Mohammed Nabeel and Salma (minor) represented by guardian V.Y Ziad v. B. Rajeev, K.C Mathew, Reliance General Insurance Co. Ltd, Mariyam Beevi

_M.A.C.A.No.4220/2018_ _1_ # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942_ ## _MACA.No.4220 OF 2018(B)_ _AGAINST THE AWARD IN OPMV 101/2010 DATED 19-01-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA_ ## _APPELLANT/S:_ _1 MOHAMMED NABEEL, S/O. LATE ASGAR, VADAKKE ATTATHU, CMC-3, CHERTHALA, ALAPPUZHA. 2 SALMA, D/O. LATE ASGAR, VADAKKE ATTATHU, CMC-3, CHERTHALA, ALAPPUZHA (MINOR) REP. BY HER LEGAL GUARDIAN V.Y ZIAD, VADAKKE ATTATHU, CMC-3, CHERTHALA, ALAPPUZHA._ ## _BY ADV. SRI.B.PRAMOD_ ## _RESPONDENT/S:_ _1 B.RAJEEV, RAJEEVAN, NEAR KOLLAPPALLY TEMPLE, THATHAMPALLY, ALAPPUZHA 688 013 (OWNER). 2 K.C MATHEW, S/O.CHACKO, KOTTARAPARAMBIL, CHEECANCHIRA, CHANGANACHERRY 686 101 (DRIVER). 3 RELIANCE GENERAL INSURANCE CO.LTD, XL/3599, 4TH FLOOR, ELIZABATH ALEXANDER MEMORIAL BUILDING, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI 682 031. 4 MARIYAM BEEVI, W/O. LATE YUSUF, VADAKKE ATTATHU, CMC-3, CHERTHALA, ALAPPUZHA 688 524. R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.No.4220/2018_ _2_ ## **JUDGMENT** ## **Dated this the 18[th] day of March, 2021** The appellants are petitioners in O.P.(MV)No.101 of 2010 on the file of the Additional Motor Accidents Claims Tribunal-1, Alappuzha. The aforesaid claim petition was filed by the appellants seeking compensation for the death of one Asgar who died due to the injuries sustained in a motor accident occurred on 24.12.2008. The claimants are the children and mother of the deceased Asgar. According to the claimants, the deceased was aged 39 years and was working as a shop-in-charge and partner of an establishment named Ambar Al-Madeena Perfumes Trading LLC in U.A.E. It was also contended that, he was having 25% share in the said establishment and according to them, he was getting an amount of 15,000 dirhams as salary as well as share of profits from the said establishment. In order to prove the same, the claimants have produced Ext.A21 which is a Memorandum of Association of Ambar Al-Madeena Perfumes Trading LLC Limited Company, per month incorporated in U.A.E. and also Ext.A22 which is a _M.A.C.A.No.4220/2018_ _3_ certificate issued by the said company stating that, he was getting an amount 15,000 dirham by way of profit and salary from the said institution. Both the said documents were attested by the Ministry of Foreign Affairs, Dubai and also by the Consulate General of India, Dubai. On the basis of the said document, the monthly income claimed by the appellants was Rs.1,80,000/-. The total compensation claimed in this case was Rs.1,50,00,000/-. 2. The 3[rd] respondent Insurance Company appeared and filed a written statement admitting the coverage of policy but disputed the liability on various grounds. The quantum of compensation claimed was also seriously disputed by them. 3. The aforesaid claim petition was tried along with OP(MV)Nos.98/2010, 99/2010 and 100/2010. All the said claim petitions arose from the very same accident. The evidence in this case consists of A1 to A23 from the side of the petitioners and Ext.B1 from the side of respondents. After the trial, the Tribunal passed an award allowing an amount of Rs.19,54,055/- as compensation and the 3[rd] respondent Insurance Company was directed to deposit the _M.A.C.A.No.4220/2018_ _4_ said amount along with interest at the rate of 9% per annum. 4. Being dissatisfied with the said compensation, this appeal is filed by the claimants. 5. Heard the learned counsel for the appellants and the learned counsel for the 3[rd] respondent Insurance Company. 6. One of the main contentions put forward by the learned counsel for the appellants is that, the amount awarded by the Tribunal under the head of loss of dependency is on lower side. According to the learned counsel for the appellants, the income taken by the Tribunal was Rs.10,000/- whereas going by the documents produced by them namely Exts.A21 and A22, it is more than Rs.1,80,000/-. Therefore, they insisted for re-fixation of monthly income in tune with the same. 7. In response to the aforesaid contentions, the learned counsel for the 3[rd] respondent urged that, Exts.A21 and A22 cannot be relied upon for the purpose of re-fixing the monthly income of the deceased. Even though, the said documents were attested by the Ministry of Foreign Affairs, Dubai and also by the Consulate General of India, Dubai, _M.A.C.A.No.4220/2018_ _5_ the said attestation cannot be treated as a proof of the contents of the said documents. It was also pointed out by the learned counsel that, the aforesaid documents were marked before the Tribunal subject to proof, but the appellants have not taken any steps to corroborate the contents of the said documents by way of producing evidence such as details of banking transactions and such other documents incidental thereto. In the absence of such documents, the monthly income as claimed by him on the strength of Exts.A1 and A22 cannot be taken into consideration. 8. In support of the contentions raised above, the learned counsel for the 3[rd] respondent relied upon two judgments, one rendered by the Hon’ble Supreme Court reported in **United India Insurance Co.Ltd. v. Satinderkaur @ Satwinderkaur and Others [2020(3)KHC 760]** and also another judgment rendered by this Court reported in **Glanis v. Lazar Manjila [2020(4)KLT 222]** . With reference to the observations made by the Hon’ble Supreme Court in the judgment in Satinderkaur’s case, it was pointed out that, the Hon’ble Supreme Court doubted the veracity of the contents of the _M.A.C.A.No.4220/2018_ _6_ document produced in that case by the claimants even though those documents were attested in the manner produced in this case. Therefore, it is his case that merely because of the fact that documents were attested, the contents thereof as such should not be taken into consideration, unless there are other corroborative materials to prove the same. It was also pointed out by him that, in the judgment of Glani’s case, in respect of an accident occurred in the year, 2002 in which a person employed in Saudi Arabia died, after examination of the materials, this Court has taken the monthly income of the deceased as Rs.7,500/- per month and computed the compensation based on the same. 9. On the other hand, the learned counsel for the appellants relied upon the judgment in Satheesan E.K. v. Musthafa K.P. and Another [2018(5)KHC 884], which is a similar case wherein, a person employed abroad, sustained very serious injuries. In the said case, by accepting Exts.A11 and A12 documents produced therein, this Court has taken the monthly income as Rs.43,875/- along with 40% addition towards future prospects. It was pointed out that in that case, the documents marked with similar _M.A.C.A.No.4220/2018_ _7_ attestation were accepted and were acted upon for the purpose of fixing the monthly income. 10. The learned counsel for the appellants relied upon Annexure A1 document, which is produced by him along with I.A.No.1 of 2021. The said I.A was allowed and the said document was taken into file as Ext.A24. The said document is a Statement of Account of the deceased, wherein the remittance of the deceased is shown in the bank account in the name of the deceased in his native place. On going through the contents of the same, it can be seen that for the period from 25.09.2017 to 12.12.2018 there were remittance at the average of Rs.29,357/-. On the strength of the said document, it was contended by him that the said document can be accepted for the purpose of determining monthly income as Rs.30,000/-. It was also pointed out by him that, it was the amount which he used to send to the family for their expenses and since the said amount is the remaining amount, after all his personal expenses abroad, the said amount has to be taken into consideration in its entirety, without any deduction towards personal expenses. _M.A.C.A.No.4220/2018_ _8_ 11. It was also pointed out by him that, earlier, the Insurance Company has also filed MACA.No.3470 of 2016 challenging the quantum of compensation already awarded by the Tribunal. The said appeal resulted in dismissal as per judgment dated 11.11.2016, at the time of admission itself, without issuing notice to the respondents. It was pointed out that in the said appeal, the Insurance Company specifically raised contentions challenging the addition made by the Tribunal, towards future prospects and also the fixation of monthly income. As the said appeal is already dismissed, the aforesaid criteria have become final. 12. As mentioned above, Annexure A1 statement of account indicates regular remittance at the rate of about Rs.30,000/- per month. Considering the overall circumstances as revealed from the materials available on record, this Court is of the opinion that, the said Rs.30,000/can be taken as the monthly income for the purpose of determining compensation in this case. This is particularly so, as the Ext A21 Memorandum of Association produced by the Appellants indicates that, the deceased was a partner in the said Company. Ext A20 passport of the deceased also indicates that, there were frequent Air travels by him. All _M.A.C.A.No.4220/2018_ _9_ the above aspects clearly indicate that, he was maintaining a decent standard of life, so as to justify an estimate of monthly income of Rs 30,000/- per month. 13. The next question that arises is as to the addition to be made towards future prospects. In the award, the addition made was 50%. Even though said computation was challenged by the Insurance Company in M.A.C.A.No.3470 of 2016, the said contention was rejected by this Court in the judgment dated 11.11.2016 by relying upon the principles laid down by the Hon’ble Supreme Court in Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]. It is true that subsequent to that, in the judgment rendered by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , the deduction in such cases was fixed as Rs.40%. However, since there is already a finding rendered by this Court in the judgment of this court in M.A.C.A.No.3470 of 2016 filed by the Insurance Company, which has become final, the said finding is binding between the parties. Since the finding of this Court confirming the addition of 50% is not challenged or reviewed, the same has to be accepted for the purpose of further computation in this appeal also. _M.A.C.A.No.4220/2018_ _10_ Therefore, for the purpose of assessment of compensation for loss of dependency, an addition of 50% of the income has to be taken, in the light of the fact that, in the judgment in M.A.C.A.No.3470 of 2016, the said finding is confirmed and the same has become final. 14. The next aspect is relating to the deduction to be made towards personal expenses. The learned counsel for the appellant pointed out that, even though the monthly income claimed by him is Rs.1,80,000/- by relying upon Ext.A22, it is discernible from Ext.A24 statement of accounts that, an average remittance of Rs.30,000/- was being made by him in the said account for maintenance of his family. Therefore, it has to be treated as the income which was being received by the family for their maintenance and hence no further deduction is to be made towards personal expenses of the deceased. In response to the aforesaid contention, the learned counsel for the Insurance Company submitted that, such a method of computation is not permissible. All these amounts are being sent to the personal account of the deceased and therefore, in the absence of any evidence, it cannot be assumed that the entire amount remitted in the account _M.A.C.A.No.4220/2018_ _11_ were being utilized for the family alone. This court finds that there is some force in the contention of the learned counsel for the insurance company and on analysis of entire facts and circumstances of the case, this Court is of the view that there should be deduction towards personal expenses. In this regard, it is noticed that, while fixing the compensation for loss of dependency, the Tribunal had deducted 1/3 of the income. The said computation is also confirmed by virtue of the judgment passed by this Court in M.A.C.A.No.3470 of 2016. In the above circumstances, the said criteria adopted by the Tribunal deducting 1/3 of the monthly income can be applied while re-fixing the quantum of compensation. Accordingly, the compensation under the head of loss of dependency is re-fixed as Rs.54,00,000/[30000 + (50% of 30000) x 12 x 15 x 2/3]. The amount awarded by the Tribunal under the head of loss of dependency is Rs.18,00,090/-. Therefore, after deducting the said amount, the balance amount receivable by the appellants under the head of loss of dependency shall be Rs.35,99,910/-. 15. It was pointed out that, no amount is awarded under the head of loss of estate. Going by the principles _M.A.C.A.No.4220/2018_ _12_ laid down in **Pranay Sethi’s case** , an amount of Rs.15,000/- has to be granted under this head and this is accordingly allowed. No amount is seen granted under the head of loss of consortium. However, an amount of Rs.1,00,000/- is seen awarded under the head of love and affection by the Tribunal. In the light of the principles laid down in **National Insurance Company v. Somwati [(2020) 9 SCC 644]** , it is not necessary to award love and affection and compensation for loss of consortium together. Going by the principles laid down in the said judgment, the parties shall be entitled to compensation for loss of consortium including filial consortium and parental consortium. Going by the principles set out therein, the 1[st] and 2[nd] appellants shall be entitled for parental consortium at the rate of Rs.40,000/- each. The 4[th] respondent, who is the mother of the deceased shall be entitled for Rs.40,000/under the head of filial consortium. Thus the total amount payable to the appellants under the head of loss of consortium shall be Rs.1,20,000/-. Since the appellants were already granted Rs.1,00,000/- under the head of loss of love and affection, in the light of principles laid down in the above judgment, the said amount has to be adjusted _M.A.C.A.No.4220/2018_ _13_ towards compensation granted under the head of loss of consortium. Therefore, the additional amount payable in respect of the same can be Rs.20,000/-, as the compensation already granted by the Tribunal for loss of love and affection stands adjusted against compensation for loss of consortium. It was further pointed out by the learned counsel for the Insurance Company that funeral expenses awarded by the Tribunal is Rs.25,000/-, whereas the actual amount payable in the light of **Pranay Sethi’s case** is only Rs.15,000/-. Therefore, the compensation under the said head is in excess by Rs.10,000/- and this has to be deducted. Thus the total additional compensation is fixed as Rs.36,24,910/- [3599910+15000+20000-10000]. Thus the appeal is allowed, fixing the additional compensation payable to the appellants as Rs.36,24,910/and the said amount shall be deposited by the 3[rd] respondent Insurance Company along with interest and proportionate cost as ordered by the Tribunal. 16. In this case, while condoning the delay of 898 days in filing the appeal as per order dated 26.06.2018 in C.M.Appln.No.1 of 2018, this court imposed a condition that, the appellants shall not be entitled to claim interest for _M.A.C.A.No.4220/2018_ _14_ the period of delay. In the light of the above, while computing the interest for the amount granted by this Court in this appeal, the 3[rd] respondent Insurance Company can exclude 898 days. Appeal is allowed as above. _Sd/-_ **ZIYAD RAHMAN A.A.** **JUDGE** DG _M.A.C.A.No.4220/2018 15_ ## _APPENDIX OF MACA 4219/2018_ _PETITIONER'S/S EXHIBITS:_ _ANNEXURE-1_ _TRUE COPY OF THE ORDER DATED 31.07.2013 OF OP(G & W) NO.40/2010 IN THE COURT OF THE DISTRICT JUDGE, ALAPPUZHA_