Susamma @ Ally v. Daniel N.D. and others (MACA Nos. 1709/2014; 1415/2014; 1416/2014; 1732/2014)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ``` ## **`MACA NO. 1709 OF 2014`** ``` AGAINST THE AWARD DATED 17.12.2013 IN OP(MV) 956/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANT/APPELLANT:`** ``` 1SUSAMMA @ ALLY *[DIED] W/O.PAULOSE, RESIDING AT KAZHUTHAKODAM (KANAYAKUZHIYIL) HOUSE, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DIST., REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR.V.E.THOMAS, S/O.ESTHAPPANOSE VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM. ``` ``` ADDL.2MISS BETSY PAULOSE * D/O.LATE PAULOSE RESIDING AT 318, MALLARD ROAD, CARLE PLACE, NEW YORK ,U.S.A. ``` ## **`ADDL.3 BEN PAULOSE*`** ``` S/O.LATE PAULOSE RESIDING AT 318, MALLARD ROAD, CARLE PLACE, NEW YORK, U.S.A. ``` ``` *BOTH REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR. V.E. THOMAS, S/O. ESTHAPPANOSE VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM. *[ADDITIONAL APPELLANTS NO. 2 AND 3 ARE IMPLEADED AS PER ORDER DATED 12/01/2023 IN IA-1/2022 IN MACA 1709/2014] ``` ## **`BY ADV ANEY PAUL`** ## **`RESPONDENTS/RESPONDENTS:`** ``` 1DANIEL N.D NEDUMPARA HOUSE, RAJAKADU P.O., PAZHAYAPADUTHI, IDUKKY DISTRICT, KERALA STATE, PIN 685566. ``` ``` 2M.JOSEMON **[DELETED] KAMMATTIL HOUSE, CHEMMATHUKARA P.O., VAIKOM, KOTTAYAM DISTRICT, KERALA STATE, PIN 686606. ``` - **`3 THE NATIONAL INSURANCE CO.LTD. DAMODAR CHAMBERS, STATUE JUNCTION, THRIPUNITHURA, ERNAKULAM DISTRICT, KERALA STATE.`** ``` 2 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` - **`4 ALIYAMMA W/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE, PIN 685556.`** - **`5 PRINCE THOMAS S/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE, PIN. 685566.`** - **`6 PRINCY THOMAS D/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE, PIN. 685566.`** - **`7 JINCY THOMAS D/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE, PIN. 685566.`** ``` **[NAME OF RESPONDENT NO.2 IS DELETED FROM THE ARRAY OF RESPONDENTS, AT THE RISK OF THE APPELLANTS, AS PER ORDER DATED 16.01.2024 IN IA-1/2023 IN MACA-1709/2014] ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2024, ALONG WITH MACA.1415/2014, 1416/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, ``` ## **`1945`** ## **`MACA NO. 1415 OF 2014`** ``` AGAINST THE AWARD DATED 17.12.2013 IN OP(MV) 956/2000 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED TRIPUNITHURA, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE,OMANA BUILDING,M.G.ROAD,KOCHI-35. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENT/PETITIONER:`** ``` 1SUSAMMA @ ALLY * [DIED] W/O.LATEPOULOSE, KAZHUTHAKODAM(KANYAKUZHIYIL)HOUSE, MAMMATTIKANAM.P.O.,VIA RAJAKKADU, IDUKKI DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR.V.E.THOMAS,S/O.ESTHAPPANOSE, VETTICKAL HOUSE,BYPASS ROAD, THRIKKARIYOOR.P.O,KOTHAMANGALAM,PIN-686691. ``` ``` ADDL.2BETSY PAULOSE * ``` ``` D/O. LATE PAULOSE, RESIDING AT 318, MALLARD ROAD, CARLE PLACE, NEW YORK, U.S.A. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR. V.E. THOMAS, S/O. ESTAPPANOSE, VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM) ``` ``` 4 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` ADDL.3BEN PAULOSE * S/O. LATE POULOSE, RESIDING AT 318, MALLARD ROAD, CARLE PLACE, NEW YORK, U.S.A. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR. V.E. THOMAS, S/O. ESTAPPANOSE, VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM) ``` ``` *[THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 AND 3 AS PER ORDER DATED 22/03/2023 IN IA 1/2023 IN MACA 1415/2014] ``` ``` BY ADVS. ANEY PAUL A.S.DILEEP B.PREMALATHA(K/777/2014) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2024, ALONG WITH MACA.1709/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 5 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, ``` ## **`1945`** ## **`MACA NO. 1416 OF 2014`** ``` AGAINST THE AWARD DATED 17.12.2013 IN OP(MV) 957/2000 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LTD TRIPUNITHURA, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. AORD, KOCHI-35. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENT/PETITIONERS 2 TO 4:`** ``` 1SUSAMMA @ ALLY * [DIED] W/O. LATE POULOSE, KAZHUTHAKODAM (KANYAKUZHIYIL) HOUSE, MAMMATTIKANAM.P.O., VIA RAJAKKADU, IDUKKI DISTRICT, NOW RESIDING AT 318, MALLARD ROAD, KARLE PLACE, NEWYORK, USA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR. V.E THOMAS, S/O. ESTHAPPANOSE, VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR.P.O., KOTHAMANGALAM-686691. ``` ``` 2MISS. BETSY POULSE D/O. LATE POULOSE, 318, MALLARD ROAD, KARLE PLACE, NEWYORK, USA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR. V.E THOMAS, S/O. ESTHAPPANOSE, VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR.P.O., KOTHAMANGALAM-686691. ``` ``` 6 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` 3BEN POULOSE S/O. LATE POULOSE, 318,MALLARD ROAD, KARLE PLACE, NEWYORK, USA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR. V.E THOMAS, S/O. ESTHAPPANOSE, VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR.P.O., KOTHAMANGALAM-686691. ``` ``` *[DEATH OF RESPONDENT NO. 1 IS RECORDED AND THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IN THE PARTY ARRAY AS PER ORDER DATED 22/02/2023 IN IA-1/2023 IN MACA 1416/2014] ``` ``` BY ADV ANEY PAUL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2024, ALONG WITH MACA.1709/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 7 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, ``` ## **`1945`** ``` MACA NO. 1732 OF 2014 ``` ``` AGAINST THE AWARD DATED 17.12.2013 IN OP(MV) 957/2000 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANTS/APPELLANTS:`** - **`1 SUSAMMA @ ALLY * [DIED] W/O.PAULOSE, RESIDING AT KAZHUTHAKODAM (KANAYAKUZHIYIL) HOUSE, MAMMATTIKANAM P.O, RAJAKKADU (VIA), IDUKKY DIST. NOW RESIDING AT 318, MALLARD ROAD, CARLE PLACE,`** ``` NEW YORK, U.S.A, REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR.V.E.THOMAS, S/O. ESTHAPPANOSE, VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM. ``` - **`2 MISS. BETSY PAULOSE * D/O.LATE PAULOSE, RESIDING AT 318, MALLARD ROAD CARLE PLACE, NEW YORK, U.S.A., REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR. V.E.THOMAS, S/O. ESTHAPPANOSE VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM.`** - **`3 BEN PAULOSE * S/O.LATE PAULOSE, RESIDING AT 318, MALLARD ROAD,`** ``` CARLE PLACE, NEW YORK, U.S.A., REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR.V.E.THOMAS, S/O.ESTHAPPANOSE VETTICKAL HOUSE, BYPASS ROAD, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM. ``` ``` *[APPELLANTS NO. 2 AND 3 IN THE PARTY ARRAY ARE RECORDED AS LEGAL HEIRS OF DECEASED 1ST APPELLANT AS PER THE MEMO FILED BY COUNSEL OF ``` ``` 8 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` APPELLANT VIDE ORDER DATED 12/01/2023 IN MACA 1732/2014] ``` ## **`BY ADV ANEY PAUL`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 DANIEL N.D NEDUMPARA HOUSE, RAJAKADU P.O., PAZHAYAPADUTHI, IDUKKY DISTRICT, KERALA STATE - 685 566.`** - **`2 M.JOSEMON **[DELETED] KAMMATTIL HOUSE, CHEMMATHUKARA P.O., VAIKOM, KOTTAYAM DISTRICT, KERALA STATE - 686 606.`** - **`3 THE NATIONAL INSURANCE CO.LTD DAMODAR CHAMBERS, STATUE JUNCTION, THRIPUNITHURA, ERNAKULAM DISTRICT, KERALA STATE - 682 038.`** - **`4 ALIYAMMA W/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE - 685 566.`** - **`5 PRINCE THOMAS S/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE - 685 566.`** - **`6 PRINCY THOMAS D/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE - 685 566.`** - **`7 JINCY THOMAS D/O.LATE THOMAS, KAZHUTHAKOTTU HOUSE, KURISUMPADY, MAMMATTIKANAM P.O., RAJAKKADU (VIA), IDUKKY DISTRICT, KERALA STATE - 685 566.`** ``` **[NAME OF RESPONDENT NO.2 IS DELETED FROM THE ARRAY OF RESPONDENTS, AT THE RISK OF THE ``` ``` 9 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` APPELLANTS, AS PER ORDER DATED 16.01.2024 IN IA-1/2023 IN MACA-1732/2014] ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2024, ALONG WITH MACA.1709/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 10 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ## **`JUDGMENT`** ``` [MACA Nos.1709/2014, 1415/2014, 1416/2014, 1732/2014] ``` These appeals arise from a common award passed in OP(MV) Nos.956/2000 and 957/2000 on the files of the Motor Accident Claims Tribunal, Thodupuzha. OP(MV) No.956/2000 was filed by the claimant therein seeking compensation for the injuries sustained to her in a motor accident that occurred on 13.05.2000. OP(MV) No.957/2000 was filed by the legal heirs of one Paulose who died, due to the injuries sustained in the very same accident. Even though, the deceased Paulose sustained injuries in the accident that occurred on 13.05.2000, he succumbed to the injuries on 15.04.2007 while undergoing treatment. 2. The claimant in OP(MV) No.956/2000 was the wife of the deceased. The accident occurred, when the claimant in OP(MV) No.956/2000 and the deceased for whose death, the OP(MV) No.957/2000 was filed, were travelling in a jeep, it capsized, thereby causing serious injuries to the above persons. ``` 11 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` Both the victims were working in U.S.A. The deceased was aged 46 years at the time of the accident and he passed away on 15.04.2007 after a prolonged treatment. According to the claimants, the deceased was working as a Distribution Clerk in the United States Postal Service with an annual income of $40,472. He left behind his wife and two children. (For convenience, the parties in these appeals are hereinafter referred to as per their ranks in the claim petition). 3. As far as the claimant in OP(MV) No.956/2000 is concerned, she was working as a Nurse at North Shore University Hospital at Glencove and the salary she used to receive was $34.238 per hour. According to the claimant in OP(MV) No.956/2000, she sustained very serious injuries, which resulted in physical disablement. The compensation was sought by the respective claimants in such circumstances. The vehicle involved in the accident was being driven by the 1[st] respondent at the time of the accident. The 2[nd] respondent was the registered owner of the said vehicle and it was insured with the 3[rd] respondent. Subsequently, during the pendency of the claim petition, it has ``` 12 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` come out that, the said vehicle was in the name of one K.K. Thomas at the time of the accident and since he was not alive at the relevant time, his legal representatives were impleaded as additional respondents 4 to 7. 4. The 3[rd] respondent alone contested the matter by filing a written statement and additional written statement. They have admitted the coverage of policy for the said vehicle, however, they disputed the liability on various grounds. The quantum of compensation in both the claim petitions was also seriously disputed by them. 5. Both the claim petitions were tried together. To substantiate the claims, the claimants examined PWs 1 and 2, and as documentary evidence, Exts. A1 to A42 were marked. As court exhibit the notification of Ministry of Finance was marked as Ext.X1. From the side of the respondents, RWs1 and 2 were examined and Ext.B1, the policy certificate was marked. After the trial, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent in driving the vehicle and being the insurer, the 3[rd] respondent was held liable to pay the ``` 13 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` compensation. It was also found that the death of the said Paulose was due to the injuries sustained in the accident. Being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation in O.P (M.V)No.956 2000 was fixed as Rs.10,71,770/- and in O.P (M.V)No.957/2000, the compensation was fixed as Rs.1,42,40,825/-. The said amounts were directed to be deposited by the 3[rd] respondent with interest at the rate of 8.5% from the date of petition till realisation. Challenging the quantum of compensation, the 3[rd] respondent/insurer submitted M.A.C.A.No.1415/2014 and M.A.C.A.No.1416/2014. Similarly, seeking enhancement of compensation, the respective claimants have filed M.A.C.A.No.1709/2014 and M.A.C.A.No.1732/2014. 6. Heard Smt. Anney Paul, the learned counsel appearing for the respective claimants/the appellants in M.A.C.A.No.1709/2014 and M.A.C.A.No.1732/2014 and Sri.Mathews Jacob, the learned Senior Counsel appearing for the 3[rd] respondent in the claim petition/the appellant in M.A.C.A.No.1415/2014 and M.A.C.A.No.1416/2014. ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` 14 ``` 7. The only question that arises for consideration is whether the amounts awarded by the Tribunal in the said claim petitions are reasonable or not. The said issues have been adjudicated in the following manner:- **O.P(MV) 956/2000, which is a subject matter in M.A.C.A.No.1709/2014 and M.A.C.A.No.1415/2014** 8. This claim petition was submitted by the claimant seeking compensation for the injuries sustained to her in the motor accident that occurred on 13.05.2000. According to her, she was working as a Nurse with a salary of $34.238 per hour. She was aged 44 years at the time of the accident. According to her, she sustained physical disability consequent to the injuries sustained and to substantiate the same, Ext.A1 disability certificate issued by an Orthopaedic Surgeon was relied on. The said certificate was proved by examining the Doctor who issued the said certificate as PW1. As per the same, the extent of disability was certified as 8% by the Doctor, which was reiterated by him while he was examined as PW1. 9. The learned counsel for the claimant points out that ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` 15 ``` the monthly income taken by the Tribunal for assessing the compensation for disability was only Rs.4,000/- whereas the Tribunal itself accepted the actual salary which was being received by her for the purpose of assessing the loss of income. On the other hand, the learned Senior Counsel appearing for the 3[rd] respondent would submit that, the monthly income taken by the Tribunal for granting compensation for loss of income was extremely on the higher side, in view of the fact that no convincing documents are available to substantiate such a huge monthly income. Besides the same, he submits that, the Tribunal rightly fixed the monthly income as Rs.4,000/- for the purpose of assessing the compensation for disability. According to the learned Senior Counsel, the said amount should have been taken as the monthly income for all purposes as it is in tune with the Indian standards that prevailed at the relevant time. 10. I have carefully gone through the records. The first aspect to be considered is the monthly income taken by the Tribunal for the purpose of assessment of loss of earning capacity of the claimant consequent to the injuries and disability suffered ``` 16 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` by her. The percentage of disability has been accepted by the Tribunal as 8% which is in tune with the certificate issued by the Doctor in this regard. The monthly income of Rs.4,000/- accepted by the Tribunal appears to be correct in view of the fact that, in the evidence it has come out that after a short duration for availing treatment, the claimant rejoined duty in USA and continued to get the income which she used to receive. Of course it is true that, the learned counsel for the claimant brought my attention to the specific assertion made by her while she was examined as PW2 to the effect that she could not continue in full time employment and she has to be satisfied with the employment as a part time avocation thereby there was substantial reduction in the earning. Howwever, there are no convincing evidence to support the same. Even though she claimed that she was unable to continue in the permanent post, all the records relied on by her would indicate that she was continuing in the very same establishment and the said documents do not indicate any lesser remuneration to the claimant. Therefore, in the absence of any other document, to show the reduction in salary consequent to the injuries sustained, ``` 17 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` I do not find any scope for interference as far as the monthly income taken by the Tribunal for assessing the compensation for disability and loss of earning capacity is concerned. This is particularly because, the injuries sustained by the claimant was on her right hand and the percentage of disability certified by the Doctor is only 8%. Even in the medical certificate or in the deposition of PW1, there are no convincing materials to arrive at the conclusion that, the disability claimed to have been sustained by her would seriously affect the employment which she was pursuing at the relevant time. In such circumstances, in the absence of any convincing evidence, I do not find it proper to interfere with the method of computation adopted by the Tribunal for assessing the compensation for disability. 11. The next contention taken by the learned Senior Counsel for the 3rd respondent insurer was with respect to the compensation awarded by the Tribunal for loss of earnings. The learned counsel specifically highlighted the fact that the Tribunal took the annual income for the said purpose as $49,544. The conversion rate was accepted as Rs.46.61 per $, which was as on ``` 18 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` the date of the claim petition. The Tribunal found that, as per Ext. A17, the claimant was on medical leave of absence from 11.07.2000 to 16.12.2000. The Tribunal accepted this and the monthly income was calculated by placing reliance upon Ext.A13 salary certificate and Ext.A34 Income Tax receipts submitted by her and her husband. The compensation for loss of earnings for a period of five months was thus calculated as Rs.9,62,186/- The learned senior counsel appearing for the 3rd respondent would contend that, such a high amount should not have been taken into consideration, in view of the lesser job security and also that the expenses that are likely to be incurred in the US would be high. Therefore, accepting the said monthly income as such for the purpose of taking loss of income was not proper, contends the learned counsel for the 3[rd] respondent. 12. However, the crucial aspect to be noticed is that, the fact that the claimant was employed as a registered Nurse in an establishment in a hospital is clearly evident from records. As far as Ext.A17 is concerned, it is attested by the Consulate General of India in New York. Ext.A13 is the salary certificate, which ``` 19 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` indicates that she has been working in the establishment since 1994. The entries in the passport of the claimant, a copy of which is already on record as Ext.A12 would also fortify the fact that she was employed in the USA during the relevant period. While being examined as PW2, she asserted all these aspects and in the cross-examination, the credibility of the said witness with respect to the salary could not be shattered. Therefore, since her claim is supported by documents in the form of Ext.A13 and Ext.A17, I do not find any justification in interfering with the finding of the Tribunal in this regard by granting an amount of Rs.9,62,186/- as the compensation for loss of earnings. As far as the contention raised by the learned senior counsel with regard to the acceptability of the monthly income in its entirety in the light of the lack of security for the job and the expenses likely to be incurred, I am of the view that, the said criteria would be relevant while determining the compensation for loss of earning capacity of the victim. However, here, the head which we are discussing is the one that relates to the loss of actual earnings and for determining the same the actual loss suffered by the claimant due to the ``` 20 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` injuries sustained are to be taken into consideration. It is evident from the records that, she was regularly employed with the salary referred to above, and after the leave which she availed consequent to the injuries and the treatment availed by her, she rejoined duty and evidently the salary received by her was also almost the same. From the above the only conclusion possible is that for the purpose of assessing the loss of earnings, the actual loss she suffered consequent to the leave is to be taken into consideration and for determining the same, the actual income as reflected in the documents relied on by her has to be taken into account. The Tribunal has calculated the compensation and fixed the monthly income specifically taking note of the aforesaid documents. Since I do not find any valid grounds to take a different view, I do not find any scope for interference in the said findings. Therefore, the contentions raised by the insurer on this aspect are rejected and the award of Rs.9,62,186/- under the said head is confirmed. 13. However, the learned counsel for the claimant points out that, the amount awarded by the tribunal towards pain and ``` 21 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` suffering and loss of amenities are on the lower side. It is discernible from the records that, consequent to the injuries she was under inpatient treatment for 9 days. Taking note of the above, I deem it appropriate to grant a further sum of Rs.7,000 under the head of pain and suffering as Rs.18,000/- awarded by the Tribunal appears to be on the lower side. Similarly, the amount awarded by the Tribunal towards loss of amenities is Rs.15,000/which appears to be on the lower side. Therefore, a further sum of Rs.10,000/- is awarded under the said head. Thus, the additional compensation is determined as Rs.17,000/-. ## **OP(MV)No.957/2006, which is the subject matter in MACA No.1416/2014 and MACA No.1732/2014.** 14. The claim petition in this case was filed seeking compensation for the death of one Paulose due to the injuries sustained in an accident. Initially, the claim petition was filed as the one for compensation for injuries sustained to the said Paulose and as he died during the pendency of the claim petition due to the injuries sustained in the accident, the legal heirs, the appellants in MACA 1732/2014 were impleaded as additional ``` 22 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` petitioners 2 to 4 and the claim petition was converted into that of a petition for death. The deceased was aged 46 years at the time of the accident and he was working as a Distribution Clerk in the United States Postal Department, Long Island District. Ext.A29 is the salary certificate which was attested by the Consulate General of India at New York. Ext.A30 is the attested copy of the passport. Ext.A31 is the certificate issued by W.Hempstead Post Office, United States of America. As per Ext.A29, the deceased was employed in the said establishment since 01.06.1991 and his services were terminated on 28th September 2001 on disability retirement. It is evident from the medical records that, consequent to the injuries sustained by him in the motor accident that occurred on 13.05.2000 he was completely bedridden and therefore the contents of Ext.A29 as to the retirement of the deceased due to disability is thus fortified. The annual income shown in Ext.A29 was $40,472 and it is also stated therein that there is no upper age limit for superannuation and it is possible for the employees in the Postal Department to continue in the employment till he is able to carry out the duties attached to the ``` 23 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ## said employment. 15. The Tribunal after specifically considering all the relevant aspects, particularly the salary as shown in Ext.A29 and also the income tax returns submitted by the deceased along with his wife, determined the annual income of the deceased as Rs.16,07,206/and calculated the compensation by applying a multiplier of 13 and by making a deduction of 1/3rd towards the personal expenses. 16. The learned counsel for the claimants, would contend that, while assessing the compensation, the future prospects of the deceased were not taken into account. On the other hand, the learned senior counsel appearing for the 3rd respondent would contend that the Tribunal should not have adopted such a high amount as the annual income and besides the same, the deduction of 1/3rd was not sufficient. It was pointed out that, while fixing the income and also the deduction towards personal expenses, the Tribunal should have taken into account the high expenses that are likely to incur while living in the U.S.A. It was also contended that job security as far as the ``` 24 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` employment of the deceased was also a criteria which should have been taken into account by the Tribunal. 17. However, after carefully going through the records, I am of the view that, as far as the veracity of the documents relied on by the Tribunal are concerned, the view adopted by the Tribunal appears to be correct. The salary certificate was certified by the Consulate General of India. Of course, it is true that, the certification can only be with reference to the nature of the documents and it cannot be a proof of the contents of the said document. In other words, the genuineness of the said document alone can be established through the said document and the attestation would not mean that the amount specified therein as salary should be accepted as such. Under normal circumstances, this Court could have insisted on better evidence for establishing the income of the deceased on his avocation. However, insisting on such strict evidence, in this case, would result in injustice to the parties as it is practically impossible for any person to summon the official in the Postal Department of the U.S.A. and compel him to attend a court in India to prove the said certificate. Therefore, a ``` 25 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` pragmatic approach needs to be taken while assessing the compensation and evaluating the evidence now made available before this Court. It is seen from the record that, the insurer had made an attempt to produce the notification issued by the Government with respect to the terms and conditions of service of the similarly situated persons in the Postal Department in India. Ext.X1 is the said notification and the same was marked through RW1, a Post Master from the Postal Department in India. The purpose of production of the said document by the respondents was to show the standards of the income, that a similarly placed in person in India whould have received. However, I am of the view that the same cannot be treated as a valid reason to discard the other documents relied on by the claimants. The living standards and the income the persons in India and U.S.A., even if they are holding similar nature of posts, are beyond any comparison and therefore, I am of the view that, when there are documents which sufficiently establish that he was working in a regular employment in U.S.A. with a particular remuneration as salary, that should not be discarded as a whole and the monthly income which a ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` 26 ``` similar employee in Postal Department in India has to be accepted. If such an exercise is done, it would cause grave injustice to the parties. This is particularly because, the income as shown in Ext.A29 is reflected in Ext.A34 income tax returns submitted by the deceased along with his wife as well. Thus, when all the aforesaid aspects are taken into consideration, I am of the view that, the income as fixed by the Tribunal, which is after deducting the tax as reflected in Ext.A34, is a probable and reasonable finding, which does not warrant any interference. However, as far as the deduction towards personal expenses is concerned, I find some force in the contention put forward by the learned senior counsel appearing for the 3rd respondent insurer. Evidently, when the expenses towards personal expenses are taken into consideration, the living conditions of the deceased should be taken into account. In evidence, PW2 clearly admitted that the living expenses in the U.S.A. are very high. Of course, it is true that, standard deductions have been formulated by the Honourable Supreme Court in **Sarla Verma & Ors. v. Delhi Transport Corporation [(2009) 6 SCC 121] and National** ``` 27 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ## **Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** while determining the compensation for loss of dependency. However, those standardized formulae were fixed by the Honourable Supreme Court taking into account the conditions that prevailed in India and when the question of assessing the loss of dependency of a person working in another country arises, a different yardstick needs to be applied by taking into account the living conditions in the said country because, without doing such exercise, a realistic assessment cannot be made. In such circumstances taking into account the probable expenses, that are likely to be much higher than the Indian standards, which the deceased might have incurred had he been alive, 1/3rd deduction made by the Tribunal is not sufficient. In the facts and circumstances of the case, I deem it appropriate to make the deduction of 50%. 18. Another aspect highlighted by the learned counsel for the claimants is that, no addition was made towards future prospects by the Tribunal. I find force in the said contention because in **Pranay Sethi (supra** ) the Honourable Supreme Court ``` 28 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` categorically observed that, when a person coming within the age group of 40 and 50 years dies, for assessing the compensation for loss of dependency an addition of 25%, if he was self-employed and 30%, if he was under a permanent employment, is to be made. As far as this case is concerned, the documents would clearly indicate that, the deceased was working in the Postal Department of U.S.A. since 1991 and he was a permanent employee. It is also discernible from the records that as per the terms and conditions of service, there was no age for superannuation and it was possible for any employee to continue until he was unable to carry out his duties effectively. The said fact has been reiterated by PW2 when she was examined also. In such circumstances I am of the view that the deceased has to be treated as a person with permanent employment with regular increments and therefore 30% of the income should be added. Thus while reassessing the compensation with the above revised criteria, the quantum of compensation comes to Rs.1,35,80,891/- [(16,07,206 + 30%) x 13 x ½)]. The amount already awarded by the Tribunal is Rs.1,39,29,123/- and therefore an of Rs.3,48,232/- is in excess. ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` 29 ``` 19. When moving on to other heads it can be seen that, the Tribunal awarded Rs.25,000/- towards funeral expenses which is in excess of Rs.10,000/-. Therefore, a sum of Rs.10,000/- is to be deducted. Similarly, the Tribunal awarded an amount of Rs.50,000/- towards loss of consortium and a further sum of Rs.1,00,000/- towards loss of love and affection. As per **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130], and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760]** all the claimants being wife and children are entitled for compensation for loss of consortium @ Rs.40,000/- each and thereby making a total sum of Rs.1,20,000/-. It was also held in **Satinder Kaur (supra)** that when compensation for loss of consortium is awarded no separate compensation is to be granted for loss of love and affection. Therefore, both the heads have to be taken together for the purpose of assessing the loss of consortium. Thus, it is found that the compensation awarded by the Tribunal under the said head is in excess by Rs.30,000/- and therefore the said amount is also to be deducted. Accordingly, it is ``` 30 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` found that the total deduction to be made from the compensation now awarded by the Tribunal is Rs.3,88,232/- (3,48,232 + 10,000 + 30,000). 20. At this juncture, the learned counsel for the claimants points out that, despite the fact that the deceased was bedridden for 83 months after the accident, the same was not properly considered while granting compensation for bystander expenses and pain and suffering. Even though the learned counsel for the 3rd respondent insurer opposes the said contention, on a careful examination of the materials placed on record, I find force in the submission made by the claimants in this regard. The records would clearly indicate that the deceased was completely bed ridden after the accident until he died on 15.04.2007. Certainly, the claimants would have incurred expenses towards attendant charges, which was not taken into account while assessing the compensation. Therefore, a reasonable amount needs to be awarded under this head. In **Kajal v. Jagdish Chand [2020 ACJ 1042]** the Honourable Supreme Court was pleased to fix Rs.5,000/- as the bystander expenses. Therefore, the said ``` 31 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` amount can be accepted for assessing the compensation. Since the said expenses have to be granted for a period of 83 months, the period during which he was bedridden, the said amount would come to Rs.4,15,000/-. The Tribunal has already awarded Rs.7,200/- as the compensation for bystander expenses and a further sum of Rs.10,000/- towards additional bystander expenses. After adjusting the same, the additional amount receivable by the claimants would come to Rs.3,97,800/-. 21. As far as the amount towards pain and suffering is concerned, amount awarded by the Tribunal was only Rs.15,000/-, which is too low considering the fact that he was completely bedridden for a period of 83 months. Therefore, a further sum of Rs.25,000/- is awarded under this head. Towards loss of estate, the Tribunal awarded only Rs.10,000/-, in the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** an additional amount of Rs.5,000/- is awarded. Thus, the additional compensation required to be granted is determined as Rs.4,27,800/- [397800+25000+5000]. Thus, when the compensation is re-worked the total additional compensation ``` 32 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` comes to only Rs.39,568/- (427800-388232). 22. However, it is to be noted that, this is a claim in which the total amount awarded by the Tribunal is Rs.1,42,40,825/-. After re-working the compensation referred to above, the additional amount determined is found to be very nominal. As far as the compensation for death is concerned, it is impossible to calculate the same with arithmetical precision. Certain variations are bound to occur depending upon the nature of the case and the circumstances under which the case was decided. Therefore, I am of the view that since, the difference in the amount found to be very negligible when compared to the total amount awarded, I deem it appropriate not to interfere with the quantification done by the Tribunal. Therefore, even though a slight variation was found while re-assessing the compensation, taking note of the possible errors and omissions in the assessment, I do not intend to make any modification to the award passed in O.P.(MV).No.957 of 2000. The amount fixed by the Tribunal is, therefore, confirmed. 23. The learned counsel for the insurer pointed out that, the interest awarded by the Tribunal is 8.5% which is on the ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` 33 ``` higher side. I find force in the said submission and considering the facts and circumstances of the case, the same is modified as 8%. In the light of the above finding, all the above appeals are disposed of with the following findings: - i The award passed in OP(MV) No.956/2000 and O.P. (MV) No.957/2000 dated 17.12.2013 by the Motor Accident Claims Tribunal, Thodupuzha are modified, by fixing the rate of interest as 8% per annum. - ii The quantum of compensation as per the award passed by the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV).No.956 of 2000 is modified by granting an additional compensation of Rs.17,000/-. - iii The quantum of compensation awarded in O.P.(MV) No.957/2000 is confirmed. It is further ordered that the respective claimants shall be entitled to recover the amount as referred to above with interest at the rate of 8% per annum from the date of petition till realization from the 3rd respondent in the claim petition. The 3rd respondent shall deposit the said amount with interest ``` 34 ``` ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` at the rate as referred above with proportionate costs within a period of three months from the date of receipt of a copy of this judgment, after adjusting the amounts already deposited. iv It is further clarified that the claimants shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ncd/scs/DG ``` MACA NO. 1709 OF 2014, MACA NO. 1415 OF 2014, MACA NO. 1416 OF 2014 & MACA NO. 1732 OF 2014 ``` ``` 35 ``` ## **`APPENDIX OF MACA 1709/2014`** ``` RESPONDENT ANNEXURES Annexure A1CERTIFICATE OF DEATH ```