles Act claiming compensation to the tune of Rs.36 lakhs. 4. Respondents 1 and 2 remained exparte. 3rd respondent insurance company filed written statement admitting the policy while disputing the quantum. 5. The Tribunal marked Exts.A1 to A10(a) on the side of the appellants. No documents marked on the side of the respondents. After appraising the evidence, the Tribunal granted Rs.16,18,000/- as against the claim of Rs.36 lakh. 6. While assailing the veracity of the award, the learned counsel for the appellants would urge that the Tribunal went wrong in fixing the monthly income of the deceased at Rs.12,000/- though it has been specifically claimed in the petition that the deceased was getting monthly salary of Rs.28,000/- by working as Civil Estimator in Saudi Arabia. The learned counsel for the appellants read out para.13 of the award discussing Exts.A6 to A10 documents narrating the income claimed by the appellants. According to the learned counsel for the appellants, M.A.C.A.No.85/2013 5 there is no reason to disbelieve the income stated in Ext.A8 certificate as deposed by PW1 and supported by other documents. 7. Disspelling this argument, the learned counsel for the insurance company would submit 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. On perusal of the decision reported in [2014 (3) KLT 883], _**Abraham Jacob v. Mubarak**_ , it was held after referring to [2013(3) KLT 261 (SC)], _**Jiju Kuruvila v. Kunjujamma Mohan**_ and [2014(1) KLT 10], _**Valsamma v. Binu Jose**_ , as under: _In Jiju Kuruvila's case (2013 (3) KLT 261 (SC)) 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 3rd respondent, relying on the judgment of this Court in Valsamma v. Binu Jose (2014 (1) KLT 10), in the case of a nonpermanent 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_ M.A.C.A.No.85/2013 6 _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 Ext.A4 is a document authenticated in accordance with S.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._ 8. The dispute centers on the point that what actually is the monthly income to be fixed in this particular case taking note of the available evidence. Though Ext.A8 certificate was produced before the Tribunal showing the monthly income of the deceased at 2350 Saudi Rial equivalent to Rs.25,000/-, the author of the document was not examined. Examination is a difficult task too. Apart from Ext.A8 showing the monthly income as 2350 Saudi Rial, Ext.A8 further would reveal that Varghese had availed vacation from 24th July, 2006 to 4th September, 2006 and the accident occurred on 18.08.2006, in between the said period. Ext.A6 would go to show that Varghese had re-entry visa in consonance with the statement in Ext.A8. Further Ext.A10 NRI account opening form would disclose that he used to transfer Rs.16,000/- (average) per month to his wife's bank account and he had worked from 2004 to 24.07.2006. M.A.C.A.No.85/2013 7 9. When the learned counsel for the appellants was asked to justify the employment as Civil Draftsman with the aid of educational qualification, the learned counsel for the appellants conceded that no documents to the educational prove qualification of the deceased was produced before the Tribunal or before this Court. 10. While crystallising the issue as to what ought to be the monthly income fixed by the Tribunal, the first point in mind is the educational qualification of the deceased to do the job of Civil Draftsman. Nothing is available in this regard before this Court. However, the other documents would go to show that he had worked as a Civil Estimator for a period of about 10 years and his bank statements also would substantiate transfer of money to his family. However, the Tribunal fixed the income at Rs.12,000/after discussing the evidence of PW1, the wife of the deceased and PW2, the bank manager, who deposed about transfer of money in the name of his wife. Though Ext.A8 would suggest the monthly income as 2350 Saudi Rial, PW1 given evidence that the same would come to Rs.25,000/- and the learned counsel for the M.A.C.A.No.85/2013 8 appellants canvassed the said amount as the monthly income for the purpose of fixing loss of dependency income. Here two things are of subtle importance: Firstly, document showing the income, in fact, not proved as mandated under the Evidence Act. Secondly, no documents produced to prove the educational qualification of the deceased to do the job of Civil Estimator as contended. However, on totally weighing the documents produced to support the income, I am of the view that the income required to be increased from Rs.12,000/- to Rs.15,000/- for the purpose of fixing the loss of dependency in the given case in view of the document supporting genesis of the income as contended, to a greater extent. Thus the monthly income for the purpose of calculating disability income is fixed as Rs.15,000/-. Since the deceased was in the age group of below 40 years, 40% addition towards future prospects as per the decision reported in [(2017) 16 SCC 680], _**National Insurance Company Limited v. Pranay Sethi & Ors.**_ required to be made and therefore the monthly income would come to Rs.15,000/- + Rs.6,000/- (15000X40%)= Rs.21,000/-. Hence the loss of dependency would come to: M.A.C.A.No.85/2013 9 21000 X 12 X 16 X 2/3 = Rs.26,88,000/-, out of which Rs.16,18,000/- was granted by the Tribunal. Hence **Rs.10,70,000/** - (Rupees Ten lakh seventy thousand only) **more** is granted under the head **loss of dependency** . The learned counsel for the appellants canvassed increase under the conventional heads following the ratio in _**Pranay Sethi**_ 's case ( _supra_ ). But the learned counsel for the insurance company canvassed deduction under the head pain and suffering and loss of love and affection following the ratio in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur**_ . Therefore, following the ratio in _**Pranay Sethi**_ 's case ( _supra_ ), **Rs.5,000/- more** is granted under the head **funeral expenses** excluding Rs.10,000/- granted by the Tribunal. Towards loss of consortium, Rs.20,000/- was granted by the Tribunal though the petitioners together are entitled to get Rs.1,20,000/-. Therefore, **Rs.1 lakh more** under the head **loss of consortium** is granted. Similarly, following the ratio in _**Satinder Kaur** 's case (supra)_ , Rs.20,000/- granted under the head loss of love and affection and Rs.15,000/- granted under the head pain and suffering are impermissible and hence M.A.C.A.No.85/2013 10 ## **Rs.35,000/-** is **deducted** . 11. In the result, the appeal is allowed in part. It is held that the appellants/petitioners are entitled to get Rs.11,40,000/(Rupees Eleven lakh forty thousand only) as enhanced compensation and the award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation, excluding the period of 154 days in filing this appeal as ordered in the order dated 16.11.2021 in C.M.Appl.No.78 of 2013 in M.A.C.A.No.85 of 2013. The insurance company is directed to deposit the same in the name of the appellants in the proportion fixed by the Tribunal within two months from today and the appellants are at liberty to release the same, on deposit. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ ## _rtr/_