Royal Sundaram Alliance Insurance Company Limited v. K. Reena and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938 MACA.No. 3836 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 1549/2013 of M.A.C.T., THALASSERY DATED 29.02.2016 APPELLANT(S)//3RD RESPONDENT : -------------------------------------- ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED KANNUR, NOW REP. BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI- 600 002 BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S)//PETITIONERS: --------------------------- ## 1. K.REENA W/O. LATE BABU, JAYA BHAVAN, KEEZHUR AMSOM, PUNNAD P.O. THALASSERY, PIN- 670 703 ## 2. K.ANJANA BABU (MINOR) D/O. LATE BABU, JAYA BHAVAN, KEEZHUR AMSOM, PUNNAD P.O. THALASSERY, PIN- 670 703 ## 3. K.NIRANJAN BABU(MINOR) S/O. LATE BABU, JAYA BHAVAN, KEEZHUR AMSOM, PUNNAD P.O. THALASSERY, PIN- 670 703 ## 4. K.M.KAMALAKSHI AMMA W/O. LATE NANU NAMBIAR, LEENA NIVAS, KEEZHALLUR AMSOM, ELEMPARA P.O THALASSERY- 670 595 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.3836 OF 2016 ==========================** Dated this the 8[th] day of December, 2016 ## **JUDGMENT** _Ravikumar, J._ The Royal Sundaram Alliance Insurance Co.Ltd., the third respondent in O.P.(MV).No.1549 of 2013 on the files of the Motor Accidents Claims Tribunal, Thalassery filed this appeal aggrieved by the quantum of compensation granted by the Tribunal as per the award passed thereon on the ground of exorbitancy. The claim petition was filed under section 166 of the Motor Vehicles Act by the legal heirs of one Babu who died in a motor vehicle accident occurred on 1.8.2012. While he was driving a car from Mattannur to Punnad, it collied with a Bolero Jeep bearing Reg.No.KL-13/T-8388 driven by the second respondent. In the claim petition, it was alleged that the accident occurred due the rashness and negligence on the part of the second **M.A.C.A.3836/2016** 2 respondent and the claimants had also taken necessary averments to make the first respondent, the owner of the said vehicle vicariously liable and the appellant, the third respondent liable to indemnify the insured-owner. As per the impugned award, the Tribunal arrived at a finding that the accident occurred solely due to the negligence of the second respondent and taking into account the relevant factors, passed an award for a total compensation of `29,97,000/- with interest at 9% per annum from the date of the petition till realisation. 2.We have heard the learned Senior Counsel for the appellant. The main contention of the learned Senior Counsel is that the Tribunal went wrong in fixing the monthly income of the deceased as `15,000/and then making an addition of 30% reckoning the future prospects. It is contended that though Ext.A7 salary certificate was attested by Consulate General of India, Jiddah, it is to be noted that no details touching the nature of employment including whether it is permanent or not, were specifically mentioned therein and it contains only a certification to the effect that at the relevant point of time, the deceased was working there and was earning 4000 riyals. It is **M.A.C.A.3836/2016** 3 contended that the Tribunal fixed the monthly income by converting it into the Indian Rupees and treated that the appellant was earning `60,000/- per month and then brought it down to the Indian standards fixed the monthly income as `15,000/-. Evidently, after fixing the monthly income as `15,000/-, the Tribunal made an addition of 30% to the said income relying on the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** and thereafter, taking into account the number of dependents, ¼ of the said income was deducted towards personal expenses of the deceased. Consequently, the monthly income was taken for calculation purpose as `14,625/-. There is no dispute regarding the multiplier adopted by the Tribunal as it was identified with reference to the age of the deceased at the time of the accident. The further grievance is to the effect that having calculated compensation under the head loss of dependency taking the relevant factors as above, the Tribunal granted `1,00,000/- towards loss of estate and an amount of `3,00,000/- towards loss of love and affection. The deceased was survived by his widow, two minor children and mother. The contention is that after granting **M.A.C.A.3836/2016** 4 compensation of `1,00,000/- under the head loss of consortium to the wife, she could not have been granted a share on the compensation under head loss of love and affection. It is further contended that if it is taken that no such amount was alloted to her as per the impugned award, it would amount to granting of `1,00,000/- each to the children and aged mother under the head loss of love and affection and in which event also, it is to be taken as exorbitant. In such circumstances, it is contended that the granting of compensation under the aforesaid heads and the manner in which the compensation was assessed under the head loss of dependency are erroneous and an appellate interference is called for. 3 _._ We have gone through the impugned award. In the light of Ext.A4 passport, Ext.A5 statement of bank account and Ext.A7 salary certificate, there is absolutely no room for doubting the fact that the deceased was working abroad i.e., in Saudi Arabia. The question is whether genuineness and correctness of Ext.A7 can be doubted. As noticed hereinbefore, a bare perusal of the same would reveal that it was counter signed by the Consulate General of India, Jiddah. It is **M.A.C.A.3836/2016** 5 permissible as he was empowered under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (for short 'the Act'). When such a document was countersigned by the Consulate General of India in terms of section 3 of the Act and when it carries certification regarding the income and employment abroad, we are of the view that it has to be taken as genuine and correct. Anyway, the contrary is not proved. The Tribunal accepted the same and converted its value in Indian Rupees. The conversion of 4000 Saudi Riyals, at the rates prevalent in the year 2012, as Rs.60,000/- is almost accurate though the accurate amount was slightly less by about Rs.827/-. A perusal of the impugned award would reveal that the Tribunal fixed the monthly income at `15,000/- for calculation purpose after applying the yardstick of Indian standards. Taking note of the fact that the appellant was belonging to the age group of 40-50 years at the time of death, 30% was added reckoning future prospects in terms of the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** Thereafter, the Tribunal effected a deduction of ¼ of the same taking into account the number of dependants. The **M.A.C.A.3836/2016** 6 question is whether the fixation of the monthly income by the Tribunal in respect of the deceased who was working abroad, in the aforesaid manner, invites interference. 4. The learned counsel relied on the decision in **Valsamma v. Binu Jose [2014 (1) KLT 10]** to contend that the fixation of the monthly income is erroneous. We have gone through the said decision. In that case, the deceased was working in Oman and was getting `20,000/- per month. The salary certificate was counter signed by Consulate General in terms of the provisions of the Act. A scanning of the said decision would reveal that the Tribunal after applying Indian standards fixed the monthly income of the deceased only as `4,000/-. But at the same time, on a reconsideration of the entire aspects, this Court re-fixed the monthly income as `5,000/-. To know how the said amount was arrived at, it is only proper and profitable to refer paragraphs 11 of the decision in **Valsamma** 's case. It reads thus:- “It may be mentioned here that employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such **M.A.C.A.3836/2016** 7 circumstances, it cannot be said that it is a permanent employment as in a government service there. If he is a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to the dependents of the victim on that basis. In the case of a nonpermanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such circumstances, we will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon. So, the Tribunal was perfectly justified in not relying on the document produced and the income alleged to have been derived by the deceased at Oman for the purpose of considering the compensation payable on his death.” A careful analysis of the decision would reveal that this Court has not laid down a rule that only ¼[th] of the income can be taken as the monthly income in all such cases. True that in such cases, to assess the income of such a person, in the context of Indian standards, the **M.A.C.A.3836/2016** 8 probable income which he may have fetched if he was working in India during the relevant time, has to be taken into account. Then the question is whether the addition of 30% is liable to be interfered with. In view of the dictum laid down in **Rajesh** 's case (supra) and taking into account the age of the deceased, it cannot be said that the Tribunal had erroneously made addition of 30% to the income reckoning the future prospects. 5. Now, we will consider grievances regarding the granting of compensation under the heads loss of consortium, loss of love, loss of amenities and loss of estate. As regards the compensation for loss of love and affection, it is not clear as to what exactly is the amount granted thereunder to the wife viz., the first respondent after granting `1,00,000/- towards loss of consortium. Certainly, after getting `1,00,000/- towards loss of consortium, she is not entitled to get a share in the compensation granted towards loss of love and affection. In such circumstances, if it is taken that `3,00,000/- was granted to the other three claimants i.e., minor children and mother, of the deceased there is substance in the contention of the learned counsel for the **M.A.C.A.3836/2016** 9 appellant that what was granted by the Tribunal under that head is in excess. So also, it is true that in the absence of any evidence regarding the estate left by a deceased person what is permissible is only to give a conventional amount under that head and at any rate, granting of compensation of `1,00,000/- towards loss of estate is certainly on the higher side in the absence of evidence in that regard. In short, viewing the assessment of compensation under the aforesaid two heads in that angle it can only be taken that an amount of `2,00,000/- was granted in excess. But that by itself cannot be a reason for interfering with an award in a claim petition claiming compensation for death. The question is whether it can be adjusted to make good the inadequate compensation, if any, granted under any other head. We have already found that the fixation of the monthly income as `15,000/- taking note of the certification in Ext.A7 cannot be said to be erroneous or excessive or illegal warranting appellate interference. The question is whether the total compensation granted is the just compensation to which the claimants are entitled and if it is found that what is granted as total compensation is the just **M.A.C.A.3836/2016** 10 compensation, the fact that under certain heads excessive compensation was granted cannot be ground for interference. In this case, the Tribunal converted the income of the deceased revealed from Ext.A7 to the Indian Standards. On such conversion, it was found that he was earning Rs.60,000/-. We are of the view that if `20,000/- is fixed as monthly income of the deceased for calculation purpose and 15% or even 10% is added to the said income reckoning the future prospects, the appellant would be entitled to get more than `3,00,000/in addition to the amount already granted towards loss of dependency. In such circumstances, the amount in excess could be adjusted to make good the inadequately granted compensation under other heads. In short, while upholding the contentions of the appellant that the Tribunal went wrong in granting compensation to the first respondent widow, a share in the compensation for loss of love and affection after granting compensation for loss of consortium and further that the compensation granted to the other respondents towards loss of love and affection is also on the higher side, we are of the view that the impugned judgment calls for no interference. Taking note of the fact **M.A.C.A.3836/2016** 11 that the deceased was employed abroad and was aged only 44 years and was earning `60,000/- per month and he was survived by the claimants who are his widow aged 40 years, daughters aged respectively 12 years and 6 years and mother, at the time of application, we do not find any reason to hold that the Tribunal has granted exorbitant compensation warranting appellate interference and we are of the view that the compensation ultimately granted is a just compensation. In such circumstances, we do not find any reason to admit this appeal and consequently, it is dismissed _in limine_ . There will be no order as to costs. **Sd/-** ## **C.T. RAVIKUMAR** **(JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.3836/2016** 12 **C.T. RAVIKUMAR, J.** **M.A.C.A.3836/2016** 13 **JUDGMENT September, 2010**