SUDHA w/o LATE YADHUKUMAR, NIDHINKUMAR s/o LATE YADHUKUMAR, and NIVEDHYA d/o LATE YADHUKUMAR v. HAMSA s/o YUSUF; SUJESH s/o SURESH; UNITED INDIA INSURANCE CO. LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943** **MACA NO. 235 OF 2014** **AGAINST THE AWARD IN OPMV 1340/2011 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS 1 TO 3:** 1 SUDHA W/O. LATE YADHUKUMAR, HARIKRISHNA HOUSE, CHEVAYUR P.O., KOZHIKODE. 2 NIDHINKUMAR S/O. LATE YADHUKUMAR, HARIKRISHNA HOUSE, CHEVAYUR P.O., KOZHIKODE. 3 NIVEDHYA D/O. LATE YADHUKUMAR, HARIKRISHNA HOUSE, CHEVAYUR P.O., KOZHIKODE. BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN SMT.VANAJA MADHAVAN ## **RESPONDENTS/RESPONDENTS 1 TO 3:** 1 HAMSA S/O. YUSUF, 16/111, MARAKKARTHODUKA HOUSE, PARAPPIL P.O., KOZHIKODE-673 012. 2 SUJESH S/O. SURESH, MULLATHUPARAMBU HOUSE, KOMMERI, MANKAVU P.O., KOZHIKODE-673 007. MACA 235 OF 2014 2 3 UNITED INDIA INSURANCE COMPANY RAMEEZ ARCADE, CHEROOTY ROAD, KOZHIKODE-673032. (RESPONDENT NO.1 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 04/01/2018 IN IA 3037/17 IN MACA 235/14) R3 BY BY ADV SRI.P.K.MANOJKUMAR SMT.ALICE THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.1.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 235 OF 2014 3 ## **T.R. RAVI, J.** ## **--------------------------------------------** M.A.C.A. No. 235 of 2014 -------------------------------------------Dated this the 25[th] day of January, 2022 ## **JUDGMENT** The wife and children of late Yadhukumar, who died as a result of a motor accident have filed this appeal. On 01.07.2011, the motorcycle which was driven by the deceased was hit by another motorcycle driven by the 2[nd] respondent in a rash and negligent manner. The deceased fell down and sustained grievous head injury. He was admitted at Medical College Hospital, Kozhikode. Later, he was shifted to MIMS Hospital, Kozhikode on 23.07.2011, where he underwent treatment till 14.8.2011 on which day he succumbed to the injuries. The deceased was aged 64 years at the time of the accident. He was working as an Electrical Engineer-Cum-Supervisor in the firm Mechano Electrical Engineers and Contractors, Calicut and claimed to have been earning Rs.20,000/- per month. The appellants preferred a claim for Rs.35 lakhs, limited to Rs.15 lakhs before the Tribunal. 2. The 1[st] petitioner (1[st] appellant) filed proof affidavit, but was not cross-examined. The employer was examined as PW1 and Exhibits A1 to A14 were marked. Even though in the claim petition MACA 235 OF 2014 4 the income of the deceased was shown as Rs.9,000/-, it has later been amended as Rs.20,000/- as per orders of this Court in I.A.No. 215 of 2014. It can be seen from Exhibit A12 that the deceased started working in Steel Complex, Calicut from 30.05.1973 as apprentice and he continued in the service till 1993. Exhibit A3 is the salary Certificate of the deceased, which has been proved by examining PW1 the employer. Exhibit A3 shows that the deceased was drawing a salary of Rs.19,750/- per month. The Tribunal awarded a sum of Rs.9,76,240/- as compensation with 7% interest from the date of the petition. The appellants, aggrieved by the award, have filed this appeal. 3. The counsel for the appellants contended that the amounts granted by the Tribunal as compensation under different heads are wrong and not justified. It is submitted that a sum of Rs.10,000/- was granted towards funeral expenses, which ought to have been Rs.15,000/-. So also, a sum of Rs.10,000/- was granted towards loss of estate, which again ought to have been Rs.15,000/-. The Tribunal granted a sum of Rs.10,000/-towards loss of consortium which ought to have been Rs.40,000/-. So also, the Tribunal granted a sum of Rs.45,000/- (15000x3) towards loss of love and affection instead of granting Rs.40,000/- each to the 2[nd] MACA 235 OF 2014 5 and 3[rd] appellants. Consolidating the compensation under the heads loss of consortium and loss of love and affection, it is submitted that the Tribunal ought to have granted Rs.1,20,000/- instead of Rs.55,000/-, which has been awarded. The above contentions are justified and liable to be accepted. It was further contended that the compensation for loss of dependency should be reworked on the basis of the income of the petitioner, which has been proved to be Rs.19,750/- per month. Even though the counsel for the Insurance Company argued that there is no reason to increase the compensation for loss of dependency, which has been worked out on the basis of a reasonable salary of Rs.6,000/-, I am not inclined to accept the contention. When there is sufficient proof regarding the income there is no reason why the Tribunal should apply a notional income based on its own assumptions. The resort to apply a notional income would arise only when there is no evidence available regarding the income that was being earned by the deceased. The duty of the Tribunal, as well as this Court in cases of this nature is to arrive at the just compensation, which necessarily cannot be ignoring the uncontroverted facts and evidence which are borne out by records. I am hence of the opinion that the loss of dependency has to be calculated on the basis of an income of Rs.19,750/- per MACA 235 OF 2014 6 month. The counsel for the Insurance Company also submitted that in the light of the Finance Act of 2011, tax is to be deducted at source in case of persons earning such high salaries which does not appear to have been done in Exhibit A3. 4. The counsel for the appellant submitted that the Finance Act of 2011 specifically excludes senior citizens who have an income of less than Rs.2,50,000/- from the purview of taxation and hence the deceased was earning less than Rs.2,50,000/- and who was a senior citizen at the time of the accident cannot me made liable for income-tax. I find considerable force in the contention of the appellant and I am of the opinion that no amount needs to be deducted towards income-tax from the additional compensation to be awarded. 5. The counsel for the appellant points out that the Hon'ble Supreme Court has in its judgment dated 25.10.2021 in **N.Jayasree & Ors. v. Cholamandalam MS General Insurance Co.Ltd.** reported in **[2021 (6) KHC 163 (SC)]** held that the claimants will be entitled to 10% enhancement every three years for the amounts payable under the conventional heads of loss of consortium, funeral expenses and loss of estate as determined in the judgment of the Apex Court in **National Insurance Co.Ltd. v.** MACA 235 OF 2014 7 **Pranay Sethi** reported in **[(2017) 16 SCC 680]** . It is hence submitted that while fixing amounts payable under the above heads, necessary increase of 10% has also to be made. In the light of the above judgments, the amount payable under the heads funeral expenses and loss of estate will be Rs.16,500/- each and the amount payable towards loss of consortium will be Rs.1,32,000/-. 6. In the above circumstances, the appellants are entitled to additional compensation of **Rs.6,500/- each** under the heads funeral expenses and loss of estate and **Rs.77,000/-** under the heads loss of consortium and loss of love and affection. Regarding the compensation for loss of dependency, the appellants are entitled to a sum of Rs.11,06,000/- (19750x12x7x2/3). After deducting the sum of Rs.3,36,000/-, which is awarded by the Tribunal, the appellants will be entitled to a sum of **Rs.7,70,000/-** in addition, under the head loss of dependency. 7. In the result, the appeal is allowed. The appellants are awarded additional compensation of a sum of **Rs.8,60,000/(Rupees Eight Lakh Sixty Thousand only)** with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of realisation, with proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation along with interest 8 MACA 235 OF 2014 thereon, before the Tribunal, within two months from the date of receipt of a certified copy of the judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn