Sreedharan and others v. National Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, ``` ## **`1944`** ## **`MACA NO. 388 OF 2020`** ## **`AGAINST THE JUDGMENT IN OP(MV)482/2017 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL VADAKARA`** ## **`APPELLANTS/PETITIONERS:`** - `1 SREEDHARAN AGED 66 YEARS S/O KUNHIRAMAN, KUNHIRAYAROTH HOUSE, THIRUVALLUR P.O.CHANIYANKADAVU, KOZHIKODE-673 541.` - `2 AJITHA, AGED 54 YEARS W/O SREEDHARAN, KUNHIRAYAROTH HOUSE THIRUVALLUR P.O.CHANIYANKADAVU, KOZHIKODE-673 541.` - `3 JIJITH, AGED 25 YEARS S/O SREEDHARAN, KUNHIRAYAROTH HOUSE THIRUVALLUR P.O.CHANIYANKADAVU, KOZHIKODE-673 541.` - `4 JISHNU K.R, AGED 22 YEARS S/O SREEDHARAN, KUNHIRAYAROTH HOUSE THIRUVALLUR P.O.CHANIYANKADAVU, KOZHIKODE-673 541.` - `BY ADV ANIL KUMAR K.P.` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SAJINA W/O ANIL KUMAR, MALHAR HOUSE, PATHIYARAKKARA P.O.PUTHUPPANAM, KOZHIKODE-673 105.` - `2 MANJUSHA, AGED 34 YEARS` - `S/O RADHA, W/O BINODAN V.P, PADINJARAYIL HOUSE, PAYYOLI P.O.KIZHOOR, KOZHIKODE-673 522.` **MACA 388/20** ..2.. ``` 3NATIONAL INSURANCE CO LTD, REPRESENTED BY THE MANAGER/AUTHORISED SIGNATORY, VATAKARA BUSINESS CENTRE, 2ND FLOOR, MPK BUILDING, OPP TOWN HALL, NUT STREET, VATAKARA KOZHIKODE-673 104. ``` ``` BY ADV SRI.P.G.JAYASHANKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 388/20** ..3.. ## **JUDGMENT** The sole issue in this appeal, filed by the claimants, impugning the Award of the Motor Accidents Claims Tribunal, Vatakara (‘Tribunal’ for short) in OP(MV)No.482/2017, is as to the notional income that said Tribunal ought to have adopted in the case of their deceased son – who unfortunately died in a road accident on 17.01.2017, while being knocked down by the offending vehicle driven in a rash and negligent manner. 2. Sri.K.P.Anil Kumar - learned counsel for the appellants, asserted that the learned Tribunal ought to have adopted the notional income of his clients’ deceased son to be Rs.20,000/-, which sum has been established through Ext.A5 – Employment Certificate; and that it has erred in reducing the same to Rs.12,000/-, without any cogent reason. He thus prayed that the compensation awarded to them under the head ‘Loss of Dependency’ be revised and enhanced as prayed for. 3. Sri.K.P.Anil Kumar then added that the learned Tribunal has also erred in not granting any amount under the **MACA 388/20** ..4.. head ‘Loss of Consortium’ and that his clients are entitled to Rs.40,000/- per head, going by _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. 3. The afore submissions of Sri.K.P.Anil Kumar, were, however, refuted by Sri.P.G.Jayashankar – learned Standing Counsel for the Insurance Company, saying that Ext.A5 is an uncorroborated Employment Certificate issued by a company outside India. He argued that, in the absence of any evidence being lead to prove the veracity of Ext.A5, including by examining witnesses in its support, the learned Tribunal could have only done, as it has done, to reject it. He thus prayed that this appeal be dismissed. 4. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 5. No doubt, Ext.A5 is not a document that would attract any probative value particularly because it has been issued by a company outside India and not spoken about by ## **MACA 388/20** ..5.. any witness. However, as rightly found by the learned Tribunal, the admitted documents – which were marked without any objection – namely Exts.A6 and A7, establish that the deceased was a Management Professional, who had completed Management and Banking Allied Training (SAMBAT), Practical Accounting (Manual) and Computerised Accounting, along with having acquired expertise in Microsoft Excel, Computerised Accounting Tally, Business Logistic Material Management, Warehousing & Inventory, Export Procedures, Commercial Shipping, Multi Model Transportation. Further, Ext.A6 would indicate that the deceased had passed the Kerala Government Technical Examination in Automobile Engineering; and the appellants assert on such basis, that he was engaged by “Sunrise Travels” in Doha, Qatar, with a monthly salary of Rs.20,000/-. As I have said above, though the income cannot be adopted as stated in Ext.A5, the qualifications of the deceased remains unimpeached, since Exts.A6 and A7 were not objected to by the Insurance Company. 6. That said, the Hon’ble Supreme Court, in _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ ## **MACA 388/20** ..6.. _**Insurance Company Ltd.**_ [(2011) 13 SCC 236], has postulated that, even in the case of a person with unascertainable income or even a ‘Coolie’ in the year 2017 – when the accident occurred - the minimum notional income to be adopted is Rs.11,000/-. When a “Coolie” is eligible to such a figure, then certainly, the learned Tribunal ought to have been more generous in considering the case of the deceased, who was highly qualified and who, _prima facie,_ was working abroad. I am, therefore, of the firm view that a figure of Rs.15,000/- would be apposite and I propose to adopt it. 7. No doubt, admittedly, 40% future prospects have to be added to the notional income of the deceased; and in such manner same would have to be reckoned as Rs.21,000/- per month. 8. As regards the compensation under the head ‘Loss of Consortium’, I find in favour of the appellants, since they are entitled to Rs.40,000/- each under that head, though the amount granted under the Head ‘Loss of Love and Affection’ would have to be deleted. In the afore circumstances, this appeal is partly allowed **MACA 388/20** ..7.. in the following manner: a. The compensation under the head ‘Loss of Dependency’ is revised to Rs.21,42,000/- from Rs.17,13,600/awarded by the Tribunal, reckoning the notional income of the deceased to be Rs.21,000/- per month and deducting one half towards his personal expenses, since he was a bachelor at the time of the accident. b. The compensation under the head ‘Loss of Love and Affection’ is deleted. c. An amont of Rs.80,000/- is awarded to the appellants under the head ‘Loss of Consoritum’. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court from the Insurance Company, along with interest at the rate of 8% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. However, while calculating the interest, the period of 221 **MACA 388/20** **==> picture [20 x 9] intentionally omitted <==** days – being the delay caused by the appellants in filing this appeal – shall stand excluded. 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. Sd/- ## **DEVAN RAMACHANDRAN, JUDGE** ACR