SUJIRA A, SUHAIM SULAIMAN, SUBANA SULAIMAN v. MANOJ T.G, NAGESH, THE NEW INDIA INSURANCE COMPANY LTD., JACOB MATHEW

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 MACA NO. 866 OF 2014`** ``` AGAINST THE AWARD IN OP(MV)NO.84/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS:`** ``` 1SUJIRA A AGED 36 YEARS W/O.LATE SULAIMAN E.K,NISAR VILLA, VADUTHALA JETTY P O, AROOKUTTI, CHERTHALA, ALAPPUZHA-688535 2SUHAIM SULAIMAN MINOR AGED 15 YEARS D/O.LATE SULAIMAN E.K, NISAR VILLA, VADUTHALA JETTY P O, AROOKUTTI, CHERTHALA, ALAPPUZHA-688535 3SUBANA SULAIMAN MINOR AGED 9 YEARS D/O.LATE SULAIMAN E.K, NISAR VILLA, VADUTHALA JETTY P O, AROOKUTTI, CHERTHALA, ALAPPUZHA-688535 (MINOR APPELLANTS 2 AND 3 REPRESENTED BY THEIR MOTHER AND GUARDIAN, APPELLANT NO.1) BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN ``` ## **`RESPONDENTS:`** |`1`|`MANOJ T.G`| |---|---| ||`AGED 39 YEARS`| ||`S/O.GOPI K.K, THATTAMPARAMPU, PALLIPPURAM P O,`| ||`CHERTHALA-688541`| |`2`|`NAGESH`| ||`S/O.NADARAJAN, PALLIYIL HOUSE, ULAVAIPPU P O,`| ||`CHERTHALA, ALAPPUZHA-688539`| |`3`|`THE NEW INDIA INSURANCE COMPANY LTD.,`| ||`MUVATTUPUZHA BRANCH, PIN 686 673.`| |`4`|`JACOB MATHEW`| ||`VATTAKUZHIYIL HOUSE, KALLOORKKAD,`| ||`MUVATTUPUZHA, PIN 686668.`| ||`BY ADV SRI.P.JACOB MATHEW`| ## **`MACA NO. 866 OF 2014 2`** ``` SRI.MATHEWS JACOB (SR) SMT.PREETHY NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 866 OF 2014 3 ``` ## **`JUDGMENT`** This appeal, by the wife and children of Sulaiman - who was unfortunately killed in a road accident on 29.09.2011, when the motor cycle he was riding was hit by the offending vehicle driven in a rash and negligent manner - calls into question the adequacy of the compensation awarded to them for his death. 2. The appellants filed O.P(MV)No.84 of 2012 before the Motor Accidents Claims Tribunal, Ernakulam (’Tribunal’ for short), seeking compensation of an amount of Rs.50,50,000/-, limited to Rs.50,00,000/-; but which has been allowed only to a sum of Rs.7,14,000/-. They assert that this is exiguous and pray that it be enhanced substantially, particularly because late Sulaiman was working abroad for more than 17 years, earning in excess of Rs.1,25,000/- per month. 3. Sri.P.B.Subramanyan – learned counsel appearing for the appellants, argued that the factum of late Sulaiman working abroad is established from Ext.A11, which also has endorsements to the effect that he was doing so for nearly 17 years prior to the accident. He then took me through Ext.A8, which is a Salary Certificate issued by a company in Riyad, Saudi Arabia, which certifies that he was drawing SR10,000 per month. He argued that this Certificate could ## **`MACA NO. 866 OF 2014 4`** not have been brushed aside by the learned Tribunal because, it has been attested by the Indian Embassy validly. 4. Sri.P.B.Subramanyan, thereafter, submitted that the amount under the head ‘Loss of Consortium’ granted to his clients is also inadequate because they are entitled to Rs.40,000/- each; while denial of compensation under the head ‘Loss of Estate’ is illegal. He concluded asserting that an amount of Rs.15,000/- ought to have been granted under the head ‘Funeral Expenses’, as against Rs.5,000/- now awarded by the Tribunal since, _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]**_ authorizes such a figure. He thus prayed that this appeal be allowed. 5. In response, Sri.Mathews Jacob, learned Senior Counsel, instructed by Smt.Preethy Nair – learned Standing Counsel for the Insurance Company, argued that since the evidence on record is insufficient to prove that the deceased was earning as stated in Ext.A8, the learned Tribunal was justified in having adopted his notional income to be Rs.4,000/- per month. He then argued that, in fact, the sums awarded by the Tribunal under the head ‘Loss of Love and Affection’ was impermissible, as per _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780]**_ and prayed that same be deleted. ## **`MACA NO. 866 OF 2014 5`** 6. I have considered the afore rival submissions and have also gone through the evidence on record. 7. I have examined Ext.A8, which is the Certificate issued by a Company in Riyad, Saudi Arabia, relied upon vehemently by the appellants. It certainly records that late Sulaiman was drawing SR10,000 per month and this Certificate has been attested by the competent Authority of the Indian Embassy. This is admitted by the Insurance Company also. One fails to understand, therefore, how the Tribunal could have refused to accept this document, as being not proved properly. 8. That said, certainly, the salary that late Sulaiman was drawing in Riyad cannot be automatically compared to what he would have earned, had he been working as an electrician in India. Going by the exchange rates of the year 2011 – when the accident occurred – late Sulaiman would have been earning a shade less than Rs.1 lakh in Riyad; and 1/3rd of the same, namely Rs.32,000/-, can safely be taken to be what he would have earned in India, had he been working here. This figure will have to be then added by another 10% towards future prospects, since he was only 44 years at the time of the horrible accident and his unfortunate death. 9. That being concluded, the deduction of 1/4th towards ## **`MACA NO. 866 OF 2014 6`** personal expenses from the income of the deceased is not proper because he is survived by wife and two children. The deduction, hence, ought to have been 1/3rd, as per _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].**_ 10. Moving on, the compensation awarded by the Tribunal under the head ‘Funeral Expenses’ will certainly have to be revised to Rs.15,000/- since _**Pranay Sethi (Supra)**_ authorizes only this; while another Rs.15,000/- will have to be added as compensation for ‘Loss of Estate’, since the said precedent also mandates it. 11. However, the submissions of learned Senior Counsel, that no amounts could have been granted under the head ‘Loss of Love and Affection’ certainly has force; though the compensation under the head ‘Loss of Consortium’ will have to be enhanced to Rs.1,20,000/-, reckoning Rs.40,000/- each in favour of the appellants, as per _**Pranay Sethi (Supra).**_ Resultantly, this appeal is partly allowed in the following manner: (a) The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.39,42,000/-, from Rs.5,04,000/- now awarded by the Tribunal, reckoning the notional income of the deceased to be ## **`MACA NO. 866 OF 2014 7`** Rs.32,000/- per month, with 10% future prospects added to it and 1/3rd deducted towards his personal expenses as per _**Sarla Verma**_ ## _**(Supra).**_ (b) The compensation under the head ‘Funeral Expenses’ is enhanced to R.15,000/-, from Rs.5,000/- now awarded by the Tribunal, as per _**Pranay Sethi (Supra).**_ - (c) An additional amount of Rs.15,000/- is awarded under the - head ‘Loss of Estate’, as per _**Pranay Sethi (Supra).**_ (d) The compensation for ‘Loss of Consortium’ is enhanced to Rs.1,20,000/-, from Rs.1,00,000/- now awarded by the Tribunal, as per _**Pranay Sethi (Supra).**_ (e) The compensation awarded by the Tribunal under the head ‘Love and Affection’ is deleted. Consequently, the appellants will be at full liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 7% (reducing the rate of interest of 8% granted by the Tribunal, in view of the escalation granted by this Court), from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ## **`MACA NO. 866 OF 2014 8`** In view of the afore, the sums 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 ``` ``` MC/1.4 ```