Renuka Devi and others v. Reliance General Insurance Co. Ltd. and Others (MACA 956/18)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, ``` ## **`1945`** ## **`MACA NO. 956 OF 2018`** ## **`AGAINST THE JUDGMENT IN OPMV 1208/2011 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL ALAPPUZHA`** ## **`APPELLANT/PETITIONERS:`** - `1 RENUKA DEVI AGED 40 YEARS, W/O.LATE HARIKUMAR, HARI BHAVANAM, KARUVATTA, VADAKKUMMURI P.O., ALAPPUZHA-690517.` - `2 SREEDEV AGED 21 YEARS, S/O.LATE HARIKUMAR, HARI BHAVANAM,KARUVATTA, VADAKKUMMURI P.O., ALAPPUZHA-690517.` ``` 3KRISHNA PRASAD AGED 11 YEARS, S/O.LATE HARIKUMAR, MINOR REPRESENTED BY HIS MOTHER, RENUKA DEVI,W/O. HARIKUMAR, HARI BHAVANAM,KARUVATTA, VADAKKUMMURI P.O., ALAPPUZHA-690517. BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SRI.NIRMAL V NAIR ``` ## **`RESPONDENTS/RESPONDENTS 2 TO 4:`** - `1 RELIANCE GENERAL INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, KABEER PLAZA, BOAT JETTY, ALAPPUZHA-688001.` - `2 VASUDEVAN ASARI AGED 67 YEARS, PUTHENKANDATHIL, KARUVATTA, VADAKKUMMURI P.O., ALAPPUZHA-690517.` - `3 EASWARIAMMA AGED 63 YEARS, W/O.VASUDEVAN ASARI,PUTHENKANDATHIL, KARUVATTA,VADAKKUMMURI P.O., ALAPPUZHA-690517.` **MACA 956/18** ..2.. ``` BY ADVS. SRI.M.R.SUDHEENDRAN AJITH KUMAR (128/84) R. SMT.ASHA P. NAIR (A-1788) ``` ``` SRI TAPAS VARMA-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 956/18** ..3.. ## **JUDGMENT** When late Harikumar was riding his bicycle through the Kollam-Alappuzha National Highway, he was knocked down by the offending car, driven by the 1[st] respondent in a rash and negligent manner. He sustained serious injuries, unfortunately succumbing to them on the same day; whereupon, his legal heirs - the appellants herein - filed OP(MV)No.1208/2011, before the Motor Accidents Claims Tribunal, Alappuzha, seeking compensation of Rs.15,33,000/-, limited to Rs.10,00,000/- but which has been allowed only to an extent of Rs.9,58,500/-. The appellants assail the compensation as being inadequate. 2. Sri.Rinny Stephen Chamaparampil – learned counsel for the appellants, argued that the primary reason why the compensation has been fixed low in favour of his client is because the notional income of the deceased, has been taken to be a mere Rs.5,000/-, even though there is evidence to show that he was earning a minimum of Rs.600/- per day. He further pointed out that, Ext.A9 – Passport, which contains a Work Visa in favour of the deceased, would establish to a certain level that his capacity to earn abroad was much higher than what his clients ## **MACA 956/18** ..4.. had claimed. He concluded saying that, even though the appellants are entitled to compensation for ‘Loss of Consortium’ at the rate of Rs.40,000/- per head, only an amount of Rs.1,00,000/- has been granted; that too, only in favour of the 1[st] appellant. He thus prayed that this appeal be allowed. 3. Sri.Tapas Varma – learned Standing Counsel for the Insurance Company, on the other hand, submitted that, not only is the compensation awarded by the Tribunal under the head ‘Loss of Dependency’ just and fair; the learned Tribunal has been, in fact, more than generous in awarding amounts which are not authorized to the appellants under the heads ‘Funeral Expenses’ and ‘Loss of Estate’; while, it has granted impermissible amounts under the heads ‘Pain and Suffering’ and ‘Loss of Love and Affection’. He thus prayed that this appeal be dismissed; however, correcting the afore errors. 4. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 5. It is without dispute that Harikumar was 38 years at the time of the accident and his consequent unfortunate death. ## **MACA 956/18** ..5.. The appellants claim that Late Harikumar was a Carpenter and they have sought to establish it through Ext.A8 – Salary Certificate, as also Ext.A9 – Passport, which contain a Work Visa in his name for an employment abroad in such capacity. However, as rightly found by the learned Tribunal, Ext.A8 is the Salary Certificate issued by a private entity which has not been proved at all and hence incapable of being relied upon; while Ext.A9 - Passport would only show that late Harikumar had an opportunity to travel abroad on the strength of a Work Visa. Both these documents cannot affirmatively prove his income at the time of the accident; and obviously, the learned Tribunal had no other option but to fix it notionally. However, while doing so, it ought to have been guided by the stipulations in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company**_ _**Ltd.**_ [(2011) 13 SCC 236], which mandates that, even in the case of a ‘Coolie’, or a person with unascertainable income, in the year 2011 – when the accident occurred - the minimum figure to be reckoned is Rs.8,000/- per month. 6. That said, there is certainly evidence on record to prove that late Harikumar was not a ‘Coolie’, but one who was involved in the avocation of carpentry. Though Ext.A8 - Salary Certificate cannot be relied upon to establish his income, it surely ..6.. ## **MACA 956/18** lends light on the fact that he was Carpenter and this is further fortified by Ext.A9 – Passport, which also contains a Work Visa in his favour in a country abroad for such position. Ineluctably, therefore, the ratio in _**Rajani v. Oriental Insurance Company Ltd.**_ [2022 (5) KLT 1012] would come to play, under which, this Court will have to take a more robust view in the case of a person like Harikumar, who is involved in a technical avocation. I, therefore, propose that his notional income be fixed at the rate of Rs.9,000/- per month, which is a mere Rs.1,000/- more than what has been authorized by **Ramachandrappa** (supra) in the case of ‘Coolie’. 7. The notional income being so fixed, since late Harikumar was only 38 years at the time of the accident, his income will have to be added by a further 40% as future prospects as per _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. 8. The afore being said, there is great force in the submissions of Sri.Tapas Varma that not more than Rs.15,000/could have been awarded by the Tribunal under the heads ‘Funeral Expenses’ and ‘Loss of Estate’, as per **Pranay Sethi** (supra); while, no amounts could have been granted under the heads ‘Pain and Suffering’ and ‘Loss of Love and Affection’, as per **MACA 956/18** ..7.. ## _**United India Insurance Company Ltd. v. Satinder Kaur @**_ _**Satwinder Kaur**_ [(2021) 11 SCC 780]. However, an amount of Rs.2,00,000/- becomes eligible to the appellants and respondents 2 and 3, who are the wife, children and parents of late Harikumar, under the head compensation for ‘Loss of Consortium’, at the rate of Rs.40,000/- per head, as per **Pranay Sethi** (supra). 9. Finally, the question arises as to what is the amount to be deducted from the income of the deceased towards his personal expenses. It is undisputed that the appellants, along with respondents 2 and 3 - the parents of Harikumar, are the legal heirs. Obviously, therefore, as per _**Sarla Verma v. Delhi Transport Corporation**_ [2010 (2) KLT 802], only one fourth could be deducted from his income towards his personal expenses. In the afore circumstances, this appeal is partly allowed in the following manner: - a The compensation for ‘Loss of Dependency’ is enhanced to Rs.17,01,000/-, from Rs.6,75,000/- now granted, reckoning the notional income of the deceased to be Rs.9,000/- per month, with 40% future prospects to be added to it and one fourth deducted towards his personal expenses, as per **Sarla Verma** (supra). **MACA 956/18** ..8.. - b The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.2,00,000/-, at the rate of Rs.40,000/- per head to the appellants and respondents 4 and 5, as per **Pranay Sethi** (supra) - c The compensation under the head ‘Funeral Expenses’ is reduced to Rs.15,000/-, from Rs.25,000/-, as per **Pranay** **Sethi** (supra). - d The compensation under the head ‘Loss of Estate’ is reduced to Rs.15,000/-, from Rs.50,000/-, as per **Pranay Sethi** (supra). - e The compensation awarded by the Tribunal under the heads ‘Pain and Suffering’ and ‘Loss of Love and Affection’ is deleted. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellants and respondent Nos.2 and 3 will be entitled to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 8% per annum from the date of claim until it is realised. The appellants and respondent nos.2 and 3 will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. **MACA 956/18** **==> picture [20 x 9] intentionally omitted <==** Needless to say, while calculating interest on the amount enhanced by this Court, a period of 419 days - being the delay in filing this Appeal - shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ACR **MACA 956/18** ..10.. ## **APPENDIX OF MACA NO.956 OF 2018** ``` APPELLANT ANNEXURES ANNEXURE.A ``` ``` TRUE COPYOF THE EMPLOYMENT VISA ISSUED ON 07/06/2009 BY THE MINISTRY OF INTERIOR, UNITED ARAB EMIRATES ```