The Oriental Insurance Co. Ltd. v. Salini w/o. Santosh Nair, Minor Agney S. Nair, Kumari and Sreedharan Nair

# **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. 1007 OF 2014** **AGAINST THE AWARD dt.28.2.2014 IN OP(MV).No.688/2007 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.K.S.SANTHI ## **RESPONDENTS/CLAIMANTS:** 1 SALINI W/O.SANTHOSH NAIR (KIZHLYAPPATT), MADATHIPARAMBIL (H), CHENDAMANGALAM P.O., N.PARAVUR, ERNAKULAM DISTRICT PIN: 686 513. 2 MINOR AGNEY S.NAIR S/O.SANTHOSH NAIR KIZHIYAPPATT, MADATHIPARAMBIL (H), CHENDAMANGALAM P.O., REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SALINI, W/O.SANTHOSH NAIR, (KIZHIYAPPATT), MADATHIPARAMBIL (H), CHENDAMANGALAM P.O., N.PARAVUR, ERNAKULAM DISTRICT PIN: 686 513. 3 KUMARI, WO.SREEDHARAN NAIR KIZHIYAPATT (H), KANNIYARKOD, THIRUVILWAMALA, TIRUR, PIN: 676 001. 4 SREEDHARAN NAIR, S/O.SANKARAN NAIR, KIZHIYAPATT (H), KANNIYARKOD, THIRUVILWAMALA, TIRUR, PIN: 676 001. 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.1007 of 2014 2 ## _**A. BADHARUDEEN, J.**_ ================================ M.A.C.A.No.1007 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.688 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 Santhosh Nair, approached the Tribunal and sought compensation to the tune of Rs.70 lakh on account of the death of Santhosh Nair, 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.689 of 2007, the learned Tribunal granted M.A.C.A.No.1007 of 2014 3 Rs.55,71,048/- as compensation along with 8% interest. 5. The learned counsel for the insurance company highlighted certain anomalies in the award, whereby the Tribunal granted excess amount of compensation. According to the learned counsel for the Insurance company, the Tribunal fixed the monthly income of the deceased in this case as Rs.27,500/- based on Ext.A26 salary certificate produced, alleged to be issued by the employer without examining its author. The learned counsel submitted further that as per the income tax return for the period 2006-2007 marked as Ext.A8, the gross salary of the deceased was Rs.1,83,483/-. Similarly, as per Ext.A7 the income was Rs.1,17,065/- for the year 2005-06. By giving emphasize to these documents, the learned counsel submitted that, if the monthly income is calculated based on the I.T returns, the same would be Rs.16,290/-. 6. Controverting this argument, the learned counsel for the petitioners submitted that as per Ext.A6, Rs.30,800/- was the monthly income of the deceased during the month of January, 2007 (the relevant period of accident). However, the learned Tribunal reduced medical as well as conveyance allowances and thereafter fixed Rs.27,500/- as the monthly income. The learned counsel also submitted that Ext.A28 series M.A.C.A.No.1007 of 2014 4 statement of accounts maintained by the deceased in ING Vysya Bank for the period between 01.06.2006 to 1.12.2006 also was produced from the side of the petitioners to substantiate transfer of Rs.30,020/- per month starting from June, 2006 to December, 2006 as the monthly income of the deceased. 7. The learned counsel for the petitioners further relied on the decision of the Apex Court reported in _[2011(2) KLT 451],_ _**Sunil Sharma v. Bachitar Singh**_ to contend that salary includes House Rent Allowance, City Compensatory Allowance, Employees Provident Fund, Group Insurance Scheme and Medical allowances. This legal position is not in dispute. 8. The crucial question to be decided is as to whether the Tribunal is justified in fixing the monthly income of the deceased as Rs.27,500/- in the given case based on the evidence available. In this connection, I would like to observe that proof of a document as stipulated by the Evidence Act is by examining the author of the document after providing opportunity to other side to extract matters by cross examining its author regarding the credibility of the document. In this case, admittedly Ext.A26 is not proved by examining its author. It is true that M.A.C.A.No.1007 of 2014 5 the case on hand is pertaining to a social welfare legislation and the intention of the legislature is to provide adequate and just compensation to the victim or the dependents or the legal heirs as the case may be, so as to facilitate their livelihood. In such a case evidence in toto required to be scrutinised to arrive just decision. In this context, Ext.A28 is relevant. Ext.A28 is the bank statement of the deceased for 6 months just before his death, exactly between 1.6.2006 and 1.12.2006. It appears that except for the months of September and October, salary to the tune of Rs.30,020/- was credited to the account of the deceased though some deductions could be gathered for the months of September and October. If reliance is given to Ext.A28, the same would go to show that the deceased had salary of Rs.30,020/- during the relevant period. So on reading the available materials in toto, what could be inferred is that the income fixed by the Tribunal @ Rs.27,500/- need not be disturbed as the same is reasonable. Therefore, the contention of the learned counsel for the insurance company disputing the monthly income cannot be accepted. 9. The other contention raised by the learned counsel for the insurance company is that as against the principle settled in _**National**_ M.A.C.A.No.1007 of 2014 6 _**Insurance Company Limited v. Pranay Sethi and Ors.**_ [(2017) 16 SCC 680], 50% addition was granted to the income and the amount ought to be 40%. This legal position is not disputed by the learned counsel for the petitioners also. In view of the matter, I am inclined to reduce the addition from 50% to 40%. Thereby the income for the purpose of calculating loss of dependency to be reduced as Rs.38,500/-. 10% required to be deducted towards income tax. Hence the monthly income to be taken for calculating the loss of dependency income is : 38500 – 3850 = Rs.34,650/-. So the dependency income is recalculated as : 34650X12X16X3/4 = 49,89,600/-. Hence the dependency income calculated is reduced to Rs.49,89,600/instead of Rs.53,46,048/-. 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. 10. Coming to loss of consortium, in fact following the ratio in M.A.C.A.No.1007 of 2014 7 _**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.1,60,000/-. Therefore, the compensation under the head **loss of consortium is increased to Rs.1,60,000/- from Rs.1 lakh** . 11. Coming to the other challenge, it is submitted by the learned counsel for the insurance company that towards funeral expense, 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 M.A.C.A.No.1007 of 2014 8 _**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 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. 12. Thus the amount entitled would come to Rs.51,89,600/- as shown below: |Sl.No.|Head of claim|Amount awarded by<br>the Tribunal<br>(Rs.)|Amount modified<br>by this Court<br>(Rs.)| |---|---|---|---| |1|Pain and sufferings|Nil|Nil| |2|Loss of income for the family|53,46,048.00|49,89,600.00| |3|Loss of love, affection,<br>companionship, guidance and<br>securityto thepetitioners|1,00,000.00|nil| |4|Loss of consortium|1,00,000.00|1,60,000.00| |5|Transport to hospital||10000| M.A.C.A.No.1007 of 2014 9 |6|Funeral Expenses|25,000.00|15000| |---|---|---|---| |7|Loss of estate|Nil|15000| ||||| ||Total|**55,71,048.00**|**5189600**| So the award is modified and a sum of Rs.51,89,600/- is granted. ## 13. In the result: a) This M.A.C.A is allowed in part. b) Modified award passed to the tune of _**Rs.51,89,600/-**_ _**(Rupees Fifty one lakh eighty nine thousand six hundred only)**_ to be paid by the 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/