The Oriental Insurance Co. Ltd. v. Beena O.V. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940** **MACA.No. 89 of 2014** **----------------------** **AGAINST THE AWARD IN OPMV 1644/2005 of ADDL.D.C.-II & MACT, MAVELIKKARA DATED 22-10-2013** ## **APPELLANT(S)/3RD RESPONDENT:** ## **----------------------------** **THE ORIENTAL INSURANCE CO. LTD.** **ALAPPUZHA, REPRESENTED BY ITS AUTHORISED SIGNATORY THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH KOCHI-18.** **BY ADV.SRI.A.R.GEORGE** ## **RESPONDENT(S)/CLAIMANTS:** **------------------------** ## **1. BEENA O.V.** **KATTUPARAMBIL HOUSE, PONAKAM MURI, THEKKEKARA VILLAGE, PUNNAMOODU, MAVELIKARA.** **2. SILPA BALACHANDRAN (MINOR) KATTUPARAMBIL HOUSE, PONAKAM MURI, THEKKEKARA VILLAGE, PUNNAMOODU, MAVELIKARA.** ## **3. NITHIN BALACHANDRAN (MINOR)** **KATTUPARAMBIL HOUSE, PONAKAM MURI, THEKKEKARA VILLAGE, PUNNAMOODU, MAVELIKARA.** ## **4. BHARATHIAMMA** **KATTUPARAMBIL HOUSE, PONAKAM MURI, THEKKEKARA VILLAGE, PUNNAMOODU, MAVELIKARA.** **(MINOR RESPONDENTS 2&3 REPRESENTED BY THEIR MOTHER AND NEXT FRIEND - THE 1ST RESPONDENT)** **R1-R4 BY ADV. SRI.K.GOPALAKRISHNA KURUP (SR.) R1-R4 BY ADV. SRI.S.MANU** **R1-R4 BY ADV. SRI.ABHISHEK KURIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2018 ALONG WITH MACA NO.2063/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **nkr** ## **P.D.RAJAN, J.** ## ********************************************************* M.A.C.A Nos.89 & 2063 of 2014** *********************************************************** Dated this the 1[st] day of August, 2018 ## **J U D G M E N T** These appeals are preferred against the award in O.P. (M.V.)No.1644/2005 of Motor Accidents Claims Tribunal, Mavelikara. M.A.C.A.No.89/2014 is preferred by the insurer of the vehicle and M.A.C.A.No.2063/2014 is preferred by the dependants of the deceased Balachandran respectively. On 08.06.2005 at about 3.15 p.m, the deceased Balachandran sustained serious injuries in a motor accident and he succumbed to the injuries while undergoing treatment at VSM Hospital, Thattarambalam. The learned Tribunal awarded compensation for Rs.12,33,000/- (Rupees twelve lakh thirty three thousand only) with 7.5% interest and proportionate cost. Being aggrieved by that, the dependants of the deceased Balanchandran and the insurer preferred the above appeals. 2. The case of the claimants in the lower court was -2- M.A.C.A.Nos.89 & 2063 of 2014 that, on 08.06.2005 at about 3.15 p.m, the deceased was travelling in a Maruthi Zen car through the MavelikkaraMannar public road and when he reached at Koickal junction, a goods carriage vehicle bearing registration No.KL-4Q/833 came in a rash and negligent manner, hit against the Maruthi car. As a result, he sustained serious injuries and succumbed to the injuries while undergoing treatment at VSM Hospital. The driver and owner contested the matter by filing written statement. The insurer also admitted the insurance of the vehicle. Claimant's evidences consist of oral testimony of PW1 and Exts.A1 to A18. The respondents did not adduce any evidence. The learned Tribunal awarded the following amount as compensation: |Loss of earnings (total)|:|Rs.|….......| |---|---|---|---| |Loss of earnings (partial)|:|Rs.|….......| |Medical and miscellaneous|||| |expenses|:|Rs.|….......| |Funeral expenses etc|:|Rs.|25,000/-| |Bystander's expense|||| |(Expenditure in the hospital)|:|Rs.|….......| |Transportation charges and|||| |Ambulance charges|:|Rs.|1,000/-| -3- M.A.C.A.Nos.89 & 2063 of 2014 |Extra nourishment|:|Rs.|….......| |---|---|---|---| |Damage to clothing and bicycle|:|Rs.|1,000/-| |Pain and sufferings|:|Rs.|10,000/-| |Loss of dependency/earning power:||Rs.|10,56,000/-| |Loss of estate|:|Rs.|10,000/-| |Loss of love and affection|:|Rs.|30,000/-| |Loss of consortium|:|Rs.|1,00,000/-| |Any other heads|||| |(review statement)|:|Rs.|….......| |||--------------------------|| |**Total**|**:**|**Rs.**|**12,33,000/-**| 3. The learned counsel appearing for the appellant in M.A.C.A2063/2014 contended that the deceased was the Municipal Chairman of the Mavelikkara Municipality and he was getting Rs.4,800/towards honorarium. He was also elected as the President of Thekkekara Service Co-operative Bank with a honorarium of Rs.3,000/-. He was a licensee of ARD No.5 of Mavelikkara Taluk and was getting Rs.5,906/from ration dealership. He was one of the wholesale dealers of M/s.The India Cements Ltd, Kochi and was getting more than Rs.5,000/- from sale of cement. Thus, the total monthly income will be more than Rs.18,000/-. -4- M.A.C.A.Nos.89 & 2063 of 2014 The learned Tribunal took only Rs.12000/- as monthly income for calculating dependency compensation and just amount was not awarded. 4. The learned counsel appearing for the insurer, who is the appellant in M.A.C.A.No.89/2014 contended that excess amount was awarded towards funeral expenses, loss of estate and loss of consortium. Hence, the compensation amount has to be reduced in view of **National Insurance Company V. Pranay Sethi [2017** **(4) KLT 662 (SC)].** Even though, appellant claimed Rs.18,000/- per month, he was not an income tax payee. In the circumstances, just amount was taken by the Tribunal and no interference is necessary. 5. In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the death. But the assessment of damages to the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables. The life expectancy of the deceased and the dependents are the -5- M.A.C.A.Nos.89 & 2063 of 2014 major factors. Secondly the amount that the deceased would have earned during the remaining period of his life, the amount that he would have contributed to the dependents during that period is also relevant. The chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the tribunal. 6. The appellant in M.A.C.A.No.2063/2014 are the dependants of the deceased Balachandran. The insurer has no dispute with regard to the profession of the deceased. It is admitted fact that deceased was the Chairman of the Mavelikkara Municipality and he was getting honorarium @ Rs.4,800/-. Moreover, he was the President of the Thekkekkara Service Co-operative Bank and was getting honorarium of Rs. 3,000/-. Ext.A9 is the certificate issued from the Secretary, Mavelikkara Municipality and Ext.A10 is the certificate issued by Thekkekkara Service Co-operative Bank, Mavelikkara. -6- M.A.C.A.Nos.89 & 2063 of 2014 For corroborating the above income, Exts.A11 & A12 certificates issued by Taluk Supply Officer show that the deceased was the dealer of ARD No.5 of Mavelikkara Taluk and he was getting commission @ Rs.5,906/-. Exts.A13 and A14 are the documents issued by Sales Manager, India Cements Ltd, Kochi, which shows that he was getting 8 to 12 loads per month and was getting Rs.10/bag. Ext.A16 is the letter issued by Commercial Tax Officer. The average business turnover of the deceased was Rs.12,13,320/- for the year 2003-2004 and Rs.16,22,340/- for the year 2004-2005 respectively. On analysis of the above, he was getting more than Rs.10,000/- per month. No evidence has been produced in the lower court to disprove the income stated by the appellants in M.A.C.A.No.2063/2014. The deceased was aged 50 years, but without any evidence, the learned Tribunal reduced his income to Rs.12,000/- on the assumption that, he was not paying any income tax for the above income. The learned counsel appearing for the appellant in M.A.C.A.No.2063/2014 contended that, the -7- M.A.C.A.Nos.89 & 2063 of 2014 honorarium received from the Municipality and the Service Co-operative Bank are not taxable income, and that is why he is not paying income tax. I did not find any reason to repudiate the contention advanced by the learned counsel. Therefore, in the light of the decision of Apex court in **Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735)** and also in **Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)** , income of the deceased is fixed as Rs.15,000/- for calculating dependency compensation. Along with that, 10% is added towards future prospectus. Thus, the income will be Rs.16,500/-. Since there are four dependants, 1/4[th] is to be deducted from the dependency compensation. Therefore, the dependancy compensation is Rs.19,30500/- (16,500 x 12 x 13 x ¼ =19,30,500/-). In view of **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104),** 10% of the income (Rs.1,93,050/-) is to be deducted towards income tax. The balance amount is Rs.17,37,450/-. The learned Tribunal awarded -8- M.A.C.A.Nos.89 & 2063 of 2014 Rs.10,56,000/-. The balance is Rs.6,81,450/- towards the dependency compensation. 7. In view of **National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)],** the appellants are entitled to get Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/towards loss of consortium. The learned Tribunal awarded Rs.25,000/- towards funeral expenses, Rs.10,000/- towards loss of estate and Rs. 1,00,000/towards loss of consortium. Hence, Rs.65,000/- has to be deducted from the total amount. The balance is Rs.6,16,450/-. The dependants are entitled to get Rs.6,16,450/- with 9% interest and proportionate cost. The insurer, who is the appellant in M.A.C.A.No. 89/2014 is directed to satisfy the enhanced compensation within a period of thirty days, from the date of receipt of a copy of this award, failing which, it will carry 12% interest from the date of default. I also make it clear that there is a delay of 81 days in filing the appeal, the appellant in M.A.C.A.2063/2014 is not entitled to get interest for that -9- M.A.C.A.Nos.89 & 2063 of 2014 period. The dependents only claimed Rs. 18,00,000/-. In view of **Rajesh and Ors. vs. Rajbir Singh and Ors. (2013 ACJ 1403)** for awarding just amount as compensation, further amendment of the claim petition is not necessary. The insurer is directed to deposit the balance amount forthwith. Accordingly, these two appeals are disposed of. **Sd/P.D.RAJAN, JUDGE** //TRUE COPY// P.A.TO JUDGE nkr/02.08.2018