Shabana and Others v. Jude S/o Yohanan Mathai and M/S New India Assurance Co. Ltd.

``` MACA NO. 950 OF 2012 1 ``` # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ``` MACA NO. 950 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV NO.2427/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANTS/PETITIONERS:` ``` 1SHABANA W/O. SYED NAZEERUDEEN, RESIDING AT KURUPAM HOUSE, PALLURUTHI, NAMBIAPURAM KARA,RAMESWARAM VILLAGE, KANAYANNUR TALUK. 2SHAMARUDEEN, S/O. SYED NAZEERUDEEN REPRESENTED BY BY MOTHER AND NATURAL GUARDIAN SHABANA, W/O.SYED NAZEERUDEEN, RESIDING AT KURUPAM HOUSE, PALLURUTHI, NAMBIAPURAM KARA,RAMESWARAM VILLAGE, KANAYANNUR TALUK. 3SHAMEENABHANU, D/O. SYED NAZEERUDEEN (MINOR) REPRESENTED BY BY MOTHER AND LEGAL GUARDIAN SHABANA, W/O.SYED NAZEERUDEEN, RESIDING AT KURUPAM HOUSE, PALLURUTHI, NAMBIAPURAM KARA, RAMESWARAM VILLAGE, KANAYANNUR TALUK. 4SAKEENABIBI W/O. HASANUDHEEN, RESIDING AT KURUPAM HOUSE, PALLURUTHI, NAMBIAPURAM KARA, RAMESWARAM VILLAGE, KANAYANNUR TALUK. BY ADVS. SRI.SHIRAZ ABDULLA SRI.M.S.IMTHIYAZ AHAMMED SRI.JOJO PAPPACHAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1JUDE S/O. YOHANAN MATHAI, KOTHAVILAYIL HOUSE, NEAR PARAMPITHARA ROAD, PANAMPILLY NAGAR, ERNAKULAM. ``` ``` MACA NO. 950 OF 2012 2 2M/S. NEW INDIA ASSURANCE CO. LTD. KOTTAKAL ARYA VAIDYA SALA BUILDING, M.G. ROAD, COCHIN -16. BY ADVS. R2 BY DINESH MATHEW J. MURIKAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 950 OF 2012 3 ``` ## `JUDGMENT` The appellants are the petitioners in O.P (MV) No. 2427/2007 on the files of Motor Accident Claims Tribunal, Eranakulam. 2. The said claim petition was submitted by them seeking compensation for the death of one Syed Nazeerudeen due to the injuries sustained in a Motor Accident that occurred on 03.09.2007. The 1[st] appellant is the wife, 2[nd] and 3[rd] appellants are the children and the 4[th] appellant is the mother of the deceased. The deceased was aged 43 years, at the time of the accident and was working as telephone mechanic in BSNL at the relevant time with a monthly income of Rs.14,198/-. According to the appellants, the accident occurred due to the negligence on the part of the 1[st] respondent, the rider of the Motor Cycle involved in the accident and the said vehicle was insured with the 2[nd] respondent. The claim petition was submitted in the said circumstances seeking a total compensation of Rs.25,00,000/-. 3. The 1[st] respondent filed a written statement, denying the negligence on his part. The 2[nd] respondent filed a written statement admitting the existence of valid policy for the vehicle but they denied ``` MACA NO. 950 OF 2012 4 ``` the negligence on the part of the 1[st] respondent and contended that the accident occurred due to the negligence on the part of the deceased himself. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of oral testimony of PW1 and Exts. A1 to A14 were marked from the side of the appellants and X1 and X2 were marked as Court Exhibits. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent and being the insurer, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.18,59,500/- and the said amount was directed to be deposited by the 2[nd] respondent with interest @ 8% per annum from the date of petition till realization. This appeal is submitted by the appellants being dissatisfied with the quantum of compensation awarded. 5. Heard Sri.Shiraz Abdulla M.S., the learned counsel appearing for the appellants and Sri. Dinesh Mathew Murikan, the leaned counsel appearing for the 2[nd] respondent. 6. The learned counsel for the appellants points out that the amounts awarded under various heads by the Tribunal, particularly ``` MACA NO. 950 OF 2012 5 ``` under the head of loss of dependency, were grossly inadequate. On the other hand, the learned counsel for the 2[nd] respondent opposes the said contentions, pointing out that a reasonable award has been passed by the Tribunal and no interference is required. 7. After carefully going through the records, I find some force in the contentions put forward by the learned counsel for the appellants. As regards the monthly income taken by the Tribunal, even though the learned counsel for the appellants contended by placing reliance upon Ext.A12 that the amount fixed by the Tribunal was grossly inadequate, I am not prepared to accept the said contention. As far as Ext.A12 salary payslip is concerned, the same was issued to another employee, and the said salary slip was pertaining to the month of October 2011, whereas the death in this case occurred on 03.09.2007. It was contended by the learned counsel for the 2[nd] respondent- Insurance Company that, the said payslip cannot be accepted as it contains subsequent pay revisions. According to him, what is relevant is the salary which the deceased was drawing as on the date of the accident. The said contention is fortified by the observations made by the Honorable Supreme Court in paragraphs 46 and 47 of **Sarla Verma & Ors. v. Delhi Transport Corporation** ``` MACA NO. 950 OF 2012 6 ``` [(2009) 6 SCC 121]. In the said decision, the relevance of subsequent pay revisions while computing the addition to be made towards future prospects were specifically taken into consideration, and ultimately it was held that the said pay revisions cannot be made applicable. In such circumstances, the salary shown in Ext. A12 cannot be accepted. 8. In the award, the monthly income was fixed as Rs.13,593/on the basis of Ext.A10, which was the salary certificate of the deceased for the month of August 2007. In the award, the split-up details of the gross salary of the deceased were also extracted, and on perusal of the same, I find that the monthly income of Rs.13,593/taken by the Tribunal is a reasonable one. Hence no interference is required as far as the said figure is concerned. However, it is seen that the Tribunal after making an addition of 30% towards future prospects, deducted an amount of Rs.2,670/- towards tax as a rough measure. It is evident that, as per the rate of income tax prevailing at the relevant time, the tax payable for the income above Rs.1,00,000/- to Rs.1,50,000/- was 10% of the amount exceeding Rs.1,00,000/-. The rate of tax for the income above Rs.1,50,000/- up to Rs.2,50,000/- was 20% of the amount exceeding Rs.1,50,000/-. Therefore, I am of the view that, the tax can be calculated on the basis of the actual rate ``` MACA NO. 950 OF 2012 7 ``` prevailing at the relevant time instead of making a rough calculation. As mentioned above the salary is fixed as Rs.13,593/- and thus the annual income would come to Rs.1,63,116/-. When the rate of tax as mentioned above is calculated, the amount to be deducted towards the tax would come to Rs.7,623/- (5,000+2,623). After deducting the said amount, the actual annual income would come to Rs.1,55,493/-. An addition of 30% has to be made as the deceased was 43 years old at the time of the accident. Thus, the annual income with future prospects would come to Rs.2,02,141/-. 9. The learned counsel for the appellants further pointed out that, the Tribunal deducted 1/3 of the compensation towards personal expenses even though the appellant left behind four dependents and therefore, in the light of **National Insurance Co.Ltd. v. Swaran Singh and Others [2004 (3) SCC 297]** , the proper deduction should have been ¼. It is seen from the records that the Tribunal opted to deduct 1/3 instead of ¼ on the reason that, in the claim petition the age of the mother was mentioned as 51 years while the age of the deceased son was shown as 43. However, in the award itself it is mentioned that in Ext.A8 legal heirship certificate, the age of the mother, the 4 th appellant, was shown as 67 years. In such circumstances, I am of the ``` MACA NO. 950 OF 2012 8 ``` view that, the decision of the Tribunal adopting 1/3 of deduction on that reason was not proper. In the legal heirship certificate, the age of the 4th appellant was shown as 67 years and since the same was issued by a competent authority, the age mentioned therein can be accepted. Moreover, it also shows that, the deceased left behind four dependents. Hence I deem it appropriate to fix the deduction as ¼ instead of 1/3 as adopted by the Tribunal. While reassessing the compensation with the above revised criteria, the compensation for loss of dependency would come to R.21,22,481/- (2,02141 x 14 x ¾). The amount already awarded by the Tribunal under this head is Rs.18,00,000/- and thus the additional compensation would come to Rs.3,22,481/-. 10. In the award, the Tribunal granted only Rs.7,500/- towards funeral expenses, whereas the actual amount ought to have been granted was Rs.15,000/- in the light of **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. Therefore a further sum of Rs.7,500/- is awarded. Similarly, no amount is seen awarded s case towards loss of estate and in the light of **Pranay Sethi’** (supra) Rs.15,000/- is awarded. 11. The next head to be considered is loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others** ``` MACA NO. 950 OF 2012 9 ``` **[(2018) 18 SCC 130]** and **United India Insurance Company Ltd. v.** **Satinder Kaur @ Satwinder Kaur and Others [(2021) 11 SCC 780]** , the appellants being the wife, children and the mother of the deceased were entitled to compensation for loss of consortium at the rate of Rs.40,000/- each. However, the Tribunal has awarded a total amount of Rs. 45,000/- toward loss of consortium as well as loss of love and affection. In the light of **Satinder Kaur** (supra), when compensation is awarded for loss of consortium, no further amount needs to be granted for loss of love and affection. Therefore, the said amount can be adjusted towards the compensation fixed by this Court towards loss of consortium. Thus, the additional amount under this head would come to Rs.1,15,000/-. Accordingly, the additional compensation is determined as Rs.4,59,981/- (3,22,481+ 7500 + 15,000 + 1,15,000). In the light of the above observations and findings this appeal is allowed. The award dated 02.11.2011 passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(M.V) No.2427/2007 is hereby modified by granting an additional compensation of Rs.4,59,981/(Rupees Four Lakhs Fifty Nine Thousand Nine Hundred and Eighty One only) and the said amount shall be deposited by the 2 nd respondent with interest at the rate of 8% per annum from the date of petition till ``` MACA NO. 950 OF 2012 10 ``` realisation within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** `ZIYAD RAHMAN A.A. JUDGE` Asw/rpk