Stella Paul and Maria Paul v. Vijayan, Vishnu Vijayan and Cholamandalam MS General Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** **MACA.No. 3679 of 2017** ## **IN OPMV 1329/2011 of MACT ALAPPUZHA DATED 22-06-2017** ## **APPELLANT(S)/PETITIONERS:** **1 STELLA PAUL AGED 58 YEARS, W/O. LATE P.M. PAUL, (MOTHER OF DECEASED AUSTIN PAUL), KUNCHARATH HOUSE, ALAPPUZHA HEAD POST OFFICE, ALAPPUZHA - 1, CONVENT SQUARE, VAZHICHERRY WARD, CULLEN ROAD, ALAPPUZHA DISTRICT, KERALA STATE.** **2 MARIA PAUL, AGED 27 YEARS, D/O. LATE P.M.PAUL, KUNCHARATH HOUSE, ALAPPUZHA HEAD POST OFFICE, ALAPPUZHA - 1, CONVENT SQUARE, VAZHICHERRY WARD, CULLEN ROAD, ALAPPUZHA DISTRICT, KERALA STATE. (SISTER OF DECEASED AUSTIN PAUL)** **BY ADVS.SRI.A.T.ANILKUMAR** **SMT.V.SHYLAJA** ## **RESPONDENT(S)/RESPONDENTS:** ## **1. VIJAYAN** **S/O. KUNJIRAMAN, 479/PULICHIMAVUNGAL NO.2, KOMMADI, THUMPOLY P.O., ALAPPUZHA - 688 008.** ## **2. VISHNU VIJAYAN,** **S/O. VIJAYAN, 479/PULICHIMAVUNGAL NO.2, KOMMADI, THUMPOLY P.O., ALAPPUZHA - 688 008.** **3. CHOLAMANDALAM MS GENERAL INSURANCE COM.LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, 2ND FLOOR, ACEL ESTATE, IYYATHIL JUNCTION, CHITTOOR ROAD, KOCHI.** **R3 BY ADV. SRI.MATHEWS JACOB (SR.)** **R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **EB** ## **K. HARILAL, J.** ----------------------------------------------MACA No. 3679 of 2017 ----------------------------------------------Dated this the 21[st] day of March, 2018 ## **J U D G M E N T** Appellants are the legal representatives of the deceased Austin Paul. They filed OP (MV) No. 1329 of 2011 before the Motor Accident Claims Tribunal, Alappuzha under section 166 of the Motor Vehicles Act claiming compensation for the loss caused by the death of said Austin Paul in a motor traffic accident. 2. The appellants claimed an amount of Rs. 50,00,000/- as compensation and the 3[rd] respondent Insurance Company opposed the said application disputing the quantum of compensation claimed under various heads; but admitted the coverage of the insurance policy. After considering the evidence on record, the tribunal passed the impugned award granting Rs. 23,06,000/- as compensation to the appellants. MACA No. 3679 of 2017 -2- This appeal is filed challenging the inadequacy of the quantum of compensation determined under various heads of claim. 3. Heard the learned counsel for the appellants and the learned counsel for the 3[rd] respondent Insurance Company. 4. It is contented that the monthly income of the deceased determined by the tribunal is very low in view of the overwhelming evidence available on record. According to the learned counsel for the appellant, the deceased Austin Paul had three sources of income. He was a partner of the medical shop, along with his mother, and he was getting 50% of the total profit. Besides, he was a B.Pharm degree holder, working as Pharmacist of the said medical shop and he was getting Rs. 5,000/-, in addition to the share of profit, under Ext. A20 partnership deed. That apart, he was getting a monthly salary of Rs. 10,000/- as Marketing Executive of a medical distribution company by name Emergicare MACA No. 3679 of 2017 -3- Trauma and Life Support Services Pvt. Ltd. All the said sources of income are proved beyond doubt by producing documentary evidence. But the tribunal has taken Rs. 15,000/- only as his monthly salary. The tribunal ought to have taken at least Rs. 25,000/- as monthly income of the deceased. 5. Per contra, the learned counsel for the 3[rd] respondent Insurance Company submits that the monthly income determined by the tribunal is in tune with Ext. A36 income tax return submitted by the deceased and no amount other than the income shown in Ext. A36 can be taken as monthly income of the deceased. It is also submitted that the amount determined under the heads funeral expenses, loss of estate etc. are exorbitant and requires to be interfered by this court in view of the decision of the Supreme Court in **National Insurance Company V. Pranay Sethi and others (2017 (5) KHC 350)** . MACA No. 3679 of 2017 -4- 6. In view of the arguments at the bar and rival contentions raised by the respective council appearing for both parties, the point to be considered in this appeal is whether the tribunal is justified in determining the quantum of compensation under the heads loss of dependency, funeral expenses and loss of consortium. More clearly, the point is whether the monthly income of the deceased determined by the tribunal is just and fair in view of the evidence available on record. 7. Going by the impugned award it is seen that Rs. 15,000/- is taken as monthly income of the deceased. It is not disputed that he was aged 26 years only at the time of accident and he was running a medical shop along with his mother under a partnership deed by name Curewell Medicals in Alappuzha town. That apart, he was a B.Pharm degree holder and working as Pharmacist of the said medical shop also. MACA No. 3679 of 2017 -5- 8. The tribunal has taken his monthly salary as Rs. 10,000/-, which he was getting as salary from Emergicare Trauma and Health Support Services Pvt. Ltd. and Rs. 5,000/- which he was getting as working partner of the partnership firm and no amount was taken from the profit share of the medical shop under a partnership deed. But the partnership deed shows that he was getting 50% of the share profit of the said medical shop. In order to prove the share of profit and the salary of Rs. 5,000/- from the medical shop as working partner, the appellants have produced Ext. A24 bank account statement, Ext. A20 partnership deed and Ext. A36 income tax return. 9. In order to prove the claim that he was getting Rs. 10,000/as salary from the medical distribution company by name Emergicare Trauma and Lfe Support Services Pvt. Ltd.,the appellants have produced Ext. A24 bank account statement, Ext. A37 salary certificate, Ext. A38 catalogue of MACA No. 3679 of 2017 -6- Emergicare Trauma and Health Support Services Pvt. Ltd. and Ext. A19 employment certificate. Ext. A19 employment certificate shows that he was getting Rs. 10,000/- being the Marketing Executive of the company by name Emergicare Trauma and Life Support Services Pvt. Ltd.. Therefore, the tribunal is justified in taking Rs. 10,000/- as his salary. Similarly, Ext. A20 partnership deed shows that he was getting Rs. 5,000/- per month in addition to the profit share as salary considering the fact that he was a B.Pharm degree holder and working as Pharmacist of the said medical shop. Therefore, the tribunal is justified in taking Rs. 5,000/- also as monthly income; but no amount has been taken as monthly income from the profit of the aforesaid medical shop. 10. Can the tribunal be justified in discarding 50% share of profit from the medical shop? Exts. A25 and A26 are profession tax bills remitted by the deceased Austin Paul in MACA No. 3679 of 2017 -7- Alappuzha Municipality. Ext. A27 is the labour registration certificate of Curewell Medicals renewed periodically by remitting prescribed fees by the deceased Austin Paul. Ext. A28 is the municipal license of the medical shop and Exts. A29 and A30 are muster rolls of Curewell Medicals during the period 2005-2015. Ext. A31 is the register of wages of Curewell Medicals since 2005. Ext. A34 is the VAT return acknowledgment of the Curewell Medicals for the period 2009-2012. 11. Ext. A27 labour registration certificate, Ext. A30 muster rolls and Ext. A31 register of wages would show that certain other persons are also employed in the shop as salesmen. The cumulative inference that can be drawn from the aforesaid document is that he was conducting a medical shop by name Curewell Medicals in a profitable manner, though no document was produced to show the exact amount which he was getting from the medical shop. The MACA No. 3679 of 2017 -8- tribunal totally discarded the income from the medical shop for the reason that Ext. A36 income tax return would show that he was having an annual income of Rs. 1,80,000/- only. Thus, after discarding all the aforesaid documents, which would prove the income from the medical shop, the tribunal presumed that he was getting a monthly salary of Rs. 10,000/- from Emergicare Trauma and Life Support Services Pvt. Ltd., and at least Rs. 5,000/- from his medical shop amounting to a total monthly income of Rs. 15,000/only. 12. It is true that he has shown Rs. 1,80,000/- as his annual income in the Ext. A36 income tax return, but this court finds that even though his income or share of profit from the medical shop is not reflected in Ext. A36, the overwhelming evidence on record produced by the appellants would show that he was running the said medical shop in a profitable manner and he was getting a reasonable amount from the MACA No. 3679 of 2017 -9- said medical shop as his share of profit. As per Ext. A20 partnership deed the deceased Austin Paul was entitled to get 50% of the profit. Merely on the reason that Ext. A36 income tax return shows an annual income of Rs. 1,80,000/-, it cannot be held that it is his actual monthly income, where the overwhelming evidence available on record would show that he was getting income more that what is shown in Ext. A36 income tax return. In the instant case, the evidence on record is overwhelming to prove that he was getting 50% of the profit from the medical shop also. Therefore, the tribunal is not justified in discarding the income from the medical shop which was being run by him at the time of his death. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company ((2011) 13 SCC 236)** , the Supreme Court held that in the case of an accident occurred in 2004, Rs.3,500/- to Rs.4,500/- can be taken as notional monthly income of a coolie worker. In the instant case, the accident had occurred in the year 2011. MACA No. 3679 of 2017 -10- Having regard to the long efflux of time after 2004, Rs.10,000/- can be taken as the monthly notional income of the deceased from the medical shop. Therefore, the monthly income of the petitioner would stand enhanced to Rs. 25,000/-. 13. No doubt, in view of the decision of the Apex Court in **Pranay Sethi** 's case, in the case of a self employed person, who died at the age of 26, 50% of the monthly income would be added to his actual income as loss of future prospectus. Thus, the total monthly income of the petitioner is Rs. 37,500/- (Rs.25,000 + Rs.12,500). The tribunal has taken 10% of the monthly income as income tax to be paid. Thus, the monthly income of the deceased would stand reduced to Rs. 33,750/-. Again 50% of the said amount is to be deducted for the personal and living expenses of the deceased. Thus the monthly income fixed for calculating the loss of dependency is Rs.16,875/-. In the above view the MACA No. 3679 of 2017 -11- appellants are entitled to get a total amount of Rs. 34,42,500/- (16,875 x 12 x 17) towards loss of dependency. 14. As rightly submitted by the learned counsel for the insurance company, the tribunal went wrong by granting Rs. 25,000/- towards funeral expenses and Rs. 1,00,000/towards loss of estate. In view of the dictum in **Pranay Sethi** 's case, the said amounts are excessive and the same would stand reduced to Rs.15,000/- each. Thus the total compensation payable to the appellants is Rs. 35,88,000/- - (Rs. Thirty Five Lakhs Eighty Eight Thousand only). The amount awarded in this appeal is given below; Expenses for transportation - Rs.5,000/Funeral Expenses - Rs.15,000/Compensation for pain and sufferings - Rs.10,000/Compensation for loss of love and affection - Rs.1,00,000/Compensation for loss of dependency - Rs.34,42,500/Loss of Estate - Rs.15,000/Damage to clothing - Rs.500/- - Total Rs.35,88,000/ MACA No. 3679 of 2017 -12- 15. All other findings of the tribunal would stand undisturbed and operative. The 3[rd] respondent insurance company is directed to deposit the additional compensation also before the tribunal within a period of 2 months from the date of receipt of a copy of this Judgment. The first appellant is allowed to withdraw 75% and second appellant is allowed to withdraw 25% of the additional compensation. Needless to say, the additional compensation would carry interest as stipulated by the tribunal. 16. The MACA is disposed of accordingly. **Sd/K. HARILAL, JUDGE** EB/26-03-2018