The Oriental Insurance Co. Ltd. v. Anie P George and Others

M.A.C.A.No.1009 of 2014 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943 MACA NO. 1009 OF 2014** **AGAINST THE AWARD DATED 28.02.2014 IN OP(MV) NO.689/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT/3RD RESPONDENT:** THE ORIENTAL INSURANCE CO. LTD AHMED NAGAR, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENTS:CLAIMANTS** 1 ANIE P GEORGE W/O.LATE JOSE K.GEORGE, PARAKKATT (H), KOONAMMAVU, VARAPPUZHA, ERNAKULAM DISTRICT, KERALA STATE-683517. 2 MINOR JUAN S/O.LATE JOSE K.GEORGE, (D.O.B.16-1-1999), PARAKKATT (H), KOONAMMAVU, VARAPPUZHA, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN ANIE P.GEORGE, W/O.LATE JOSE K.GEORGE, PARAKKATT(H), KOONAMMAVU, VARAPPUZHA, ERNAKULAM DISTRICT-683517. 3 MINOR SHAUN S/O.LATE JOSE K.GEORGE, (D.O.B. 18-12-2000), PARAKKATT (H), KOONAMMAVU, VARAPPUZHA, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN ANIE P.GEORGE, W/O.LATE JOSE K.GEORGE, PARAKKATT(H), KOONAMMAVU, VARAPPUZHA, ERNAKULAM DISTRICT-683517. KERALA STATE. 4 MINOR SHARON S/O.LATE JOSE K.GEORGE, (D.O.B. 16-9-2002), PARAKKATT (H), KOONAMMAVU, VARAPPUZHA, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN ANIE P.GEORGE, W/O.LATE JOSE K.GEORGE, PARAKKATT(H), KOONAMMAVU, VARAPPUZHA, ERNAKULAM DISTRICT-683517. M.A.C.A.No.1009 of 2014 2 5 CHINNAMMA GEORGE W/O.LATE GEORGE, KUNJELIPARAMBIL (H), CHALIPPALAM, CHENDAMANGALAM, N.PARAVUR, PIN683513. BY ADV SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1009 of 2014 3 ## _**A. BADHARUDEEN, J.**_ ================================ M.A.C.A.No.1009 of 2014 ================================ Dated this the 9[th] day of August, 2021 ## _**JUDGMENT**_ The 3[rd] respondent, insurance company, who is aggrieved by the quantum of compensation awarded in O.P(MV) No.689 of 2007 as per award dated 28.2.2014, has preferred this appeal. The original petitioners are the respondents herein. I would like to refer the parties in this appeal with respect to their status before the Tribunal. 2. The original petitioners, who are dependents of deceased Jose K.George, approached the Tribunal and sought compensation to the tune of Rs.1,28,00,000/- on account of the death of Jose K.George, who died in a motor accident occurred on 25.01.2007. 3. The petitioners alleged that the accident was contributed by the original 2[nd] respondent, who drove the vehicle at the time of accident in a rash and negligent manner. 4. On anxious consideration of the matter in this case along with O.P(MV) No.688 of 2007, the learned Tribunal granted Rs.74,80,360/- as compensation along with 8% interest. 5. The learned counsel for the insurance company disputed the M.A.C.A.No.1009 of 2014 4 income fixed by the Tribunal in the case of the deceased to the tune of Rs.35,708/-. According to the learned counsel, the document produced by the petitioners if taken together, then also the income fixed is on a higher side as the documents do not justify the income as fixed by the Tribunal. 6. The learned counsel for the petitioners refuted this argument relying on Exts.A19, A24 & A26. According to the learned counsel for the petitioners, as per Ext.A19, Rs.2,54,500/- was given as salary towards the employees and the deceased during the month of December, 2006. Further as per Ext.A24 income return for the period 2004-2005 of Jose K.George, the gross salary for the year was Rs.1,44,440/-. Similarly, the income for the year 2005-06 as per Ext.A25 comes to Rs.1,71,000/-. As per Ext.A26 the amount would come to Rs.1,71,000/-. 7. On perusal of Ext.A19, it could be gathered that the said document is not signed or authenticated by anybody and it is a simple statement without any seal or signature. However, the Tribunal marked the same and received in evidence. If credence is given to Ext.A19, then also it could be noticed that the income from salary of Jose K.George for the month of December, 2006 is only Rs.12,500/-. Similarly, as per Ext.A24 the income from salary for the period 2004-05 is Rs.1,44,440/-; further as per Ext.A25 the income from salary for the period 2005-06 is Rs.1,71,000/-, that is the period of accident. M.A.C.A.No.1009 of 2014 5 8. In fact, this assessment was made after the death of Sri Jose K.George. This aspect was pointed out by the learned counsel for the insurance company to disbelieve the same. The learned counsel for the insurance company also highlighted the fact that as per Ext.A24, the income from salary of Jose K.George was assessed as Rs.1,44,440/- for the year 2004-05 and a higher rate got assessed for the year 2006-07. In the award in paragraph No.21 it was stated that income was Rs.95,000/- for the year 2005-06. However, the Tribunal has taken Rs.1,71,000/- as income from salary giving emphasize to Ext.A24 alone. However, it appears that though as per Ext.A24 the assessment was Rs.1,71,000/- for the year 2006-07, during the previous year 2005-06, the assessment was only Rs.95,000/-. However, the assessment for the year 2004-05 was Rs.1,44,440/-. Thus it appears that the income from the salary for the last 3 consecutive years was not stable. Thus I am inclined to take average of the highest income to fix the monthly income from salary. Therefore the yearly income from salary is fixed as: Rs.1,44,440/- + 1,71,000/- = Rs.3,15,440.00/2 = Rs.1,57,720/-. 9. Coming to the income from business, the Tribunal relied on Ext.A23 income tax return for the period 2006-07 in respect of Online PC Essentials alone. As per Ext.A23, Rs.3,88,137/- was shown as the taxable income, out of which Rs.1,30,647/- was paid towards M.A.C.A.No.1009 of 2014 6 tax. The Tribunal reduced the said tax amount and fixed Rs.2,57,490/- as the income from business. In this context also, the learned counsel for the insurance company pointed out anomaly on the submission that this return was filed after the death of Jose K.George showing a higher income in deviation from the income shown as Rs.1,60,250/- for the immediate previous year viz., 2005-06. This submission appears to be having force. In fact, the Tribunal ignored the fact that the income of the firm during the period 2004-05 was Rs.38,684/-. Thus it appears that the income from the business was not stable though the income was too high as per Ext.A23. Since the income is not stable for the last 3 years, I am of the view that the average income for the year 2005-006 and 2006-07 would be taken to fix the monthly income from the business. If so the monthly income from the business would be : 101611 [160250–58639(taxpaid)] + 257496 =359107/2 =179554. Therefore, the total yearly income of late Jose K.George would be : Rs.1,57,720/- + 1,79,554/-=Rs.3,37,274/12 = Rs.28,106/-. It is submitted by the learned counsel for the petitioner that at least Rs.30,000/has to be fixed as the monthly income of the deceased considering the evidence available. But the learned counsel for the insurance company opposed this contention and submitted that nothing in excess of Rs.25,000/would be fixed as the monthly income in this case. Anyhow based on the income tax returns as discussed above, I have fixed the monthly income as M.A.C.A.No.1009 of 2014 7 Rs.28,106/-. 40% addition only permissible in view of the decision reported in _**National Insurance Company Limited v. Pranay Sethi and Ors.**_ [(2017) 16 SCC 680]. The same would come to Rs.11,242/-. Thus the income fixed for calculating the loss of dependency would come to : Rs.28,106/- + Rs.11,242/- = Rs.39,348/-. Thus the loss of dependency income would come to:39348 X12X15X3/4 = Rs.53,11,980/-. 10. Hence the dependency income entitled is reduced to Rs.53,11,980/- instead of Rs.72,30,960/-. The learned counsel for the insurance company submitted that the Tribunal went wrong in granting Rs.1 lakh as loss of consortium and Rs.1 lakh under the head loss of love and affection. In fact loss of love and affection is not permissible in view of the decision of the Honourable Supreme Court in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur**_ . Therefore, Rs.1 lakh granted under this head also is reduced. 11. Coming to loss of consortium, in fact following the ratio in _**Pranay Sethi**_ ( _supra_ ), Rs.40,000/- each shall be entitled by the petitioners under the head loss of consortium. So the amount ought to be granted was Rs.2,00,000/-. Therefore, the compensation under the head **loss of consortium is increased to Rs.2,00,000/- from Rs.1 lakh** . 12. Coming to the other challenge, it is submitted by the learned counsel for the insurance company that towards funeral expense, M.A.C.A.No.1009 of 2014 8 Rs.25,000/- was granted by the Tribunal. Therefore, reduction in this head also required relying on the decision reported in _**National Insurance Company Limited v. Pranay Sethi and Ors.**_ [(2017) 16 SCC 680]. Disspelling the argument, the learned counsel for the petitioners submitted that Rs.20,000/- was granted together towards `transportation to hospital' and `funeral expenses' and therefore Rs.10,000/- to be treated as compensation towards transport to hospital and Rs.15,000/- towards compensation towards funeral expenses. The above submission is having force. Therefore, Rs.25,000/- to be read as Rs.15,000/- towards funeral expenses and Rs.10,000/- towards transportation to hospital. It is submitted by the learned counsel for the petitioners further that no amount under the head `pain and suffering' was granted by the Tribunal and Rs.5,000/- to Rs.15,000/- is admissible following the ratio in _**Sannasi & Ors. v. The Manager, National Insurance Co. Ltd.**_ ( _supra_ ). However, the learned counsel for the Insurance Company resisted this argument and submitted that in view of the latest 3 Bench decision of the Apex Court reported in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur**_ , pain and suffering or hardship caused to the legal heirs of the deceased is not liable to be granted. When the decision is gone through, this submission appears to be correct. In view of the matter, no amount under the head pain and suffering is to be granted. Similarly, the learned counsel for the M.A.C.A.No.1009 of 2014 9 petitioners is right in claiming **Rs.15,000/- under the head loss of estate** following the ratio in _**Pranay Sethi**_ 's case ( _supra)_ . Therefore, the said amount is also given in addition. 13. Thus the amount entitled would come to Rs.55,51,980/-, rounded to Rs.55,52,000/-, as shown below: |Sl.No.|Head of claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Amount modified<br>by this Court<br>(Rs.)| |---|---|---|---| |1|Pain and sufferings|Nil|Nil| |2|Loss of income for the<br>family|72,30,960.00|53,11,980| |3|Loss of love, affection,<br>companionship, guidance<br>and security to the<br>petitioners|1,00,000.00|nil| |4|Loss of consortium|1,00,000.00|2,00,000.00| |5|Transport to hospital|25,000.00|10000| |6|Funeral Expenses||15000| |7|Loss of estate|Nil|15000| ||||| ||Total|**74,80,360.00**|**55,51,980**| So the award is modified and a sum of Rs.55,52,000/- is granted. ## 14. In the result: a) This M.A.C.A is allowed in part. b) Modified award passed to the tune of _**Rs.55,52,000/-**_ _**(Rupees Fifty five lakh fifty two thousand only)**_ to be paid by the M.A.C.A.No.1009 of 2014 10 respondents jointly and severally with 8% interest granted by the Tribunal and the amount shall be deposited by the insurance company being the indemnifier of the insured. c) The appellant/3[rd] respondent insurer is directed to deposit the entire amount of compensation as apportioned by the Tribunal within a period of two months from this date. On deposit, the petitioners are at liberty to release the same forthwith. ## _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ rtr/