Omana P.K. and others v. Francis Edwin and National Insurance Company Ltd. (OP(C) No. 2949 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933** **OP(C).No. 2949 of 2011(O)** **------------------------EA NO.1214/2010 (REVIEW PETITION) IN EA NO.959/2010 IN E.P.NO.235/2010 IN OS.293/2000 of PRINCIPAL SUB COURT,ERNAKULAM** **....................** ## **PETITIONERS/RESPONDENTS 2 TO 4/JUDGMENT DEBTORS 2 TO4:** - **----------------------------------------------------------------------------------------------------** **1. OMANA.P.K., AGED 44 YEARS,** **W/O.LATE GOPALAKRISHNAN, B 42, TELECOM QUARTERS, PANAMPILLY NAGAR, KOCHI-36.** **2. HEMA G.KRISHNAN, AGED 23 YEARS,** **D/O.LATE GOPALAKRISHNAN, B 42, TELECOM QUARTERS, PANAMPILLY NAGAR, KOCHI-36- A DIFFERENTLY ABLED CHILD REPRESENTED BY HER MOTHER AND GUARDIAN IST PETITIONER.** **3. HEMAND G.KRISHNAN, AGED 21 YEARS, S/O.LATE GOPALAKRISHNAN, B 42, TELECOM QUARTERS, PANAMPILLY NAGAR, KOCHI-36.** **BY ADVS. SRI.SHAJI P.CHALY, SRI.R.SANJITH.** ## **RESPONDENT(S): PETITIONER/5TH & 1ST RESPONDENT/DECREE HOLDER/ 1ST AND 5TH JUDGMENT DEBTOR:** **---------------------------------------------------------------------------------** **1. FRANCIS EDWIN, AGED 53 YEARS, S/O.THAYIL IGNATIUS, THAYIL HOUSE, VELI, FORT KOCHI, KOCHI-682 001.** **2. NATIONAL INSURANCE COMPANY CO.LTD., REPRESENTED BY THE DIVISIONAL MANAGER, AJAY VIHAR, IST FLOOR, M.G.ROAD,ERNAKULAM, KOCHI-16.** **3. K.GOPALAKRISHNAN (DIED), MADATHINKAL HOUSE, PASUVA, MANNADISSALA P.O., VECHUCHIRA-686 511.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **OPC.NO.2949/2011 O** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1**|**TRUE COPY OF THE ORDER IN EA.1214/10 (REVIE PETITION)**| |---|---| ||**IN EA.959/10 IN EP.235/10 IN OS.NO.293/2000.**| |**EXT.P2**|**TRUE COPY OF THE ORDER IN EA.1214/10 (REVIE PETITION)**| ||**IN EA.959/10 IN EP.235/10 IN OS.NO.293/2000.**| |**EXT.P3**|**TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS**| ||**2 TO 4 PETITIONERS HEREIN.**| |**EXT.P3(A)**|**TRUE COPY OF THE EXECUTION PETITION EP.NO.235/2010 IN**| ||**OS. 293/2000.**| |**EXT.P3(B)**|**TRUE COPY OF THE EXECUTION PETITION EP.NO.235/2010 IN**| ||**OS. 293/2000.**| |**EXT.P4**|**TRUE COPY OF THE EA.NO.412/10 IN EP.235/10 IN OS.293/00**| ||**FILED BY THE IST RESPONDENT HEREIN.**| |**EXT.P5**|**TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS TO**| ||**EA.NO.412/10 IN EP.235/10 IN OS.293/2000.**| |**EXT.P6**|**TRUE COPY OF THE EA.NO.959/10 IN EP.235/10 IN OS.293/2000**| |**EXT.P7**|**TRUE COPY OF THEOBJECTION FILED BY THE PETITIONERS HEREIN**| ||**EA.NO.235/10 IN EP.235/10 IN OS.293/2000.**| |**EXT.P8**|**TRUE COPY OF THE ORDER IN EA.NO.959/10 IN EP.235/10 IN**| ||**OS.293/2000.**| |**EXT.P8(A)**|**TRUE COPY OF THE CLAIM PETITION OPMV 1736/2004 ON THE**| ||**FILES BY THE IST RESPONDENT HEREIN.**| |**EXT.P9**|**TRUE COPY OF THE CLAIM PETITION OPMV 1736/2004 ON THE**| ||**FILES OF THE LEARNED MOTOR ACCIDENT CLAIMS TRIBUNAL,**| ||**ERNAKULAM.**| |**EXT.P10**|**TRUE COPY OF THE AWARD IN OPMV 1736/2004 ON THE**| ||**FILES OF THE LEARNED ADDL.MOTOR ACCIDENT CLAIMS**| ||**TRIBUNAL,ERNAKULAM.**| ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------O.P.(C) No.2949 of 2011 -------------------------------------Dated this the 31[st] day of October, 2011.** ## **JUDGMENT** 1[st] respondent obtained a decree for recovery of money against the deceased 1[st] judgment debtor in the year 2002. 1[st] judgment debtor met with a motor accident and succumbed to the injuries on 04.05.2004. Petitioners who are his legal heirs filed O.P.(MV) No.1736 of 2004 before the Motor Accidents Claims Tribunal, Ernakulam (for short, “the Tribunal”) and obtained Ext.P10, award for recovery of `13,60,000/- by way of compensation. After the death of the 1[st] judgment debtor, petitioners were impleaded in E.P.No.235 of 2010 (in O.S.No.293 of 2000) as additional judgment debtors. 1[st] respondent filed E.A.No.959 of 2010 to attach `2,10,000/- from the amount awarded by the Tribunal and payable to the petitioners. After hearing both sides, learned Sub Judge dismissed E.A.No.959 of 2010 holding that no amount payable to the petitioners as per Ext.P10, award could be attached as it is not the property of the deceased 1[st] judgment debtor. Thereafter placing reliance on the observations in paragraphs 8 and 9 of the decision in E.S.I.Corporation v. Rajagopal Textile Mills (P) Ltd. (2006 (4) KLT 730), 1[st] respondent sought review of the order on E.A.No.959 of 2010 vide E.A.No.1214 of 2010. Learned Sub Judge allowed that application, reviewed the order on E.A.No.959 of 2010 **OP(C)No.2949/2011** 2 and attached `2,10,000/- payable to the petitioners from the amount awarded by Ext.P10, award. The order on E.A.No.1214 of 2010 is under challenge in this Original Petition. 2. When the matter came up for hearing, after hearing both sides this Court passed an interim order on 06.09.2011 granting stay except to the extent of `15,000/- from the amount in deposit which the 1[st] respondent was allowed to withdraw. 3. It is contended by learned counsel for petitioners that the amount attached represents pecuniary loss suffered by petitioners as dependents and legal heirs of the deceased 1[st] judgment debtor consequent to his death in the motor accident, it is not the property of the deceased 1[st] judgment debtor, it is the property of petitioners who have no personal liability to the 1[st] respondent and hence the said amount is not attachable. According to the learned counsel, only compensation awarded by way of loss of estate of the deceased 1[st] judgment debtor could be attached. Reliance is placed on the decisions in **Smt.Lakshmisagar Reddy v. Controller of Estate Duty, Hyderabad ((1980) ITR Vol.123 – page 601), The Chairman, A.P.S.R.T.C., Hyderabad v. Smt.Shafiya Khatoon and others (AIR 1985 AP 83)** and **Janaki and others v. Prabath Finance (AIR 1986 Madras 273)** . Learned counsel also invited my attention to the meaning of **OP(C)No.2949/2011** 3 the expression ‘decedent’s estate’ from Blacks Law Dictionary, 9[th] Edition. 4. Learned counsel for 1[st] respondent would rely on the observations in paragraph 11 of **Gobald Motor Service Ltd. and another v. R.M.K.Veluswami and others (AIR 1962 SC 1), Lakshmi v. Chairman, KSRTC (1983 KLT 842 – paragraph 5)** and **Kumaran v. Mohammed Khader (1994 (2) KLT 409 – paragraph 8)** . My attention is also drawn to Sec.1A of the Fatal Accidents Act to contend that learned Sub Judge is justified in attaching `2,10,000/- which forms part of loss of estate of the deceased. It is also contended by the learned counsel that the said amount is payable to the legal heirs by virtue of Sec.1A of the Fatal Accidents Act. 5. To resolve the issue it is necessary to refer to Ext.P10, award passed by the Tribunal in O.P.(MV) No.1736 of 2004 in favour of the petitioners. In paragraph 11, the Tribunal has given the headwise account under which compensation was awarded to the petitioners. The first head is “compensation for loss of dependency and estate”, the amount awarded being `13,20,000/For loss of estate, another sum of `5,000/- is awarded and for pain and suffering of the deceased, `5,000/- is awarded. The other amounts awarded include transportation expenses, funeral expenses, compensation for loss of love and affection (of the children) and loss of consortium to the widow of the deceased 1[st] judgment debtor. Thus a total sum of `13,60,000/- was awarded. 6. In E.A.No.959 of 2010 learned Sub Judge found that no portion of **OP(C)No.2949/2011** 4 compensation awarded by Ext.P10, award is attachable as it is not the property of deceased 1[st] judgment debtor. That order is reviewed by the learned Sub Judge by order on E.A.No.1214 of 2010 to the extent that the sum of `2,10,000/(which was sought to be attached) is found attachable from the sum of `13,20,000/- (which the Tribunal has awarded by way of ‘compensation for loss of dependency and estate’). 7. Now the question is whether the said amount forms part of loss of estate or loss to the estate of the deceased. There is fundamental distinction between 'loss of estate' and 'loss to the estate'. This is highlighted in **The** ## **Chairman, A.P.S.R.T.C., Hyderabad v. Smt.Shafiya Khatoon and** **others** . In paragraph 10, it is held that loss of ‘benefit to the estate’ of the deceased is the loss arising to the estate under the heads of mental and physical pain, loss of expectation of life and loss of amenities. The said amounts are payable to the legal heirs under the provisions of the Legal Representatives Suits Act, 1855 read with Sec.306 of the Indian Succession Act, 1925. Sec.1A of the Fatal Accidents Act deals with the right of legal heirs to claim compensation as referred to therein. The decision of the Supreme Court cited by the learned counsel for 1[st] respondent ( **Gobald Motor Service Ltd. and** ## **another v. R.M.K.Veluswami and others** ) also supports the above view. There, in paragraph 11 an illustration is drawn that 'X' is the income of the estate of the deceased, 'Y' is the yearly expenditure incurred by him on his dependents **OP(C)No.2949/2011** 5 and therefore 'X' – 'Y' = 'Z' is the amount he saves every year. The capitalized value of the income spent on the dependents, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalized value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. In otherwords what amount the dependents would have got less deductions if any that could be made under law is the loss to the estate (of the deceased). That goes to the legal heirs of the deceased. On the otherhand, loss of estate includes compensation for pain and suffering, loss of enjoyment of amenities, etc. of the deceased. That amount goes to the legal heirs and by virtue of Sec.1A of the Fatal Accidents Act. In **Kumaran v. Mohammed Khader** , in paragraph 8 this position is made clear. It is stated that the exemption from attachment applies only to compensation awarded for the pecuniary loss sustained by defendants 2 to 7 (ie. legal heirs of the deceased). 8. Thus the position is clear that what could be attached from the amount of compensation is the loss of estate and not the loss to the estate of the deceased. 9. Going back to paragraph 11 of the award, it is seen that though in the headwise account of “compensation for loss of dependency and estate” the Tribunal has awarded `13,20,000/-, that amount is the the financial loss suffered by petitioners on account of the untimely death of 1[st] judgment debtor in the accident, for, it is clear from the award that the Tribunal has assessed the **OP(C)No.2949/2011** 6 monthly income of the deceased at `12,602/-, deducted certain amount for his personal expenses and fixed the monthly dependency of petitioner at `11,000/-. Taking the appropriate multiplier since the deceased 1[st] judgment debtor was aged 42 years, the pecuniary loss suffered by the dependents (here, petitioners) was fixed at `13,20,000/-. Hence it is clear that though the head is stated as ‘compensation for loss of dependency and estate' the sum of `13,20,000/represents loss of dependency of petitioners on account of death of the 1[st] judgment debtor in the accident. Hence no amount is attachable from `13,20,000/- as if it forms part of loss of estate as well. 10. But, the sum of `5,000/- awarded as loss of estate (of the deceased) and `5,000/- awarded for pain and suffering of the deceased could be attached since the said amounts are awarded towards loss of estate of the deceased. 11. A further claim is made on the amount towards funeral expenses and transportation expenses. But those amounts could be attached only if it is shown that those amounts were spent out of the assets of the deceased. If those amounts were spent by legal heirs from their pocket, that is not an amount which goes to the estate of the deceased. Hence that amount also cannot be attached. In otherwords, the total amount attachable from `13,60,000/- is only `10,000/- To that extent alone learned Sub Judge was justified in allowing E.A.No.1214 of 2010. 12. I stated that when this matter came up before me for admission, **OP(C)No.2949/2011** 7 after hearing both sides this Court permitted the 1[st] respondent to withdraw `15,000/-. I found that 1[st] respondent could legally attach from the amount payable as per Ext.P10, award only `10,000/-. Learned counsel for petitioners submits that petitioners have no objection in the 1[st] respondent withdrawing the sum of `15,000/- as earlier ordered by this Court. Resultantly this Original Petition is allowed and Ext.P1, order is modified to the extent that the attachment ordered by the learned Sub Judge will stand confined to `15,000/- (Rupees fifteen thousand only) out of the amount due to the petitioners under Ext.P10, award. 1[st] respondent can withdraw the said sum of `15,000/- (Rupees Fifteen thousand only) from the said amount. **THOMAS P.JOSEPH, Judge.** **cks**