Mini, Nandu Krishna and Naveen Krishna v. Biju S/o Sukumaran and Shine Mathew and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940** ## **MACA.No. 1346 of 2015** **AGAINST THE AWARD IN OPMV 135/2010 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA DATED 11-07-2014** **APPELLANT/PETITIONERS IN THE O.P (M.V):** - **1 MINI, AGED 43 YEARS W/O.BALAKRISHNA PILLAI, POTHANIKATTU (H)KALAPRA KARA, KUDAYATHOR VILLAGE,THODUPUZHA TALUK.** - **2 NANDU KRISHNA, AGED 17 YEARS S/O.BALAKRISHNA PILLAI, POTHANIKATTU (H),KALAPRA KARA, KUDAYATHOOR VILLAGE,THODUPUZHA TALUK, (DATE OF BIRTH: 21.3.1998).** - **3 NAVEEN KRISHNA, AGED 13 YEARS S/O.BALAKRISHNA PILLAI, POTHANIKATTU (H)KOLAPRA KARA, KUDAYATHOOR VILLAGE,THODUPUZHA TALUK, (DATE OF BIRTH: 30.11.2001)(APPELLANTS 2 AND 3 ARE MINORS REPRESENTED BY THEIRMOTHER MINI, W/O.BALAKRISHNA PILLAI)** **BY ADV. SRI.BINNY THOMAS** ## **RESPONDENT/RESPONDENTS 1,2,3 IN O.P (MV):** - **1 BIJU S/O.SUKUMARAN, POMALIL (POOVATHUNKAL) HOUSE,MANGATTUKAVALA THODUPUZHA EAST P.O., THODUPUZHAVILLAGE.** - **2 LT.CO. MRS. SHINE MATHEW WO.JOSE JOSEPH KUNNTAHUSSERIYIL HOUSE, KALIYAR P.O.,THODUPUZHA.** - **3 THE NEW INDIA ASSURANCE CO.LTD REPRESENTED BY ITS MANAGER, ERNAKULAM.** **BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 1346 of 2015** **2** ## JUDGMENT This appeal is directed against the award dated 11.07.2014 in O.P.(MV) No.130/2010 of the Motor Accident Claims Tribunal, Thodupuzha (for short 'the Tribunal'). 2. The appellants are the petitioners before the Tribunal. The challenge against the impugned award was solely based on the meagreness and inadequacy in the compensation awarded by the Tribunal. 3. Sri.Binny Thomas, the learned counsel advanced arguments on behalf of the appellants and Sri.Rajan Kaliyath, advanced arguments on behalf of the 3[rd] respondent insurer. Before adverting to the rival arguments put forth by the respective counsel, a conspectus of the facts is required to be stated: One Mr.Balakrishna Pillai while riding his scooter bearing registration No.KL 38/8678 through Thodupuzha- Moolamattom road was hit by a car bearing registration No. KL 43/708 at Mrala. The accident was occurred due to the rash and negligent driving by its driver. Sri.Balakrishna Pillai sustained fatal injuries and while being transported to Chazhikattu **MACA.No. 1346 of 2015** **3** Hospital,Thodupuzha, he succumbed to the injuries. Alleging that the accident as occurred due to rash and negligent driving of the car by its driver and claiming for a total sum of Rs.28,00,000/-, as compensation the claim petition as above was preferred before the Tribunal by the legal heirs and dependants of the deceased. The driver, owner and insurer of the car, the insurer of the motor cycle and the mother of the deceased were arrayed respectively as respondents 1 to 4 and additional respondent No.5 in the claim petition. The driver and owner of the car remained ex parte. 4. The insurer of the car, the sole contesting respondent, had filed written statement admitting insurance coverage of the same with them as on date of accident. It was contended that the accident was occurred due to the negligence of the deceased and not due to the negligence of the 1[st] respondent, who was driving the car at the relevant time. The age, occupation and income of the deceased were also disputed. 5. The 3[rd] respondent has also filed written statement before the Tribunal admitting insurance coverage of the motorcycle ridden by the deceased as on date of accident. It was contended **MACA.No. 1346 of 2015** **4** that the accident was occurred due to the negligence of the driver of the car, who was arrayed as the 1[st] respondent. The age, occupation and income of the deceased were also disputed. 6. The claim petition was tried by the Tribunal. On the side of the petitioners, witnesses were examined as PWs 1 to 5 and documents were marked as Exts.A1 to A12. On the side of the contesting respondents, neither oral nor documentary evidence was adduced. 7. On appreciation of the evidence on record, the Tribunal found the 1[st] respondent, the driver of the car, liable to cause the accident by his rash and negligent driving. The Tribunal had also arrived at Rs.15,93,900/- as the total compensation payable to the petitioners and directed the 3[rd] respondent insurer to deposit the said sum with interest at the rate of 8.5% per annum from the date of the claim petition till the date of realisation with proportionate costs. The claimants are aggrieved by the aforesaid award passed by the Tribunal and therefore approached this Court in the captioned appeal. 8. According to Sri.Binny Thomas, the Tribunal has fixed the monthly income for the purpose of calculation of compensation for loss of dependency as Rs.11,700/-. It is **MACA.No. 1346 of 2015** **5** contended by the learned counsel that the petitioners have produced and marked in evidence Exts.A7 to A11, which include a certificate issued by Advocate Sri.Jose Joseph, Thodupuzha under whom he was working as an advocate clerk, the identity card issued for pleader's registered clerks, certificate from Thodupuzha Urban Co-operative Bank, Agency certificate issued from the LIC of India, Thodupuzha branch and acknowledgement cards issued from the Income Tax Department for assessment years respectively 2009-10 and 2010-11. According to the counsel, though the aforesaid documents were produced by the petitioners and were marked in evidence without opposition, without relying on any of those, the monthly income was fixed by the Tribunal as Rs.11,700/-. It is also contended by the learned counsel that oral evidence was also let in by witnesses as PWs 1 to 5, who are none other than the Manager of Thodupuzha branch of LIC of India, the Manager of main branch of Thodupuzha Urban Co-operative Bank, the Chief Advisor of LIC of India and the lawyer under whom he was working as a clerk prior to his death. According to the learned counsel, these witnesses have spoken before the Tribunal that **MACA.No. 1346 of 2015** **6** the deceased was earning monthly income from his job as commission agent under the LIC and his work as a Clerk under a lawyer and commission as a pigmi agent under the Urban Cooperative Bank. According to him, the total amount earned by the deceased from avocations as stated above was a higher sum than what was derived as declared by him in Exts.A11 and A12 acknowledgement cards issued from the Income Tax Department. It is contended by the counsel that Tribunal will be perfectly justified, if the monthly income higher than what was declared by him in Exts.A11 and A12 is fixed by it on the basis of the oral evidence and other documentary evidence made available to it by the petitioners. The learned counsel has also pleaded for a modification of the compensation awarded under the other heads by way of enhancement. 9. Per contra, the learned counsel for the 3[rd] respondent insurer has contended that the Tribunal had arrived at just and reasonable sum as compensation on a proper appreciation of evidence on record and interference is totally uncalled for. 10. In the backdrop of the arguments advanced by the respective counsel as stated above, it has become incumbent upon this Court to appreciate the entire evidence on record. It **MACA.No. 1346 of 2015** **7** is true that the witnesses examined by the petitioners as PWs 1 to 5 had stated about the income earned by the deceased from his job as an Advocate Clerk, and from his work at LIC and Urban Co-operative Bank as commission agent. It is also discerned from the various documents marked in evidence as Exts.A7 to A10 that the deceased was getting monthly income from his job as Clerk of an Advocate and Commission Agent in LIC and Urban Co-operative Bank Ltd. Exts.A11 and A12 are also made available by the petitioner in evidence which are nothing but the acknowledgements issued from the Income Tax Department for the assessment years 2009-10 and 2010-11. Ext.A12 is irrelevant as it is not related to the assessment year during which the death of the victim was occurred and therefore is discarded. Ext.A11 being the acknowledgement card relating to the assessment year 2009-10 and since the accident was occurred in the year 2009, that document has relevancy and therefore is taken as the basis for fixation of monthly income. In Ext.A11, the total income was declared by the deceased as Rs.1,00,740/-. When a declaration was made by the deceased before the Income Tax Department, it is **MACA.No. 1346 of 2015** **8** improper for him to plead for fixation of a higher sum than the sum declared by him, deviating therefrom. A person is liable to declare his true income before the Income Tax Department and he cannot deviate therefrom. Once the declaration is made before the Income Tax Department about his annual taxable income, the attempt to establish that he was getting a higher sum than that was declared by him in Ext.A11 is not an acceptable approach for this Court. The Tribunal had added 30% to the monthly income fixed as Rs.9,000/- in consideration of future prospectus. The monthly income was fixed by the Tribunal as Rs.9,000/- in due consideration of Ext.A11. The multiplier was also correctly taken by the Tribunal as '14' in accordance with the age of the deceased and 1/3[rd] was been deducted in consideration of the personal expenditure, likely to be incurred by the deceased, had he been alive. Therefore, the calculation of compensation for dependency as stated above is not liable to be interfered with and therefore that is maintained. As rightly pointed out by the learned counsel for the 3[rd] respondent the Tribunal has awarded amounts higher than the sum found payable by the **MACA.No. 1346 of 2015** **9** Constitutional Bench of the Apex Court in **National Insurance Co.Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)] under the conventional heads of funeral expenses and loss of consortium. In the award under challenge the Tribunal has granted Rs.25,000/- and Rs.75,000/- respectively as compensation towards funeral expenses and loss of consortium. Undoubtedly, the amount awarded as compensation under the respective heads is on the higher side and this Court is inclined to deduct a total sum of Rs.45,000/- (Rs.10,000/-+35,000/-) respectively from those heads. 11. Under the head loss of estate, the Tribunal failed to award Rs.15,000/- as directed by the Constitutional Bench of the Apex Court in **Pranay Sethi** 's case supra, as compensation. Rs.10,000/- being the sum awarded by the Tribunal, this Court is inclined to grant Rs.5,000/- in addition under that head. The factum that the deceased was survived by two minor children, aged 12 years and 8 years, at the time of his death is not challenged. In view of **Magma General Isurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** [2018 (11) SCALE 247], petitioners 2 and 3, the minor children **MACA.No. 1346 of 2015** **10** of the deceased, are entitled to get filial consortium to the tune of Rs.40,000/- each. Therefore, this Court is inclined to modify the award by granting Rs.85,000/- (40,000x2+5,000) additionally. 12. In the re-fixation as above, the petitioners will get a sum of **Rs.40,000/-** ( **Rupees fourty thousand only** ) [85,000-45,000] over and above the compensation awarded by the Tribunal. The said amount would carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The appeal is allowed in part on the aforestated terms. The 3[rd] respondent shall deposit the additional amount awarded by this Court with interest as directed within a period of two months from the date of receipt of a copy of this judgment. Parties to this appeal shall bear their respective costs. ## **Sd/-** ## **MARY JOSEPH** **JUDGE** ttb