Sai Tomy and others v Deva Prasad and The Oriental Insurance Company

MACA No.2021 of 2019 1 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:29200 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE JOHNSON JOHN ``` ``` FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 MACA NO. 2021 OF 2019 ``` ``` AGAINST THE AWARD DATED 26.10.2018 IN OPMV NO.265 OF ``` ``` 2016 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA / II ADDITIONAL MACT, THODUPUZHA. ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 SAI TOMY, AGED 55 YEARS, W/O.LATE TOMY MATHEW, KAVAPURACKAL HOUSE, KARINKUNNAM VILLAGE, THODUPUZHA TALUK, PIN-685 586, IDUKKI.`** - **`2 ANJANA.T.TOM, AGED 32 YEARS, D/O.LATE TOMY MATHEW, CHETTIPARAMBIL, KARINKUNNAM VILLAGE, THODUPUZHA TALUK, PIN-685 586, IDUKKI.`** - **`3 ANUJA C TOM, AGED 23 YEARS, D/O.LATE TOMY MATHEW, KAVAPURACKAL HOUSE, KARINKUNNAM VILLAGE, THODUPUZHA TALUK, PIN-685 586, IDUKKI.`** - **`4 BRIJITH MATHEW, AGED 78 YEARS, MOTHER OF LATE TOMY MATHEW, KAVAPURACKAL HOUSE, KARINKUNNAM VILLAGE, THODUPUZHA TALUK, PIN-685 586, IDUKKI.`** ``` BY ADV ANU S NAIR. ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 DEVA PRASAD, S/O.MADHUSOODANA PILLAI(OWNER CUM DRIVER), MUKKILAKKATTU HOUSE, PURAPPUZHA P.O., IDUKKI DISTRICT, THODUPUZHA, PIN-685 583.`** - **`2 THE BRANCH MANAGER, THE ORIENTIAL INSURANCE COMPANY, DIVISIONAL OFFICE, JYOTHI SUPER BASAR, THODUPUZHA, PIN-685 584.`** ## **`BY ADV SRI.VPK.PANICKER.`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2025, THE COURT ON 04-04-2025 DELIVERED THE FOLLOWING: ``` MACA No.2021 of 2019 2 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:29200 ``` **JOHNSON JOHN, J.** **----------------------------------------------MACA No.2021 of 2019** **----------------------------------------------Dated this the 4[th] day of April, 2025.** **J U D G M E N T** The petitioners in O.P (MV) No. 265 of 2016 on the file of the Motor Accident Claims Tribunal, Thodupuzha filed this appeal seeking enhancement of compensation. 2. The claim petition was originally filed by the injured, but he died during the pendency of the petition and additional petitioners 2 to 5 were impleaded as the legal representatives of the original petitioner. 3. to the on According petitioners 11-12-2015, while the original petitioner was standing on the side of the road, motorcycle ridden by the first respondent in a rash and MACA No.2021 of 2019 3 **==> picture [58 x 57] intentionally omitted <==** `2025:KER:29200` negligent manner caused to hit him and thereby he sustained severe injuries. The original petitioner died on 03-06-2017 and as per the order in I.A No.1112 of 2017, additional petitioners 2 to 5 were impleaded. The first respondent is the owner of the offending motorcycle and the second respondent is the insurer. 4. Before the Tribunal, PW1 was examined and Exts.A1 to A44 were marked from the side of the petitioners and from the side of the respondent, Ext.B1 to B3 were marked. 5. The Tribunal recorded a finding that the death of the original petitioner was due to the injuries sustained in the accident and that the accident occurred only because of the negligence on the part of the first respondent. The Tribunal awarded a total compensation of MACA No.2021 of 2019 4 **==> picture [58 x 57] intentionally omitted <==** `2025:KER:29200` Rs.28,60,060/- to the petitioners. The findings of the Tribunal regarding negligence and liability are not under challenge. 6. Heard the learned counsel for the appellants and the learned counsel for the respondent/insurance company. 7. The learned counsel for the appellants argued that the Tribunal rejected Ext.A13 income tax return acknowledgment for the assessment year 2015-16 by recording a finding that the said return was filed deliberately in the year 2018 after the receipt of Ext.A35 notice from the income tax office regarding the non filing of income tax return and the said finding is not factually correct. A perusal of Ext.A13 would show that the return has been electronically filed and verified by Sri.Tomy Mathew in the capacity of having PAN BKHPM3168D MACA No.2021 of 2019 5 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:29200 ``` on 30-03-2016. 8. Ext.A10 income tax return for assessment year 2013-14, Ext.A11 income tax return for assessment year 2014-15 and Ext.A12 income tax return for the assessment year 2015-16 are not authentic copies with proper acknowledgment regarding the details of the electronic filing as shown in Ext.A13. In that circumstance, Exts.A10 to A12 cannot be relied upon for a finding regarding the income of the deceased and therefore, the Tribunal is justified in rejecting Exts.A10 to A12. But the Tribunal is not justified in rejecting Ext.A13 income tax return acknowledgment for the assessment year 2015-16 as it is clearly stated therein that the return had been electronically uploaded on 30-032016 and therefore, the finding of the Tribunal that the said return was filed deliberately in MACA No.2021 of 2019 6 **==> picture [58 x 57] intentionally omitted <==** `2025:KER:29200` the year 2018 is not sustainable. From Ext.A13, it can be seen that the deceased was having an annual income of Rs.2,69,821/- from his business and Rs.4,53,670/- as agricultural income. Therefore, it can be seen that the total annual income of the deceased during the assessment year 2015-16 was Rs.7,21,170/-. The computation of tax on total income in Ext.A13 further shows that the tax payable is 'Nil'. 9. A perusal of Exts.A37 and A38 bank account statements of the deceased also corroborates his income as per Ext.A13 and in that circumstance, I find that the Tribunal is not justified in fixing a notional income of Rs.12,000/- by rejecting Ext.A13 income tax return acknowledgment for assessment year 2015-16 and therefore, I find that the annual income of the deceased for the purpose of calculating the MACA No.2021 of 2019 7 **==> picture [58 x 57] intentionally omitted <==** `2025:KER:29200` loss of can be as dependency accepted Rs.7,21,170/-. The Tribunal made an addition of 10% of the established income towards future prospects as per the decision of the Hon'ble Supreme Court in _**National Insurance Co.Ltd. v Pranay Sethi [(2017) 16 SCC 680]**_ and accepted 11 as the multiplier applicable and deducted 1/4[th] of the income towards the personal and living of the deceased the expenses by following decision of the Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation and another** _**[(2009) 6 SCC 121 = 2010 (2) KLT 802 (SC)]**_ . Thus, while reassessing the loss of dependency as per the revised criteria, the amount would come to Rs.65,44,618/- ((Rs.7,21,170 + 10%) x 11 x ¾). The Tribunal has already granted Rs.13,06,800/in this head and therefore, an additional compensation of Rs.52,37,818/- is granted to the MACA No.2021 of 2019 8 **==> picture [58 x 57] intentionally omitted <==** `2025:KER:29200` appellants towards loss of dependency. 10. The learned counsel for the appellants argued that the Tribunal granted only Rs.20,256.84/- as per Ext.A44 series medical bills and the said amount is only the balance amount after deducting the advance amount from the bill amount and the appellants are entitled for the total bill amount as per Ext.A44 series. But the learned counsel for the insurance company pointed out that a perusal of Ext.A44 series would show that the said bills are duplicate bills and therefore in the absence of the original bills the appellants are not entitled for amount as the bills any per duplicate produced as Ext.A44. 11. Learned counsel for the insurance company further pointed out that the duplicate bill No.8558 dated 11-07-2016 is produced as Item MACA No.2021 of 2019 9 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:29200 ``` No.114 in Ext.A32 series bills and the Tribunal has already allowed Rs.7,14,920/- by accepting Ext.A32 series bills. Therefore, in the absence of proper explanation for producing Ext.A44 series duplicate bills, I find that no additional compensation can be granted to the appellants towards medical expenses. 12. Learned counsel for the appellants pointed out that the Tribunal has not considered Ext.A29 series ambulance bills for Rs.43,600/and the Tribunal awarded only Rs.25,000/- towards transportation expenses by considering the distance travelled in connection with the treatment. Since the genuineness of Ext.A29 series bills are not under challenge, I find that the same can be accepted and therefore, an additional compensation of Rs.18,600/- is granted to the appellants towards transportation MACA No.2021 of 2019 10 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:29200 ``` expenses. 13. The Tribunal granted bystander's expense for 560 days at the rate of Rs.250/- per day. Considering the facts and circumstances, I find that the can be bystander's expense calculated at the rate of Rs.400/- per day, and therefore an additional compensation of Rs.84,000/- is granted to the appellants towards bystander expenses. I find that the compensation granted by the Tribunal under all other heads are reasonable and requires no interference. Accordingly, the appellants are entitled to the enhanced compensation as given below: |Particulars|Compensation<br>awarded by the<br>Tribunal (Rs.)|Additional<br>amount<br>granted by<br>this Court<br>(Rs.)| |---|---|---| |Loss of<br>dependency|1306800|5237818| |Transportation<br>expenses|25000|18600| MACA No.2021 of 2019 11 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:29200 ``` Bystander's 140000 84000 expenses Total enhanced compensation 53,40,418/- Thus, a total amount of Rs.53,40,418/(Fifty Three Lakhs Forty Thousand and Four Hundred and is awarded as Eighteen only) enhanced compensation. The said amount shall carry interest at the rate of 9% per annum from the date of the application till realization (excluding the period of delay of 48 days in filing in appeal). The appellants would also be entitled to proportionate costs in the case. The claimants shall furnish the details of the bank account to the insurance company for transfer of the amount. The appeal is allowed as above ## **Sd/- JOHNSON JOHN, JUDGE.** amk