New India Assurance Co. Ltd. v. Jameelath and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935 MACA.No. 323 of 2011 ( ) ------------------------AGAINST THE AWARD IN OPMV 1195/2005 of I ADDL.D.C. & ADDL.MACT,KOLLAM DATED 28.9.2010 APPELLANT(S)/3RD RESPONDENT IN OPMV: ------------------------------------------------- NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE-2, KOLLAM REPRESENTED BY THE DULY AUTHORISED SIGNATORY, (R.SUKUMARAN NAIR, MANAGER) REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD KOCHI-682011. BY ADV. SRI.M.JACOB MURICKAN RESPONDENT(S)/PETITIONER & RESPONDENTS 1,2 & 4 IN OPMV: ------------------------------------------------------------------------- 1. JAMEELATH, CHATHAMPARA VEEDU, PUNUKKANNOOR CHERRY, KOTTAMKARA MURY, ALUMMOODU.P.O. KOLLAM, PIN-691577. 2. MUSTHAFA SHAHANAD (MINOR), CHATHAMPARA VEEDU, PUNUKKANNOOR CHERRY, KOTTAMKARA MURY ALUMMOODU.P.O., KOLLAM, REPRESENTED BY THE 1ST RESPONDENT(MOTHER), AS NEXT FRIEND AND GUARDIAN PIN-691577. 3. MUSTHAFA JINSHAD(MINOR) CHATHAMPARA VEEDU, PUNUKKANNOOR CHERRY, KOTTAMKARA MURY ALUMMOODU.P.O., KOLLAM REPRESENTED BY THE 1ST RESPONDENT(MOTHER) AS NEXT FRIEND AND, GUARDIAN PIN-691577. 4. SAJEEV KUMAR XVI/704, RAGHU MANDIRAM, PUNUKKANNOOR, PERUMPUZHA, ELAMPALLOOR KOLLAM-691501. 5. SUNEER, S/O. MUHAMMED KUNJU, KALLUVILA VADAKKATHIL VEEDU, NO.72, ANUGRAHA NAGAR NORTH OF RANDAM NUMBER, CASHEW FACTORY, AYATHIL KILIKOLLOOR VILLAGE, KOLLAM-691004. 6. MAHAMOODA BEEVI, PULLERIYIL VEEDU, (JAZNA MANZIL), MEEYANA.P.O., OYOOR KOLLAM., PIN-691516. R1- R3 BY ADV. SRI.B.MOHANLAL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-12-2013, ALONG WITH CO. 37/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ma ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** ............................................................................ M.A.C.A.NO.323 of 2011 & Cross Objection No.37 of 2011 ........................................................................... Dated this the 12[th] day of December, 2013. ## **JUDGMENT** ## **Siri Jagan, J.** This appeal is filed by the insurance company in OP(MV) No.1195/2005 before the First Additional Motor Accidents Claims Tribunal, Kollam. The original petition was filed by respondents 1 to 3 herein, who were the wife and children of deceased Shajahan, who died in an accident caused by the negligent driving of a vehicle insured with the appellant. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: |Transportation expense|| |---|---| |including ambulance charge|Rs. 2,500| |Damage to clothing|Rs. 500| |Pain & suffering|Rs. 10,000| |Loss of dependency|Rs.15,60,000| |Loss of consortium|Rs. 15,000| |Loss of love & affection|Rs. 5,000| |Loss of estate|Rs. 5,000| |Funeral expense|Rs. 5,000| ||-------------------| |Total|Rs.16,03,000| ||========| M.A.C.A.NO.323 of 2011 2 2. The appellant has filed this appeal challenging the quantum awarded by the Tribunal as excessive. The cross objection has been filed by respondents 1 to 3 in the appeal, claiming that the quantum awarded is not commensurate with the loss suffered by respondents 1 to 3. 3. The contention of the appellant is that the Tribunal erroneously fixed the loss of dependency itself as Rs.10,000/per month, although in the claim petition, the claimants themselves stated that the monthly income of the deceased was Rs.10,000/-. It is further submitted that the total amount claimed by respondents 1 to 3 in their claim petition was only Rs.13,50,000/-, whereas, the Tribunal has awarded a total compensation of Rs.16,03,000/-. It is submitted that, there were no special circumstances proved by the claimants warranting award of more amount than what was claimed by respondents 1 to 3 in the claim petition. 4. On the other hand, respondents 1 to 3 would contend that respondents 1 to 3 had produced Ext.A12 salary certificate issued by the employer of the deceased, which showed that he was drawing a monthly salary of 2,000 Riyals apart from free food and accommodation. As such, the income taken by the M.A.C.A.NO.323 of 2011 3 Tribunal is much less than the actual income of the deceased is their contention. It is submitted that, respondents 1 to 3 did not have sufficient opportunity to get the claim petition amended, commensurate with the documents produced in proof of the income of the deceased. It is pointed out that, respondents 1 to 3 have filed IA.No.1468/2012 before this Court seeking correction of the income column in the claim petition as Rs.25,000/- instead of Rs.10,000/- which is liable to be allowed. They would contend that, in view of the fact that the monthly income of the deceased was Rs.25,000/- per month, the loss of dependency calculated is palpably low. It is further submitted that, the first respondent was only 34 years old at the time of death of her husband and she had two minor children aged 12 and 9 years respectively. In such circumstances, she had very little chance for a re-marriage and, therefore, the compensation of Rs.15,000/- for loss of consortium is palpably low. It is also pointed out that the compensation for loss of love and affection of two minor children and the mother of the deceased, awarded by the Tribunal is on the lower side. The deceased died one day after the accident. Therefore, the compensation of Rs.10,000/- for M.A.C.A.NO.323 of 2011 4 pain and suffering of the deceased is also on the lower side is the contention. It is contended that the compensation for loss of estate of Rs.5,000/- and funeral expense of Rs.5,000/- are also on the lower side. Respondents 1 to 3, therefore, seek enhancement under all heads in their cross objection. 5. We have considered the rival contentions in detail. 6. The counsel for the cross objectors relies on the decision of **National Insurance Company Ltd.v. Indira Srivastava** (2008 (1)KLT 62 (SC)) in support of the appellant for fixing the income commensurate with ExtA.12 salary certificate. We are of the opinion that the facts of that case are totally different and the same is not applicable to the facts of this case. 7. The first question to be decided is the monthly income of the deceased. It is true that the appellant had produced Ext.A12 salary certificate issued by a person, who was allegedly the employer of the deceased at Jeddah. It is pointed out that the certificate was counter signed by the Indian Consulate in Jeddah. The mere fact that the certificate is countersigned by the Indian Consulate in Jeddah, does not vouch for correctness of the contents of the document. The contents of the document M.A.C.A.NO.323 of 2011 5 have to be proved by evidence. There is no evidence to prove that the contents therein are true and correct. Apart from that, it is common knowledge that the employment in a Gulf country is very unstable especially that of a driver. Any time, the same can be terminated. Apart from that, although respondents 1 to 3 now want to correct the monthly income of the deceased in the claim petition commensurate with Ext.A12 salary certificate, the very fact that respondents 1 to 3 showed the income of the deceased as Rs.10,000/- in the claim petition itself goes a long way to disprove the salary certificate. They also claimed only Rs.13,50,000/- as compensation in the claim petition. Of course the Tribunal has power to award more compensation than what is claimed in the claim petition. But, that must be commensurate with the facts stated in the claim petition. In the claim petition, respondents 1 to 3 themselves have stated the income of the deceased as Rs.10,000/-. No reliable evidence is also on record to prove a higher income. In the above circumstances, we are not inclined to rely on Ext.A12 salary certificate since respondents 1 to 3 themselves claimed the income of the deceased as only Rs.10,000/. That amount only can be taken as the income of the deceased. In M.A.C.A.NO.323 of 2011 6 accordance with the principles laid down in the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 SC), 1/4[th] has to be deducted for personal expenses of the deceased. The multiplier applicable is 13. If compensation for loss of dependency is recalculated on the basis of these inputs, the compensation for loss of dependency would be Rs.11,70,000/- (10000x12x13x3/4) instead of Rs.15,60,000/- awarded by the Tribunal. Therefore, for loss of dependency, the amount awarded by the Tribunal is in excess by Rs.3,90,000/-. But, we find that, the first respondent was only 34 years old at the time of death of her husband. She had two minor children aged 12 years and 9 years respectively. In such circumstances, the chance of a remarriage is very remote. Therefore, we are inclined to fix the compensation for loss of consortium as Rs.50,000/- instead of Rs.15,000/-. Likewise, for the loss of love and affection of two minor children and the mother of the deceased, we fix the compensation as Rs.30,000/- instead of Rs.25,000/-. We enhance the funeral expenses to Rs.10,000/- instead of Rs.5,000/-. We enhance the compensation for loss of estate to Rs.10,000/-. Since the deceased died one day after the M.A.C.A.NO.323 of 2011 7 accident, we fix the compensation for pain and suffering of the deceased as Rs.15,000/- instead of Rs.10,000/-. Accordingly, under other heads the respondents are entitled to get additional compensation of Rs.75,000/-. If the said amount of Rs.75,000/- is deducted from Rs.3,90,000/-, the excess amount awarded by the Tribunal would come to Rs.3,15,000/-, If the same is deducted from the total compensation of Rs.16,03,000/awarded by the Tribunal, the compensation payable to respondents 1 to 3 would stand reduced to Rs.12,88,000/-. We, therefore, hold that respondents 1 to 3 and the 6[th] respondent together are entitled to only Rs.12,88,000/- as compensation instead of Rs.16,03,000/-. With the above modification in the impugned award of the Tribunal, the appeal is disposed of. ## **S.SIRI JAGAN, JUDGE.** ## **K. RAMAKRISHNAN, JUDGE.** cl M.A.C.A.NO.323 of 2011 8