Shailaja and others v. Aaron S/o. Raphel; Natarajan P.; The United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** **MACA NO. 3386 OF 2017** **AGAINST THE AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA DATED 22.08.2016 IN O.P.(MV) NO.1029/2014.** **APPELLANTS/CLAIMANTS:** |**1**|**SHAILAJA,**| |---|---| ||**W/O. LATE MUHAMMED BASHEER,**| ||**POOVATHINAL HOUSE,**| ||**PERUVANTHANAM P.O., IDUKKI DISTRICT.**| |**2**|**SHAFEENA,**| ||**D/O. LATE MUHAMMED BASHEER,**| ||**POOVATHINAL HOUSE,**| ||**PERUVANTHANAM P.O., IDUKKI DISTRICT.**| |**3**|**SHAHINA,**| ||**D/O. LATE MUHAMMED BASHEER,**| ||**POOVATHINAL HOUSE,**| ||**PERUVANTHANAM P.O., IDUKKI DISTRICT.**| |**4**|**SHAMEENAMOL P.M.,**| ||**D/O. LATE MUHAMMED BASHEER,**| ||**POOVATHINAL HOUSE,**| ||**PERUVANTHANAM P.O., IDUKKI DISTRICT.**| |**5**|**HAJARA BEEVI,**| ||**W/O.SHAHUL HAMEED,**| ||**POOVATHINAL HOUSE,**| ||**PERUVANTHANAM P.O., IDUKKI DISTRICT.**| ||**BY ADVS.**| ||**SRI.CYRIAC KURIAN**| ||**SRI.JOJO JOSEPH**| ||**SRI.SUJITH MATHEW JOSE**| ## **RESPONDENTS/RESPONDENTS:** **1 AARON, S/O. RAPHEL, ARUNACHALAPURAM, ARRYANKEPURAM, SOUTH THERU,ARUNACHALAPURAM, SANKARANKOVIL TALUK, THIRUNEVELI(DT.), TAMILNADU.** MACA 3386/2017 2 **2 NATARAJAN P., S/O. PALANISWAMY, NO.54, SASTRINAGAR EXT., KOLATHUR, CHENNAI-600 099, TAMILNADU.** **3 THE UNITED INDIA INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, DAIVASAHAYAM BUILDINGS, MAIN ROAD, PONKUNNAM, KOTTAYAM DISTRICT-686 506.** **BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 3386/2017 3 C.JAYACHANDRAN, J. -----------------------------------MACA No.3386 of 2017 ------------------------------------Dated this the 18[th] day of July, 2022 ## J U D G M E N T 1. The legal heirs of one Mohammed Basheer, who succumbed to an accident on 10.12.2013 are the appellants herein. They were the claimants in OP(MV) No.1029/2014 of the Motor Accidents Claims Tribunal, Pala. In the same accident, another person also died, who preferred a separate Original Petition, which was also considered along with the instant Original Petition, resulting in a common award. This appeal is directed essentially on the question of enhancement of compensation granted under various heads. 2 . Learned counsel for the appellants submitted that the deceased, Muhammed Basheer, was the owner of a grocery shop and the appellants claimed monthly income of Rs.30,000/-, as against which Rs.12,000/- alone was reckoned by the Tribunal. Learned counsel pointed out that the appellants/claimants produced evidence to show MACA 3386/2017 4 that the deceased had licence to conduct grocery shop, apart from a rent agreement in respect of a shop to conduct the business. This contention was opposed seriously by the learned counsel for the insurance company by pointing out that no proof of income, as such, is produced by the appellants/claimants. In such cases, even though the judgment of the Honourable Supreme Court in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] would indicate a notional income @ Rs.9,000/-, the Tribunal had reckoned Rs.12,000/-, which is more than sufficient, warranting no further enhancement, submits the learned counsel for the respondent. 3. Having heard the learned counsel appearing on both sides, this Court is of the view that monthly income of the deceased has to be enhanced minimally. The instant case cannot be equated with the index available in Ramachandrappa (supra), since the appellants had produced the licence to conduct the grocery shop, which was in the name of the deceased. They also produced a rent agreement evidencing occupation of a shop room for the purpose of business in grocery. The accident was of the year 2013. Even going by Ramachandrappa (Supra) , MACA 3386/2017 5 the notional income to be reckoned is Rs.9,000/-, wherefore, in a case where there exists evidence to show that the deceased was conducting business in grocery, the notional income of Rs.12,000/- appears to be on the lower side. On the other hand, as contended for by the learned counsel for the insurance company, in the absence of any proof of income, the amount claimed by the appellants/claimants also cannot be reckoned. In such circumstances, this Court is of the opinion that the monthly income can be fixed at Rs.15,000/-, which would be fair and reasonable, having regard to the attendant facts and circumstances. 4. The second point is with respect to loss of consortium, which was granted only at Rs.1,00,000/-, whereas going by the judgment in National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] , all the legal heirs are entitled to consortium @ Rs.40,000/each. As against this contention, learned counsel for the insurance company pointed out that a sum of Rs.1,00,000/- has been given as consortium and a sum of Rs.1,00,000/- was given towards love and affection. So that, even if the contention of the learned counsel for the appellants is accepted, that may not make any MACA 3386/2017 6 difference in the total amount to be paid towards compensation under the head consortium. Even if the submission made by the learned counsel for the insurance company is correct, for the sake of correctness and legality, this Court will do away with the compensation under the head love and affection and enhance the compensation under the head consortium to Rs.2,00,000/- in respect of five claimants reckoned @ Rs.40,000/- each. As against loss of estate, what is seen given is Rs.5,000/-, where the appellants are entitled to Rs.15,000/-, going by the judgment in Pranay Sethi (Supra). 5. As pointed out by the learned counsel for the appellant, loss on account of clothing is liable to be enhanced to Rs.1,000/-, as against Rs.500/- taken by the Tribunal. It is so done. 6. Learned counsel for the insurance company pointed out that under the head funeral expenses, Rs.25,000/was granted by the Tribunal, whereas going by the decision in Pranay Sethi (supra), funeral expenses is to be limited to Rs.15,000/-. This contention is also accepted. MACA 3386/2017 7 7. Learned counsel for the insurance company also pointed out that, the number of dependents being in the range of 4-6, 1/4[th] alone can be deducted from the income, as against 1/5[th] deducted by the Tribunal, which course is not legal. This contention is liable to be accepted and the deduction should be confined to 1/4[th] going by the judgment in Sarala Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] . 8. Another aspect pointed out by the learned counsel for the insurance company is with respect to reckoning of future prospects @ 30%, which again is impermissible for a person not having any fixed income. Future prospects has only to be reckoned @ 25%, going by the judgment in Pranay Sethi (Supra). This contention is also accepted. 9. In the result, the MACA is allowed and the compensation amount payable to the appellants is reworked as shown in the schedule herein below: MACA 3386/2017 8 |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(Rs.)|Total amount<br>after<br>enhancement<br>in appeal<br>(Rs.)| |---|---|---|---| |1|Transportation expenses|1500|1500| |2|Damage to clothing|500|1000| |3|Pain and suffering|5000|5000| |4|Loss of love and affection|100000|Nil| |5|Loss of estate|5000|15000| |6|Funeral expenses|25000|15000| |7|Loss of dependancy|1946880|2193750| |8|Loss of consortium|100000|200000| ||Total|2183880|2431250| ||Amount enhanced =Rs.2,47,370/-(2431250-2183880)<br>||| *[15000+25% (future prospects)-1/4 (personal expenses)x13x12] 10 . The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. Since there was a delay of 327 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 6.11.2017 in C.M.Appl.No.3863/2017. The claimant/s shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this MACA 3386/2017 9 judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. 11 . The appeal is allowed as indicated above. Sd/C.JAYACHANDRAN JUDGE jg