New India Assurance Co. Ltd. v. Divya and Others

**'** _**C.R'**_ **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 31[ST] DAY OF AUGUST 2021 / 9TH BHADRA, 1943 MACA NO. 2259 OF 2018** **AGAINST THE AWARD DATED 7-4-2018 IN OPMV 1339/2016 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** ## **APPELLANT/3RD RESPONDENT :** **NEW INDIA ASSURANCE COMPANY LTD REPRESENTED BY ITS MANAGER, REGIONAL OFFICE,KOCHI-682011.** **BY ADV SRI.RAJAN P.KALIYATH.** **RESPONDENTS/PETITIONERS :** - **1 DIVYA, W/O LATE. LIJEESH, AGED 29 YEARS, RESIDING AT MUNDUPALATHINGAL, KOTTARAKKOTH, POST PERUMPALLY,PUTHUPPADI, KOZHIKODE, PIN-673586.** - **2 GOURI NANDA, MINOR, AGED 4 YEARS, (MINOR), REP. BY MOTHER AND NATURAL GUARDIAN, DIVYA, W/O LATE LIJEESH (FIRST RESPONDENT) -DO-** - **3 BALAN NAIR, F/O LATE LIJEESH, AGED 66 YEARS, AMBALAKUNNAMMAL HOUSE,VEZHPUR, P.O THAMARASSERY, KOZHIKODE, PIN-673573.** - **4 THANKAMANI, W/O BALAN NAIR, AGED 59 YEARS, RESIDING AT -DO-** ## **BY ADV AVM.SALAHUDIN** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2021, ALONG WITH CO.147/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No.2259 of 2018 & C.O No.147 of 2018 2_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 31[ST] DAY OF AUGUST 2021 / 9TH BHADRA, 1943 CO NO. 147 OF 2018** **AGAINST THE AWARD DATED 7-4-2018 IN OPMV 1339/2016 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** ## **CROSS OBJECTORS/RESPONDENTS/CLAIMANTS :** - **1 DIVYA, W/O LATE. LUJEESH,AGED 29 YEARS.** - **2 GOURI NANDA (MINOR), AGED 4 YEARS, DATE OF BIRTH : 29-09-2013 REPRESENTED BY HER MOTHER AND NEXT FRIEND DIVYA, W/O (LATE)LIJEESH, RESIDING AT MUNDUPALATHINGAL, KOTTARAKKOTH, POST PERUMPALLY,PUTHUPPADI, KOZHIKODE, PIN-673586.** - **3 BALAN NAIR, F/O (LATE) LIJEESH, AGED 66 YEARS,** - **4 THANKAMANI, W/O BALAN NAIR, AGED 59 YEARS, BOTH ARE RESIDING AT AMBALAKKUNNUMMAL HOUSE, VEZHPUR, P.O THAMARASSERY, KOZHIKODE - 673 573.** **BY ADV AVM.SALAHUDIN.** **RESPONDENT/APPELLANT/3RD RESPONDENT :** **THE NEW INDIA ASSURANCE CO.LTD, DO- SILVER PLAZA BUILDING, I.G. ROAD, KOZHIKODE. REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KOCHI-682011.** **BY ADV RAJAN P.KALIYATH** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2021, ALONG WITH MACA.2259/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No.2259 of 2018 & C.O No.147 of 2018 3_ _**C.R'**_ **A.BADHARUDEEN, J. ------------------------------------------------** _**MACA No.2259 of 2018 & C.O No.147 of 2018**_ **---------------------------------------------------Dated this the 31[st] day of August, 2021** ## **J U D G M E N T** This appeal is at the instance of the original third respondent, the insurance company, in OP(MV) No.1339 of 2016 challenging quantum of compensation granted by the Tribunal as per award dated 07-04-2018. The original petitioners are arrayed as respondents herein. 2. Parties in this appeal will be referred to as to their status before the Tribunal for brevity and convenience. 3. Short facts : One Lijeesh met with an accident on 7-2-2016 at about 9.30 pm while he was riding a motor cycle bearing registration No.KL 57 M 3963 from Thamarassery to Adivaram, when the vehicle collided with a car bearing registration No.KL M 3597. According to the petitioners, the accident was the contribution of the second respondent, the driver of the above car, thereby Rs.2 Crore was claimed as compensation by the legal heirs of the deceased under _MACA No.2259 of 2018 & C.O No.147 of 2018 4_ Section 166 of the Motor Vehicles Act. 4. Respondents 1 and 2 remained ex parte before the Tribunal. They were not made parties to this appeal. 5. Third respondent filed the written statement and admitted the policy. The accident as well as negligence were disputed. Similarly, quantum also was disputed. 6. The Tribunal adjudicated the matter along with OP(MV) No.1270 of 2017 and as per common award dated 7-4-2018 an amount of Rs.52,29,000/- was granted as compensation payable by the third respondent, insurer of the offending vehicle. 7. The third respondent insurance company filed this appeal mainly challenging the finding on negligence as well as the quantum fixed by the Tribunal. When the matter was taken up for hearing, the learned counsel for the insurance company fairly submitted that following the ratio in _**New India Assurance Co. Ltd. v. Pazhaniammal and Others [(2011(3) KLT 648]'** s case_ , the negligence attributed against the deceased by the insurance company is not pressed as the finding was entered by the Tribunal on the basis of a police charge marked as Ext.A4. In view of the submission, there is no necessity to address the issue of negligence. 8. However, the learned counsel for the insurance company _MACA No.2259 of 2018 & C.O No.147 of 2018 5_ vehemently opposed the quantum of compensation awarded mainly attacking monthly income of the deceased fixed as Rs.25,000/- by the Tribunal without support of any evidence. According to the learned counsel for the insurance company, the original petitioners claimed Rs.1,00,000/- as monthly income of the deceased on the assertion that he was working as Porter in National Aviation Service, Ministry of Kuwait. However, as per Ext.A8 passport produced from the side of the original petitioners, Lijeesh was working as a Mason in the year 2014. Going by Ext.A8, it could be noticed that the deceased was working in Gulf as a Mason since 2014 and his profession as that of a Porter, as contended by the petitioners, was not established at all. In paragraph 14 of the award, the learned Tribunal discussed Exts.A7 and A8 documents while fixing monthly income of the deceased as Rs.25,000/-. Ext.A7 is the bank statement pertaining to the account of the first petitioner and the same was produced to prove that the deceased transferred amounts to her account. However, the Tribunal found that no periodical or regular transfer of fixed amounts to the account of the first petitioner to be gathered from Ext.A7. However, the Tribunal fixed the income as Rs.25,000/-. 9. While disputing the income, the learned counsel for the _MACA No.2259 of 2018 & C.O No.147 of 2018 6_ insurance company placed a decision reported in _**Valsamma v. Binu Jose (2014(1) KLT 10)**_ to contend that the standards to be applied while assessing the income of a person who is not permanently employed in a foreign country would be in the context of Indian standards. I have gone through the decision. In para No.13, the Division Bench of this Court fixed the income of the deceased in that case during 2004 as Rs.5,000/-, taking note of the income of a painter during the relevant period as Rs.3000/-and by making some additions. 10. The learned counsel for the original petitioners submitted that the ratio in that decision cannot be applied to the facts of this case, wherein no documents were produced atleast to prove the employment of the deceased. However, the submission appears to be not correct as it has been specifically mentioned in paragraph 11 of the judgment in _**Valsamma's case**_ ( _supra_ ) regarding production of the agreement between the employer and employee, labour card as well as passport to substantiate the contention of the petitioners in that case to show that the deceased therein was a person employed abroad. 11. While imputing the finding of the Tribunal with regard to fixation of monthly income as Rs.25,000/-, the learned counsel for _MACA No.2259 of 2018 & C.O No.147 of 2018 7_ ## the insurance company asserted that as per the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]**_ , the income of a coolie worker during 2008 can be fixed at Rs.6500/-. But the learned counsel for the insurance company zealously argued that the Tribunal exceeded the parameters and thereby a higher sum of Rs.25,000/- was fixed as the monthly income. He also submitted that something in excess of Rs.6,500/- can be fixed in this case, considering his employment abroad as evident from Ext.A8 passport produced. 12. Repelling his contention, the learned counsel for the original petitioners submitted that if the ratio of the decision placed by the learned counsel for the insurance company in _**Valsamma**_ 's case ( _supra_ ) if applied to the facts of this case, the income of a Mason during 2014 prevailing in Kerala should be taken note of while fixing the monthly income. It is submitted that Rs.900/- per day was the income prevailing during that period and therefore such a calculation ought to be made to fix the monthly income of the deceased. It is true that as per the ratio in _**Valsamma**_ 's case ( _supra_ ) the income of a spray painter was fixed as Rs.3,000/- during 2004. However, as per _**Ramachandrappa's**_ case ( _supra_ ) the monthly income of a coolie _MACA No.2259 of 2018 & C.O No.147 of 2018 8_ worker is fixed at Rs.4,000/- during 2004. When confining the dispute as to whether what ought to have been the income prevailing during 2014 insofar as the work of a Mason is concerned, I am of the view that the same ranges between Rs.750/- to Rs.850/-. If such a calculation is arrived at, then also I cannot find any fault with the Tribunal in fixing Rs.25,000/- as monthly income of the deceased herein, who evidently employed as a Mason abroad during 2014 as borne out from Ext.A8 passport for the purpose of assessing compensation. In view of the matter, I am not inclined to interfere with the fixation of income as Rs.25,000/- done by the Tribunal in this particular case. **As such** , the contention in this regard at the instance of the insurance company stands repelled. 13. In fact, cross objection also has been filed by the original petitioners seeking enhancement of the monthly income. In view of the discussion held above, enhancement of the monthly income as canvassed in the cross objection also cannot be allowed. 14. Some sort of additions/adjustments regarding the other counts, in fact, to be required in view of the Apex Court decision in ## _**National Insurance Company Limited v. Prany Sethi and**_ _**Ors. [(2017) 16 SCC 680]**_ . It is true that here there are four claimants and they are entitled to Rs.1,60,000/- towards consortium _MACA No.2259 of 2018 & C.O No.147 of 2018 9_ at the rate of Rs.40,000/- each. However, the Tribunal granted Rs.40,000/- under the head of loss of consortium. But the Tribunal granted Rs.1,00,000/- under the head of love and affection and Rs.15,000/- under the head of mental agony and pain. Thus Rs.1,15,000/- granted by the Tribunal under the heads of `love and affection' and `mental agony and pain' is not liable to be granted. Therefore, the said sum required to be reduced. At the same time, loss of consortium ought to be increased to Rs.1,60,000/- instead of Rs.40,000/-. Thus the petitioners are entitled to get Rs.5,000/more in excess of what has been granted by the Tribunal and thereby modified award is passed for Rs.52,34,000/- (Rupees Fifty two lakh thirty four thousand only) carrying interest @ 8% per annum from the date of the petition till date of deposit or realisation. 15. In the result, the appeal at the instance of the insurance company found to be meritless and is accordingly dismissed. The cross objection is allowed to the extent of granting Rs.5,000/(Rupees five thousand only) more as discussed above. 16. The appellant/3rd respondent insurer is directed to deposit Rs.51,712.50/- (Rupees Fifty one thousand seven hundred twelve and paise fifty only) being the court fee payable in this case in favour of MACT, Kozhikode within a period of two months from this _MACA No.2259 of 2018 & C.O No.147 of 2018 10_ date. The respondent/3[rd] respondent insurer is directed to deposit the entire balance amount in the name of the petitioners within a period of two months from this date. On deposit, the petitioners are at liberty to release the same forthwith. Amount, if any, already deposited shall be adjusted. **Sd/-** **A. BADHARUDEEN, JUDGE** amk