PRASUMA P.S. and others v. L. ROBERT RAJ and others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ``` ``` MACA NO. 3089 OF 2017 ``` - `[AGAINST THE AWARD DATED 17.03.2017 IN OP(MV)NO.1283/2012 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL]` ## `APPELLANTS/PETITIONERS:` - `1 PRASUMA P.S., NOW AGED 33 YEARS, SREERENGA VILASOM,(ASWATHY BHAVAN), ETTIMOODU, VATTATHAMARA(PO)KOLLAM-691536.` - `2 SWAS.A.P, (MINOR), NOW AGED 6 YEARS 5 MONTHS, SREERENGA VILASOM,(ASWATHY BHAVAN), ETTIMOODU, VATTATHAMARA(PO) KOLLAM-691536.` - `3 MANONMANI.D, NOW AGED 59 YEARS, SREERENGA VILASOM, (ASWATHY BHAVAN), ETTIMOODU,VATTATHAMARA(PO) KOLLAM-691536.` - `4 BALACHANDRAN NAIR.K, NOW AGED 65 YEARS, SREERENGA VILASOM,(ASWATHY BHAVAN), ETTIMOODU, VATTATHAMARA(PO) KOLLAM-691536.` ``` (2ND APPELLANT BEING MINOR IS REPRESENTED BY HIS GUARDIAN MOTHER, 1ST APPELLANT). ``` ``` BY ADVS.SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN ``` ## `RESPONDENTS/COUNTER PETITIONERS:` - `1 L.ROBERT RAJ, S/O.LUCAS, 13/111/KARUMANNOOR, PALUKAL(PO), K.K.DISTRICT, TAMIL NADU.` - `2 THE SHRIRAM GENERAL INSURANCE CO.LTD EPIF, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN STATE. REPRESENTED BY ITS MANAGER.` - `3 PRASANTHKRISHNAN, S/O.KRISHNAN NAIR, THIRUVATHIRA, MELATTUMOOZHI, VAMANAPURAM-695606.` - `4 SAJANA.J.S, D/O.SURENDRAN, TINKU BHAVAN, VAMANAPURAM(PO), THIRUVANANTHAPURAM,PIN-695606.` ``` MACA NO. 3089 OF 2017 ``` ``` -2- ``` ``` 5THE BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD, BRANCH OFFICE, ATTINGAL.P.O, PIN-695101. ``` ``` BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3089 OF 2017 ``` ``` -3- ``` ## `JUDGMENT` ``` The wife and children of Aju, who was unfortunately killed in a motor accident – which occurred on 19.10.2012, on account of the rash and negligent driving of the offending vehicle - have filed this Appeal, being aggrieved by the Award of the Motor Accidents Claims Tribunal, Attingal (‘Tribunal’, for short) in OP(MV) No.1283/2012. ``` ``` 2.Even though the appellants claimed ``` ``` Rs.1,21,46,000/-, limited to Rs.1,00,00,000/-, theTribunalhasawardedthemonly ``` ``` Rs.45,61,000/-; and they assert that this is ``` ``` primarily exiguous because it erred in computing ``` ``` the income in favour of the deceased. ``` ``` 3.Sri.G.Radhakrishnan – learned counsel for the appellants, submitted that, though ``` ``` sufficient evidence had been led by his clients before the Tribunal to establish the income of ``` ``` MACA NO. 3089 OF 2017 ``` ``` -4- ``` ``` the deceased, all of them were discarded, holding that they have not been properly proved. He argued that this was unfair and impermissible, particularly because Ext.A15 is the statutory Form-16 issued by the employer, under the provisions of the Income Tax Act. He pointed out that said Form clearly shows that, for the second quarter of the assessment year 2013-14, a sum of Rs.1,36,680/- had been paid to the deceased as salary and an amount of Rs.2,295/- as Tax Deducted at Source. He argued that, going by the said figure, it is limpid that the deceased had been paid nearly Rs.44,000/- as salary per month; and therefore, ``` ``` that said figure ought to have been accepted by ``` ``` the Tribunal. ``` ``` 4.Sri.G.Radhakrishnan further submitted that Ext.A12 - Salary Certificate, issued by the Senior Executive (Finance) of the company in ``` ``` MACA NO. 3089 OF 2017 ``` ``` -5- ``` ``` which the deceased was serving, certified his monthly salary to be Rs.48,800/-; but conceded that he had thereafter worked in another company. He pointed out that PW1 was examined - ``` ``` being the Manager of the said company; and therefore, that the aforesaid figure ought to have been adopted by the Tribunal, since there was nothing suspicious about it. He concluded ``` ``` his submissions on this aspect, predicating that Ext.A13 - Payment Voucher would also establish that an amount of Rs.48,800/- had been paid as ``` ``` salary to his client. ``` ``` 5.In response, Sri.P.Jacob Mathew – ``` ``` learned Standing Counsel for “Shriram General ``` ``` Insurance Company Ltd.” - on which the learned ``` ``` Tribunal has fixed 50% responsibility; and the learned Standing Counsel for the 5[th] respondent - “New India Assurance Company Ltd.” - on which the balance responsibility has been cast, argued ``` ``` MACA NO. 3089 OF 2017 ``` ``` -6- ``` ``` that the notional income of Rs.20,000/- adopted by the Tribunal in favour of the deceased is without error because there is no reliable document to establish it to any other sum. They ``` ``` then argued that, in fact, the Tribunal has erred in granting Rs.25,000/- as compensation under the head “Funeral Expenses”; and that no ``` ``` amounts could have been granted under the head “Loss of Love and Affection” in view of the declarations of the Hon’ble Supreme Court in ``` ``` United India Insurance Company Ltd. v. Satinder ``` ``` Kaur @ Satwinder Kaur [(2021) 11 SCC 780]. ``` ``` 6.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence ``` ``` on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 7.It is indubitable from the above that ``` ``` MACA NO. 3089 OF 2017 ``` ``` -7- ``` ``` the main controversy between the parties is as to the notional income of the deceased. The learned Tribunal has found that the deceased was highly qualified in computers and that Ext.A12 - ``` ``` Salary Certificate has been issued by a company by name “Stablix Solutions Pvt. Ltd.” It also noticed that Ext.A13 is a payment voucher; while, Ext.A15 is a statutory Form-16, issued under the Income Tax Act, showing the deduction of Tax at Source. ``` ``` 8.When one examines the afore documents, ``` ``` it comes out that the salary stated to have been ``` ``` paid to the deceased by “Stablix Solutions Pvt. Ltd.” was Rs.48,800/-, but this is not a safe ``` ``` standard, because it does not show whether it was gross salary or if it was added by other perquisites. Even though Ext.A12 was spoken about by PW1, I am of the view that the Tribunal was correct in not having relied upon the same. ``` ``` MACA NO. 3089 OF 2017 ``` ``` -8- ``` ``` 9.That said, however, one fails to understand how the Tribunal could have disregarded Ext.A15 - which is the statutory Form-16 issued under Section 203 of the ‘MV Act’ - on which substantial probative strength is attached, unless it had been properly rebutted. Interestingly, the Insurance Company took no steps at all to assail or challenge Ext.A15 and, in fact, accepts it; and am, therefore, of the firm view that this Court will be justified in going by its contents. ``` ``` 10.As per Ext.A15, an amount of Rs.1,36,680/- is seen paid as salary to the deceased for the second quarter of the assessment year 2013-14 (financial year 01.04.2012 to 31.03.2013); and an amount of Rs.2,295/- has been shown to have been deducted at source. Going by these entries, one can reasonably presume that the salary paid to the ``` ``` MACA NO. 3089 OF 2017 ``` **==> picture [22 x 9] intentionally omitted <==** ``` deceased was nearly Rs.40,000/- per month. Even if this Court is to deduct one third out of it towards taxes, variation in the salary, as also the chance of any other uncertainty being attached to it, the figure which can safely be adopted would be Rs.30,000/-. It is conceded ``` ``` that 40% future prospects is eligible; and hence, the income to be reckoned in the case of thedeceasedwouldbecomeRs.42,000/-. ``` ``` Axiomatically, the amount under the head “Loss of Dependency” would have to be revised to Rs.60,48,000/-. ``` ``` 11.That being said, there is some force in the submissions of Sri.P.Jacob Mathew that not ``` ``` more than Rs.15,000/- could have been granted by the Tribunal under the head “Funeral Expenses” (see National Insurance Company Ltd. v. Pranay Sethi[2017 (4) KLT 662 (SC)]; and that no additional amount could have been granted under ``` ## `MACA NO. 3089 OF 2017` **==> picture [30 x 9] intentionally omitted <==** ``` the head “Loss of Love and Affection” as per ``` ``` Satinder Kaur (supra). However, an amount of Rs.15,000/- ought to have been granted under the head “Loss of Estate” [again as per Pranay Sethi ``` ``` (supra) ], instead of Rs.10,000/- now awarded. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a)The compensation under the head “Loss of ``` ``` Dependency” is enhanced to Rs.60,48,000/-, ``` ``` (Rupees sixty lakhs forty eight thousand only), instead of Rs.43,20,000/- as granted by the ``` ``` Tribunal, adopting the notional income of the deceased to be Rs.30,000/-, adding 40% future ``` ``` prospects to it and deducting one fourth as his personal expenses. ``` ``` (b)The compensation under the head “Loss of ``` ``` Love and Affection” is deleted. ``` ``` (c)The compensation under the head “Funeral ``` ``` Expenses” is reduced to Rs.15,000/- (Rupees ``` ``` MACA NO. 3089 OF 2017 ``` ``` -11- ``` ``` fifteen thousand only), from Rs.25,000/- as ``` ``` awarded by the Tribunal. ``` - `(d) The compensation under the head “Loss of` ``` Estate” is enhanced to Rs.15,000/- (Rupees ``` ``` fifteen thousand only), from Rs.10,000/- as ``` ``` granted. ``` - `(e) In all other heads, the amounts granted` ``` by the Tribunal will remain intact. ``` ``` Consequently, the appellants will be at full ``` ``` liberty to recover the compensation, as enhanced ``` ``` by this Court, from the Insurance Company, along ``` ``` with interest at the rate of 8% (modifying the ``` ``` rate of interest of 9% granted by the Tribunal), ``` ``` from the date of claim until it is recovered. ``` ``` They will also be entitled to proportionate ``` ``` costs on the enhanced amount as ordered by the Tribunal. ``` ``` Needless to say, the other holdings of the ``` ``` Tribunal, including grant of liberty to the 2[nd] ``` ``` MACA NO. 3089 OF 2017 ``` **==> picture [30 x 9] intentionally omitted <==** ``` respondent – Insurance Company, to recover their portion of liability from respondent No.1 will remain unaltered. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```