Subaida w/o Muhammed Haji and others v. The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 MACA.No. 1878 of 2010() ----------------------OPMV.582/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT/3RD RESPONDENT ---------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, THODUPUZHA NOW REPRESENTED BY ITS ASSISTANT MANAGER,REGIONAL OFFICE,METRO PALACE,KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT/ PETITIONER ------------------------- 1. SUBAIDA,W/O.MUHAMMED HAJI,PATHUKANDATHI HOUSE,VAMMUGHAM.P.O,KADALOOR,QUILANDY TALUK, KOZHIKODE DISTRICT. 2. SUHAIRA,W/O.AAZAR, DO. DO. 3. SHUHAIB,S/O.MUHAMMED HAJI,DO. DO. 4. SUHAIL,S/O.MUHAMMED HAJI, DO. DO. 5. KUNJAYSHA,W/O.ABOOBACKER,DO. DO. ADV. SRI.V.V.ASOKAN FOR R1,4 & 5 SMT.RUKHIYABI MOHD KUNHI FOR R1,4 & 5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1878 of 2010 ---------------------------------------Dated this the 16[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Insurer is the appellant. Claimants are the wife, children and mother of a deceased person who was aged between 45-50 years, a business man in Gulf, who had succumbed to injuries suffered in a motor accident which took place on 11/3/2007. Against a total claim of Rs.15,00,000/-, the tribunal awarded a total amount of Rs.15,19,600/- as compensation as per the details which are given below: ||Rs.| |---|---| |Dependency compensation|14,62,500/-| |(Rs.12,500/- x ¾ x 12 x 13)|| |Loss of consortium|10,000/-| |Loss of love and affection, loss of|40,000/-| |estate and other conventional|| |heads (Rs.8,000/- x 5)|| |Transport|1,500/-| |Funeral|5,000/-| |Damage to clothing|600/-| ||------------------| |**Total**|**15,19,600/-**| ||**========**| 2 M.A.C.A.No.1878 of 2010 2. The insurance company has preferred this appeal. We have heard the learned counsel for the appellant/insurance company and the respondents/claimants. The learned counsel for the insurance company assails the impugned award on various grounds. 3. First of all, it is contended that the tribunal has grossly erred in assuming that the deceased was earning a monthly income of Rs.12,500/-. With no reliable and cogent data in support of the tall claims made by the claimants, the tribunal erred in accepting Rs.12,500/- as the monthly income. 4. It is next contended that the tribunal erred in reckoning ¼ alone as the amount to be set apart for the personal expenses of the deceased. The deceased was having only his wife and one minor child depending on him. It is true that he had two other children who had already attained the age of majority. One of them was a married daughter also. In addition to that, the claimants had claimed that the mother of the deceased was also dependent on the deceased. However, no evidence is made available as to whether the deceased has other siblings on whom the mother could have depended. The learned 3 M.A.C.A.No.1878 of 2010 counsel contends that, at any rate, in the circumstances of the case, setting apart only ¼ as the amount for the personal expenses of the deceased is unjustified. The learned counsel for the appellant submits that even going by the evidence of the claimants, the deceased used to come frequently to the native place. In these circumstances, a higher percentage for the personal income must certainly have been set apart by the tribunal. 5. The learned counsel for the appellant next contends that an amount of Rs.40,000/- set apart as compensation for love and affection, loss of estate and other conventional heads is not justified. The amount of Rs.40,000/- under those heads is certainly excessive, contends counsel. 6. The learned counsel for the claimants, on the contrary, asserts that the tribunal had only assumed that the deceased must have been earning an income of Rs.100 Dirhams per month. That is shockingly inadequate. At any rate, the amount so awarded does not warrant appellate interference at the hands of this court, contends counsel. The learned counsel further submits that following the dictum in **Sarla Verma v.** 4 M.A.C.A.No.1878 of 2010 **D.T.C [(2009)6 SCC 121]** ¼ alone deserves to be deducted towards personal expenses considering the fact that the wife, three children and mother were depending on the deceased. The learned counsel for the respondents/claimants further submits that a total amount of Rs.50,000/- alone has been awarded under the head of loss of consortium, loss of affection, loss of estate etc. The total amount awarded does not, at any rate, warrant interference, submits the learned counsel for the appellant. 7. We have considered all the relevant inputs. The deceased was employed abroad. It is asserted that he was running a grocery business of his own. No documents whatsoever are produced to show the nature of engagement/employment/business of the deceased or the monthly income derived by him. Indications available only suggest that the deceased was employed abroad. His son tendered evidence which suggests that he was running a business. His passport is produced which shows that he was there in the Gulf State for a fairly long period of time. He was frequently visiting India also, it is revealed from the passport. His bank accounts were produced for a short period of time and 5 M.A.C.A.No.1878 of 2010 that shows that there were remittances and withdrawals during such short period. To summarise, there was no cogent, acceptable and trustworthy evidence throwing any light on the actual quantum of income derived by the deceased. The tribunal, in these circumstances, drew the assumption that Rs.12,500/- must have been the monthly earnings. The courts are certainly left to make their own guesstimation without any specific indication except the long prior residence and working of the deceased abroad and the remittances which are shown to have come into his account for a very short period of time. The learned counsel for the appellant is correct in his submission that in respect of such a person, at any rate, a higher amount must have been deducted towards the personal expenses. 8. We are satisfied that in the absence of more authentic, cogent and acceptable data, the court will have to draw an appropriate presumption of prudence about the possible income of the deceased. Having rendered our anxious consideration to all the relevant inputs, we are of the opinion that Rs.10,000/- can be reckoned as the monthly income and that 1/3 must be set apart for the personal expenses of the deceased. 6 M.A.C.A.No.1878 of 2010 13 has rightly been reckoned as the multiplier by the tribunal. The total amount of Rs.50,000/- awarded under the composite head of loss of consortium, loss of love and affection, loss of estate etc. according to us, do not warrant interference. The total global amount of Rs.50,000/- does not warrant interference invoking our appellate jurisdiction under Section 173 of the M.V.Act, we hold. 9. The above discussions lead us to the conclusion that the appellant is entitled only for an amount of Rs.10,40,000/(Rs.10,000/-x12 x 2/3 x 13) under the head of loss of dependency. The total amount of compensation will hence stand reduced as follows: Compensation for loss of dependency Rs.4,22,500/[Rs.14,62,500/- minus Rs.10,40,000/-] 10. The learned counsel for the appellant then contends that the tribunal erred in coming to the conclusion that the driver of the insured vehicle was entirely liable for the accident. The deceased was riding a scooter. No oral evidence is adduced on the question of negligence on either side. Ext.A5 final report/charge sheet submitted by the police has been produced. 7 M.A.C.A.No.1878 of 2010 There is admission by PW1/3[rd] claimant that his father did not have a valid driving licence to drive a motor cycle. The learned counsel for the appellant submits that in the absence of driving licence to ride a motor cycle, the tribunal ought to have held that the deceased had also contributed to the unfortunate accident. 11. By the unreported decision in **The New India Assurance Company Ltd. v. Pazhaniammal and others [M.A.C.A No.1700 of 2008 dated 20/07/2011** this Court had accepted the practice of the tribunals acting upon the final report/charge sheet filed by the police in the absence of any better evidence on the question. In the instant case, police have conducted investigation and have come to the conclusion that the driver of the insured bus was culpably negligent and was responsible for the accident. Ext.A5 final report/charge sheet confirms this conclusion. No better evidence is adduced by either side. Ext.A5 has been marked without any objection. That having been marked, it is safe to hold that the burden had shifted to the person who wants to make assertions contrary to Ext.A5. The appellant has not discharged that burden. 8 M.A.C.A.No.1878 of 2010 12. The mere fact that the deceased did not have a valid driving licence to ride a motor cycle cannot, ipso facto, be held to be sufficient to prove contributory negligence on the part of the deceased. We are not persuaded to agree that there are any satisfactory indications to point to the contributory negligence on the part of the deceased. The deceased was not there to give evidence. The one present there who could definitely have thrown light on the cause of the accident is the driver of the insured vehicle. The driver has not chosen to enter the witness stand. In these circumstances, we find no fault with the tribunal for having chosen, in the nature of the evidence that is available, to accept and act upon Ext.A5 final report. 13. We are, in these circumstances, not persuaded to agree that the blame for the accident to any extent can be placed at the doors of the deceased safely. The challenge on that ground cannot hence succeed. 14. The above discussions lead us to the conclusion that the compensation amount awarded has to be reduced by an amount of Rs.4,22,500/- (Rs.14,62,500/- minus Rs.10,40,000/-). The challenge succeeds only to the above extent. 9 M.A.C.A.No.1878 of 2010 15. In the result, a) This appeal is allowed in part. b) All other directions of the Tribunal are upheld. But, it is held that the claimants/respondents shall be entitled only for an amount of Rs.10,97,100/- (Rupees ten lakhs ninety seven thousand and one hundred only) (Rs.15,19,600/- minus Rs.4,22,500/-). **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1878 of 2010 10 11 M.A.C.A.No.1878 of 2010 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010