Soumya and Others v. Oriental Insurance Company Ltd. and M.N. Krishnan

## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943_ ## _MACA.No.2199 OF 2017(D)_ _AGAINST THE AWARD IN OPMV 2108/2012 DATED 08-11-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM_ ## _APPELLANT/S:_ |_1_|_SOUMYA,_| |---|---| ||_W/O.LATE ANILKUMAR, AGED 33 YEARS,_| ||_THEKKINKATTIL HOUSE, EDAMON P.O., PUNALUR,_| ||_KOLLAM DISTRICT._| |_2_|_VIAGA,_| ||_D/O.LATE ANILKUMAR, AGED 8 YEARS,_| ||_THEKKINKATTIL HOUSE, EDAMON P.O., PUNALUR,_| ||_KOLLAM DISTRICT REPRESENTED BY MOTHER SOUMYA_| ||_WHO IS THE 1ST APPELLANT HEREIN)_| |_3_|_VEDIKA,_| ||_D/O.LATE. ANILKUMAR, AGED 5 YEARS,_| ||_THEKKINKATTIL HOUSE, EDAMON P.O., PUNALUR,_| ||_KOLLAM DISTRICT REPRESENTED BY MOTHER_| ||_SOUMYA WHO IS THE 1ST APPELLANT HEREIN_| |_4_|_RAJAMMA,_| ||_W/O.THANKAPPAN, AGED 74 YEARS, THEKKINKATTIL HOUSE,_| ||_EDAMON P.O., PUNALUR, KOLLAM DISTRICT_| |_5_|_ANITHA,_| ||_D/O.THANKAPPAN, AGED 45 YEARS,_| ||_THEKKINKATTIL HOUSE, EDAMON P.O., PUNALUR,_| ||_KOLLAM DISTRICT._| ||_BY ADVS._| ||_SRI.PRATHEESH.P_| ||_SMT.RENY ANTO_| ## _RESPONDENT/S:_ _1 ORIENTAL INSURANCE COMPANY LTD., RAJESWARY COMPLEX, PERUNNA, CHANGANASSERY, KOTTAYAM DISTRICT PIN-686 101._ _2 M.N. KRISHNAN,_ _SREE VIGNESWARA TRADERS, 45, SOUNDIRA PANDIYA VINAYAGAR KOVIL STREET, SANKARAKOIL, TAMILNADU. (ADDL. 2ND RESPONDENT IS IMPLEADED AS PER ORDER DATED 23/10/2017 IN IA 3833/17 IN MACA 2199/17)_ _R1 BY ADV.SRI.VPK.PANICKER_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.No.2199/2017_ _3_ ## **JUDGMENT** Dated this the 23[rd] day of March, 2021 This is an appeal submitted by the petitioners in O.P. (MV).No.2108 of 2012 on the files of Motor Accidents Claims Tribunal, Kollam. The aforesaid claim petition was filed by the appellants seeking compensation for the death of one Anilkumar, due to the injuries sustained in a motor accident occurred on 28.11.2012. It was contended by them that the deceased was a contractor with an annual income of Rs.4,43,048/-. He was aged 38 years at the time of accident. The total amount of compensation claimed was Rs.78,00,000/-. 2. The Insurance Company filed a written statement admitting that the vehicle was covered with a policy at the time of accident. However, it was contended that the 2[nd] respondent in the claim petition, who was the driver of the vehicle at the relevant time was not having a valid driving _M.A.C.A.No.2199/2017_ _4_ license. The question of negligence and quantum of compensation were also disputed by them. 3. The evidence in this case consists of oral evidence of PWs 1 to 4 and documentary evidence of Exts.A1 to A20. Exts.X1 and X2 were marked as third party exhibits. 4. After the trial, the Tribunal passed an award allowing a total compensation of Rs.21,19,000/- and the Insurance Company was directed to deposit the said amount along with interest at the rate of 9% per annum. Since it was found that the 2[nd] respondent was not having valid driving license at the time of accident, the Insurance Company was granted the right to recover the said amount from the 1[st] and 2[nd] respondents in the claim petition, after satisfying the award. Being aggrieved by the quantum of compensation, this appeal is filed by the appellants. 5. Heard the learned counsel for the appellants and the learned counsel for the 1[st] respondent Insurance Company. 6. It was contended by the learned counsel for the appellants that the amount awarded by the Tribunal is on _M.A.C.A.No.2199/2017_ _5_ lower side. According to him, the amount awarded under the head of loss of dependency was considered by the Tribunal, by taking the monthly income of the deceased as Rs.8,000/only. According to him, the deceased was a contractor with an annual income of more than Rupees four lakhs and therefore, the monthly income taken by the Tribunal requires to be re-considered. In support of the said contention, the learned counsel relied upon Exts.A11 to A14, which are the Income Tax return verification forms of the deceased pertaining to the assessment years 2010-11 to 2013-14. On going through the aforesaid documents, it can be seen that the gross total income are as follows: |Assessmentyears|Gross total income| |---|---| |2010-11|Rs.2,88,149/-| |2011-12|Rs.3,28,964/-| |2012-13|Rs.4,43,048/-| |2013-14|Rs.3,45,500/-| 7. Since the Income Tax return is a valid document which can be taken into consideration for the purpose of fixing the income of a person, the Tribunal committed a _M.A.C.A.No.2199/2017_ _6_ mistake in ignoring the same completely. Even though the learned counsel for the appellants relied upon several other documents such as Ext.A7 registration certificate, Ext.A8 certificate from ESI Corporation and Ext.A9 certificate from Employees Provident Fund Organization, this Court is of the view that none of the said documents would substantiate the actual income of the deceased. However, income tax returns produced as Exts.A11 to A14 are documents which cannot be brushed aside. The income of the deceased is discernible from the said documents and those documents are the crucial evidence to prove the income. In the facts and circumstances of the case, the income of the deceased can be fixed for the purpose of computing the compensation, by taking the average income shown in the income tax returns for the assessment years 2011-12, 2012-13 and 2013-14. Upon calculation, the average annual income of the last three years is Rs.3,72,504/-. The rate of Income Tax in the year 2013-14, for an income exceeding Rs.1,80,000/- and up to Rs.5,00,000/-, is 10%. Thus, while taking the income as Rs.3,72,504/-, the taxable income can be taken as _M.A.C.A.No.2199/2017_ _7_ Rs.1,92,504/- and 10% thereof has to be deducted towards Income Tax. Thus the monthly income after deduction of Tax can be fixed as Rs.3,53,254/- per annum. As per the settled principles of law in this regard, 40% of the income of the deceased has to be added towards future prospects. Thus the annual income of the deceased with addition of 40% is Rs.4,94,556/-. It is seen that, the appellants 1 to 4 were the actual dependents of the deceased, being wife, children and mother. As far as the 5[th] appellant is concerned, she is the sister of the deceased and she cannot be treated as a dependent in the absence of any specific evidence in this regard. In the above circumstances, deduction to be made towards personal expenses is ¼. Thus the amount of compensation payable under the head of loss of dependency shall be Rs.55,63,755/- [4,94,556 x 15 x ¾]. The Tribunal has awarded an amount of Rs 11,52,000/- under this head and after deducting the said amount, the appellants shall be entitled for a further sum of Rs 44,11,755/- under the head of loss of dependency. _M.A.C.A.No.2199/2017_ _8_ 8. It is seen that an amount of Rs.1,00,000/- has been granted towards loss of consortium and a further sum of Rs.2,50,000/- granted under the head of loss of love and affection. Going by the principles laid down by the Hon’ble Supreme Court in various judgments, the total amount of compensation to be granted under the head loss of consortium is Rs.40,000/- each, to the wife, children and the parents. In this case, the appellants 1 to 4 are therefore, entitled for loss of consortium at the rate of Rs.40,000/- and thus they are entitled for a total amount of Rs.1,60,000/under this head (including loss of parental consortium to Appellants 2 and 3, and loss of filial consortium to the Appellant No 4). As the 5[th] appellant is the sister of the deceased, she is not entitled for any amount under the said head. It is also a settled position of law as per the judgment in **United India Insurance Co.Ltd. v. Satinderkaur @ Satwinderkaur and Others [2020(3)KHC 760]** that, when compensation is granted under the head of loss of consortium, no further amount needs to be granted under the head of loss of love and affection. This is in view of the _M.A.C.A.No.2199/2017_ _9_ fact that, the compensation for loss of consortium takes in the compensation of loss of love and affection as well. Thus the amount awarded by the Tribunal under the heads of loss of love and affection as well as compensation for loss of consortium are taken together, and the compensation is refixed as Rs.1,60,000/-, thereby resulting in a reduction of Rs.1,90,000/- [(2,50,000 + 1,00,000)-1,60,000] from the total compensation awarded. Similarly, the amount awarded under the head of funeral expenses is Rs.25,000/-, which is in excess by Rs.10,000/- and this is ordered to be deducted. No amount is awarded under the head of loss of estate. An amount of Rs.15,000/- is to be granted under the said head and hence it is allowed. It is seen that an amount of Rs.5,76,000/- is granted by the Tribunal under the head of compensation for loss of future prospects. Since this Court has already awarded revised compensation under the head of loss of dependency by taking into account future prospects as well, the award of Rs.5,76,000/- is not warranted and the same is to be deducted from the total compensation. Thus the total amount of compensation receivable by the _M.A.C.A.No.2199/2017_ _10_ appellants in addition to the amount already awarded by the Tribunal is fixed as Rs 36,50,755 [(44,11,755 + 15,000) – (190,000 + 10,000 + 5,76,000) ] and the said amount shall be deposited by the 3[rd] respondent Insurance Company along with interest and proportionate cost as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. As the finding of the Tribunal regarding the right of recovery granted to the 1[st] respondent insurance company is not interfered with, the insurance company shall be entitled to realize the additional amounts granted in this case, from the 2[nd] respondent herein, after depositing the same before the Tribunal, by way of execution of the award, as modified in this appeal. _Sd/-_ **ZIYAD RAHMAN A.A.** **JUDGE** DG