Sabeena M and others vs United India Insurance Co Ltd

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 ``` ## `MACA NO. 1838 OF 2018` ``` AGAINST THE AWARD DATED 16.09.2017 IN OPMV 991/2015 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD ``` ## `APPELLANTS/PETITIONERS:` ``` 1SABEENA M AGED 32 YEARS W/O.MOHAMMED IBRAHIM, KARUVAPPARA, KOZHINJAMPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT. 2SHERIN I, (MINOR) D/O.MOHAMMED IBRAHIM, AGED 13 YEARS, REPRESENTED BY HER MOTHER SABEENA, W/O.MOHAMMED IBRAHIM, KARUVAPPARA, KOZHINJAMPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT. 3SHIFAD I. MINOR S/O.MOHAMMED IBRAHIM, AGED 7 YEARS, REPRESENTED BY MOTHER SABEENA, W/O.MOHAMMED IBRAHIM, KARUVAPPARA, KOZHINJAMPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT. 4SAPHIYAMMA W/O.MOHAMMED ISMAYIL, AGED 71 YEARS, KARUVAPPARA, KOZHINJAMPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV SRI.BINOY VASUDEVAN ``` ## `RESPONDENT/3RD RESPONDENT:` ``` UNITED INDIA INSURANCE CO LTD, MALABAR FORT BUILDING, G.B.ROAD, PALAKKAD-678001. BY ADVS. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA NO.1838 of 2018 2 ## `JUDGMENT` ``` The appellants, who are the legal heirs of Late Mohammed Ibrahim have filed this appeal calling into question the quantum of compensation awarded in their favour by the Motor Accidents Claims Tribunal, Palakkad ('Tribunal' for short), in O.P(MV) No. 991/2015. They say that, they were constrained to approach the learned Tribunal because, Mohammed Ibrahim was unfortunately killed in a road accident on 16.12.2015 – when the motorcycle he was riding was collided with the offending vehicle, driven in a rash and negligent manner. They assert that he suffered serious injuries and succumbed to it about five days later; thus forcing them to file the afore Original Petition, seeking an amount of Rs.51,05,000/- as compensation, but ``` MACA NO.1838 of 2018 3 ``` which has been allowed only to a sum of Rs.21,18,777/-.Theycontendthatthe ``` ``` compensation awarded is inadequate. ``` ``` 2.Sri.Sreejith Sreenath – learned counsel ``` ``` for the appellants, argued that the primary reason why the compensation awarded by the Tribunal is so exiguous is that, it has gone and ``` ``` fixed the notional income of the deceased, ``` ``` though there is uncontroverted evidence on ``` ``` record, namely Ext.A18 – copy of the Income Tax ``` ``` Returns, to establish that he was earning ``` ``` Rs.2,50,120/- in the previous Financial Year ``` ``` namely, 2013 – 14. He argued that, therefore, ``` ``` said figure ought to have been adopted by the Tribunal and axiomatically the compensation under the head 'Disability' would have been much higher. He then pointed out that, late Mohammed ``` MACA NO.1838 of 2018 4 ``` Ibrahim is survived by the appellants - who are his wife, children and mother - and that each of them is entitled to Rs.40,000/- under the head ``` ``` 'Loss of Consortium', but that the learned Tribunal has awarded only Rs.1,00,000/- under the said head. He thus prayed that the impugned Award be modified and the compensation enhanced. ``` ``` 3.Sri.P.Jacob Mathew – learned Standing Counsel for the Insurance Company, on the contrary, argued that the compensation awarded by the Tribunal is without any error and that, in fact, it has granted impermissible amounts under the head 'Loss of Consortium' to the 1[st] appellant. He asserted that not more than Rs.40,000/- could have been granted under the said head; while no amounts could have been granted to other appellants under the head 'Loss ``` MACA NO.1838 of 2018 5 ``` of Love and Affection'. ``` ``` 4.I have considered the afore submissions ``` ``` and have also gone through 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. He ``` ``` then submitted that, going by National Insurance ``` ``` Company Ltd. v. Pranay Sethi [2017 (4) KLT 662], ``` ``` not more than Rs.15,000/- could have been ``` ``` awarded under the heads “Funeral Expenses and ``` ``` “Loss of Estate”; while no amounts could have ``` ``` been granted to the appellants under the head ``` ``` compensation for “Pain and Suffering”, as per ``` ``` United India Insurance Company Ltd. v. Satinder ``` ``` Kaur @ Satwinder Kaur[(2021) 11 SCC 780]. He ``` ``` thus prayed that this appeal be dismissed, ``` MACA NO.1838 of 2018 6 ``` however, making the afore corrections. ``` ``` 5.I have examined the afore rival ``` ``` contentions of the parties and have tested them ``` ``` on the worth of the evidence on record – copies ``` ``` of which have been made available to this Court ``` ``` by the learned counsel for the parties across the ``` ``` Bar, with the express consent that they can be ``` ``` acted upon, without dispute. ``` ``` 6.The pleadings show that the appellants ``` ``` had claimed Rs.21,000/- to be the monthly income ``` ``` of the deceased, asserting that he was engaged ``` ``` in his own business. However, no evidence has ``` ``` been led by them to prove the avocation of the ``` ``` deceased, but Ext.A18 - Income Tax Returns had ``` ``` been marked to show that he was earning ``` ``` Rs.2,50,120/- as his gross income. The learned ``` ``` Tribunal, however, did not accept Ext.A18, ``` MACA NO.1838 of 2018 7 ``` finding the same to be for the Assessment Year 2014 – 15 – which is to say, for the Financial Year 2013-14 - but that the accident happened on 16.04.2015, which date is part of the next Financial Year. Even if it is assumed that the learned Tribunal was right in doing so, it was impermissible for it to have then reckoned notional income in favour of the deceased as if he was a “Coolie” relying upon the judgment of the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited. [(2011) 13 SCC 236]. I say so because, the figures mentioned in the impugned Award are only eligible to a person with an unascertainable income at the time of the accident and not to a person who has been shown to be making earnings, through other avocations ``` MACA NO.1838 of 2018 |8| |---| |`including business. In`<br>_`Rajani v. Oriental`_| |_`Insurance Company `_<br>_`[(2022) 5 KLT online 1012`_| |_`SC], `_<br>`the Hon’ble Supreme Court has, in fact,`| |`clarified this declaring that, in the case of a`| |`person who is not a “Coolie”, a more robust view`| |`ought to be taken.`| |`7.`<br>`In the case at hand, Ext.A18 shows that,`| |`at least for the Asse`<br>`s`<br>`sment Year 2014 -15, the`| |`deceased had an annual income of Rs.2,50,120/-.`| |`No doubt, the appellants had not been able to`| |`produce any other income tax return and`| |`therefore, an average of the income of the`| |`deceased cannot be arrived at. However, the`| |`factum of the deceased having earned the afore`| |`sum during the Assessment Year 2014-15 remain`| |`uncontested. I am of the view that this Court`| |`will be justified in adopting his notional`| MACA NO.1838 of 2018 9 ``` income to be Rs.14,000/- per month also being guided by the judgment of the Hon’ble Supreme Court in Sangita Arya and others v. Oriental Insurance Company Ltd. and others[(2020) 5 SCC ``` ``` 327]. ``` ``` 8.That said, since the deceased was only 38 years at the time of the accident, his notional income has to be certainly added with ``` ``` 40%, towards future prospects, as perPranay Sethi (supra). ``` ``` 9.Now coming to the arguments of ``` ``` Sri.P.Jacob Mathew – learned Standing Counsel ``` ``` for the Insurance Company, he is right in ``` ``` asserting thatPranay Sethi(supra) authorises ``` ``` not more than Rs.15,000/- under the heads ``` ``` “Funeral Expenses” and “Loss of Estate”; and not ``` ``` more than Rs.40,000/- under the head “Loss of ``` MACA NO.1838 of 2018 10 ``` Consortium”, to the appellants. The sums ``` ``` awarded by the learned Tribunal will, therefore, ``` ``` require to be modified and made in tune with the said declarations. ``` ``` 10.Similarly, Satinder Kaur @ Satwinder Kaur (supra) prohibits grant of compensation under the heads “Pain and Suffering” and “Love and ``` ``` Affection”, once ``` ``` “Loss of Dependency” is fully compensated. ``` ``` Resultantly, this appeal is allowed in the ``` ``` following manner: ``` ``` a)The compensation under the head “Loss of ``` ``` Dependency” is revised to Rs.26,46,000/-, ``` ``` reckoning the notional income of the deceased to be Rs.14,000/- per month, with 40% future prospects added and one fourth deducted towards ``` ``` his personalexpenses, as perSarla Verma v. ``` MACA NO.1838 of 2018 11 ``` Delhi Transport Corporation[2010(2)KLT802 ``` ``` SC]. ``` ``` b)The compensation under the head “Funeral Expenses” is reduced to Rs.15,000/-, from Rs.25,000/- awarded by the learned Tribunal, as per Pranay Sethi (supra). ``` ``` c)The compensation under the head “Loss of Estate” is reduced to Rs.15,000/-, from ``` ``` Rs.50,000/- awarded by the learned Tribunal, as per Pranay Sethi (supra). ``` ``` d)The compensation awarded by the learned ``` ``` Tribunal under the heads “Pain and Suffering” ``` ``` and “Love and Affection” is both deleted. ``` ``` e)The compensation under the head “Loss of Consortium” is enhanced to Rs.1,60,000/-, from Rs.1,00,000/-, reckoning Rs.40,000/- in favour ``` ``` of each of the appellants as per Pranay Sethi ``` MACA NO.1838 of 2018 12 ``` (supra). ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellants will be entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 8.5% from the date of filing of the claim until it is realised. ``` ``` The appellants will also be entitled to proportionate costs on the enhanced amounts as ``` ``` ordered by the Tribunal. ``` ``` 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. ``` MACA NO.1838 of 2018 13 ``` Even though I confirmed all the other ``` ``` findings of the learned Tribunal, I leave ``` ``` liberty to the appellants to move it, if they ``` ``` require any amounts to be released to the minor ``` ``` for educational purposes, which shall be assessed and ordered based on all relevant and germane aspects. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` SAS ```