Royal Sundaram Alliance Insurance Company Limited vs Subaida 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. 3242 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 1086/2012 of M.A.C.T., MANJERI DATED 16-04-2016 APPELLANT(S)/3RD RESPONDENT: --------------------------- ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED KOZHIKODE, NOW REPRESENTED 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)/PETITIONER: ------------------------- ## 1. SUBAIDA W/O. LATE MUHAMMED ANISUL HACK, CHEKIDAPURATH HOUSE, CHEMMANKADAVU, DOWN HILL, MALAPPURAM P.O - 676 505. 2. AHAMMED BADUSHA (MINOR) S/O. LATE MUHAMMED ANISUL HACK, CHEKIDAPURATH HOUSE, CHEMMANKADAVU, DOWN HILL, MALAPPURAM P.O - 676 505. 3. HANEENA (MINOR) D/O. LATE MUHAMMED ANISUL HACK, CHEKIDAPURATH HOUSE, CHEMMANKADAVU, DOWN HILL, MALAPPURAM P.O - 676 505. 4. NAFEESA W/O. AHAMMED, CHEKIDAPURTH HOUSE, CHEMMANKADAVU, DOWN HILL, MALAPPURAM P.O - 676 505. R1 -R 4 BY ADV. SRI.M.R.ARUNKUMAR R1 -R 4 BY ADV. SRI.P.SHAMMI NAVAS 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.3242 OF 2016 ==========================** Dated this the 8[th] day of December, 2016 ## **JUDGMENT** _Jyothindranath, J._ This appeal is preferred by the insurance company challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV).No.1086 of 2012. 2.When this appeal came up for admission, the learned counsel for the appellant as well as the counsel for the respondents/claimants were present. The learned senior counsel appearing for the insurance company submitted before us that a motor vehicle accident took place on 20.4.2012 wherein one Muhammed Anisul Hack sustained grievous injuries and succumbed to the said injuries. The legal heirs **M.A.C.A.3242/2016** 2 moved a claim petition seeking a total compensation of `20,00,000/-. The Tribunal awarded a sum of `22,05,431/-. 3.The main submission made by the learned senior counsel for the appellant is that the Tribunal considered the monthly income of the deceased as `8,000/-. The case of the claimants was that the deceased was working as Draftsman 3D Design in Span Consultant, Civil Engineers and Architects, Malappuram. Even though there was no reliable evidence, the Tribunal accepted the said claim and notionally fixed the monthly income as `8,000/-. There was nothing to show that the deceased was a salaried person; even though, the Tribunal considered 50% enhancement towards future prospects and in effect, considered `12,000/- as monthly income. It is also the grievance of the appellant that even though `1,00,000/- was awarded towards loss of consortium to the wife, again a compensation of `1,00,000/- was awarded to the wife towards loss of love and affection. And further, the Tribunal awarded `3,50,000/- towards loss **M.A.C.A.3242/2016** 3 of love and affection to the claimants and it is on a higher side, especially when no specific reason highlighted by the Tribunal for granting the said amount. It is the further grievance that the compensation awarded towards loss of estate is also on a higher side. 4.The learned counsel for the respondents/claimants submitted before us that the deceased was working in a firm namely Span Consultant, Civil Engineers and Architects. Ext.A9 experience certificate was produced before the Tribunal. It can be seen that he was drawing a salary of `15,000/- per month. This aspect was not considered properly by the Tribunal. The Tribunal should have accepted Ext.A9 certificate especially, when deceased was a skilled worker and the monthly income should have been fixed as `15,000/-. 5.After hearing the learned counsel on both sides and also after going through the award, we feel that the appeal can be disposed of, at the admission stage itself. We heard the learned counsel in detail. **M.A.C.A.3242/2016** 4 6.In this case, one of the grievances of the appellant is that the Tribunal should not have considered the monthly income as `8,000/when there is no reliable evidence regarding occupation and income. Surely, the case of the respondents is that the deceased was working as a 3D design Draftsman. But it is a fact that no document produced to show his actual qualification as a Draftsman to corroborate the said claim. It is also relevant to note that the Tribunal refused to accept Ext.A9 certificate on the ground that it is not properly proved. It is highlighted by the Tribunal that Ext.A9 has to be proved. Ext.A9 experience certificate cannot be equated with an employment certificate. Ext.A8 is the SSLC certificate. The case of the respondents/claimants is that it is issued by a technical school. That alone will not be sufficient to show that the deceased was a skilled worker. But, considering the fact that the accident occurred in the year 2012 and further keeping in mind that in the case of a coolie who met with an accident in the year 2004, the Apex Court considered an income of `4,500/- [ **Ramachandrappa v. Manager, Royal** **M.A.C.A.3242/2016** 5 ## **Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236],** in the case of a person having the qualification at least SSLC, that also with vocational training, an income of `8,000/- per month cannot be treated as exorbitant. In such circumstances, we are inclined to accept `8,000/- as the monthly income of the deceased. Another aspect highlighted by the learned senior counsel is that as there was no positive evidence to the effect that the deceased was a salaried person or self employed person, adopting 50% towards future prospects was not correct. There is force in the said submission. When the Tribunal refused to accept the case of the claimants that the deceased was an employed person, then, surely, the Tribunal should have considered only 30% enhancement towards future prospects. When there is no positive evidence regarding his occupation, we are only inclined to consider 30% towards future prospects. Thus, the amount available towards calculation purpose will be `10,400/-. In this case, the age of the deceased was 39 years. The proper multiplier available will be 15. . Considering the number of dependents, the deduction will be 1/4[th] **M.A.C.A.3242/2016** 6 Thus, the compensation available on the head of loss of dependency by using a deduction of ¼ towards personal expenses will be `14,04,000/- [(8000+30%) x12 x15 x3/4]. Apart from this, a reassessment is also warranted as excess amount is seen awarded by the Tribunal on some other heads. It can be seen that on the head of loss of consortium, the first respondent who is the wife of the deceased will be entitled for `1,00,000/-. The said amount awarded. In this case, in addition, the Tribunal awarded `3,50,000/- towards loss of love and affection. It is on a higher side. The 4[th] respondent is the mother of the deceased. The respondent Nos.2 and 3 are minor children of the deceased. Considering the age of the respondent Nos.2 and 3 as well as the aged mother, respondent Nos.2 to 4 will be entitled to get `50,000/- each towards loss of love and affection. Thus, respondent Nos.2 to 4 will be entitled for a total sum of `1,50,000/- on that head. Similarly, on the head of loss of estate, the Tribunal awarded `10,00,00/- saying that it is the conventional amount. It is on a higher side. In this case, there is nothing to show **M.A.C.A.3242/2016** 7 that the deceased was making any savings and when there is no positive evidence regarding savings, the respondents will be only entitled for `10,000/- towards loss of estate. The said amount awarded. Towards funeral expenses, the respondents will be entitled for a sum of `25,000/-. Towards pain and suffering, no amount is seen awarded by the Tribunal. A sum of `10,000/- awarded towards pain and suffering. Towards medical expenses, the Tribunal awarded only `4,431/- based on Ext.A10 series of medical bills. The said amount awarded. Towards damage to clothes, `1,000/- is awarded. Towards transportation expenses, `5,000/- awarded. Thus, the respondents/claimants will be entitled for a total compensation of `17,09,431/- which is rounded off to `17,09,500/-. Thus, the impugned award is set aside. It is modified as `17,09,500/-. The insurance company who is the third respondent before the Tribunal shall pay the said amount within three months from the date of receipt of a copy of this judgment. Considering the totality of the circumstances, we are maintaining the interest awarded by the **M.A.C.A.3242/2016** 8 Tribunal. The first respondent will be exclusively entitled for the compensation granted under the head of loss of consortium. Compensation granted under the head of loss of love and affection shall be equally divided in between respondents 2 to 4. From the balance amount available, a consolidated amount of `1,00,000/- shall be paid to the fourth respondent who is the mother of the deceased. The balance amount shall be shared in the ratio 2:1:1. The compensation payable to the minor children shall be deposited in a nationalised bank with maximum benefits till they attain majority. The compensation payable to the first respondent shall be released. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.3242/2016** 9 **C.T. RAVIKUMAR, J.** **M.A.C.A.3242/2016** 10 **JUDGMENT September, 2010** **M.A.C.A.3242/2016** 11