The Oriental Insurance Company Limited v. Princy Ninan and Others (MACA No. 2336 of 2016; CO No. 108 of 2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 ``` ``` MACA NO. 2336 OF 2016 ``` ``` AGAINST THE AWARD OPMV 885/2008 OF ADDITIONAL DISTRICT COURT ``` ``` & SESSIONS COURT - III, PATHANAMTHITTA / III ADDITIONAL MACT APPELLANT/3RD RESPONDENT: ``` ``` THE ORIENTAL INSURANCE COMPANY LIMITED THIRUVALLA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR ``` ## **`RESPONDENTS/PETITIONERS:`** - `1 PRINCY NINAN W/O.NINAN THOMAS, EZHIKAKATHU HOUSE, KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PIN-689 614.` - `2 PRIGIN NINAN THOMAS S/O.NINAN THOMAS, EZHIKAKATHU HOUSE, KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PIN-689 614.` - `3 PRAICY NINAN THOMAS MINOR S/O.NINA THOMAS, EZHIKAKATHU HOUSE, KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PIN-689 614.REPRESENTED BY HIS MOTHER 1ST RESPONDENT.` - `4 RECHAL THOMAS W/O.THOMAS NINAN, EZHIKAKATHU HOUSE, KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PIN-689 614. BY ADVS.SRI.ARUN.B.VARGHESE SRI.LALU JOHN SRI.R.SANJAY SANKAR` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 05.12.2022, ALONG WITH CO.108/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2336 of 2016 & co 108 of 2022 **2** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY,THE 5[TH] DAY OF DECEMBER 2022 /14TH AGRAHAYANA, 1944 CO NO. 108 OF 2022 ``` ``` AGAINST THE AWARD OPMV 885/2008 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, PATHANAMTHITTA / III ADDITIONAL MACT ``` ## **`PETITIONERS/RESPONDENTS 1 TO 4:`** ``` 1PRINCY NINAN AGED 50 YEARS, W/0 NINAN THOMAS EZHIKAKATHU HOUSE, KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PATHANAMTHITTA, PIN - 689614 2PRIGIN NINAN THOMAS AGED 29 YEARS, S/0 NINAN THOMAS EZHIKAKATHU HOUSE , KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PATHANAMTHITTA, PIN - 689614 3PRAICY NINAN THOMAS AGED 21 YEARS, D/0 NINAN THOMAS EZHIKAKATHU HOUSE , KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PATHANAMTHITTA, PIN - 689614 4RECHAL THOMAS AGED 75 YEARS, W/0 THOMAS NINAN EZHIKAKATHU HOUSE, KOTTATHOOR PO, AYROOR VILLAGE, RANNY TALUK, PATHANAMTHITTA, PIN - 689614 BY ADVS.ARUN.B.VARGHESE AISWARYA V.S. ``` ## **`RESPONDENT/APPELLANT:`** ``` ORIENTAL INSURANCE CO.LTD, ``` MACA No.2336 of 2016 & co 108 of 2022 **3** ``` REPRESENTED BY THE ASSISTANT MANAGER REGIONAL OFFICE,METRO PALACE, MG ROAD,KOCHI, PIN - 682036 SR.ADV.MATHEWS JACOB SMT.PREETHY R.NAIR ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2022, ALONG WITH MACA.2336/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2336 of 2016 & co 108 of 2022 **4** ## **P.V.KUNHIKRISHNAN, J.** ## **-------------------------------M.A.C.A.No.2336 of 2016 & C.O.No.108 of 2022 ---------------------------------------------Dated this the 05[th] day of December, 2022** ## **JUDGMENT** The appeal and cross objection are filed against the award dated 19.04.2016 in O.P.(MV) No.885 of 2008 on the file of the Additional District Judge & Motor Accidents Claims Tribunal-III, Pathanamthitta. The appellant is the 3[rd] respondent in O.P.(MV) No.885 of 2008. The cross objection is filed by the claimants in the above case. (Parties are hereinafter mentioned in accordance to their rank before the Tribunal.) 2. Brief facts are like this: On 24.12.2007 at 2.15 pm in Kottayam – Kumali Public Road near at 34 miles, while one Ninan Thomas and others were travelling in a Bolero jeep bearing registration No.KL03/Q-5363, struck by a mini lorry bearing registration No.TN-59/AF-3039 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In MACA No.2336 of 2016 & co 108 of 2022 **5** the accident, Ninan Thomas died and the claimants are his mother, wife and children. 3. Before the Tribunal Exts.A1 to A33 were marked on the side of the claimants. No document or evidence is adduced by the respondents. Based on the pleadings and documents, the Tribunal found that the 1[st] respondent is responsible for the accident and fixed a total compensation of Rs.25,85,500/- with interest at the rate of 9% per annum from the date of petition. The 3[rd] respondent was directed to pay the amount. Aggrieved by the quantum of compensation, the 3[rd] respondent insurance company filed M.A.C.A.No.2336 of 2016 and aggrieved by the insufficiency of compensation, the claimants filed C.O.No.108 of 2022. 4. Heard the learned Senior Counsel Sri.Mathews Jacob, as instructed by Smt.Preethy R.Nair, who appeared for the appellant in M.A.C.A.No.2336 of 2016. I also heard the learned counsel for the cross objectors. 5. The Senior Counsel for the 3[rd] respondent insurance company submitted that the Tribunal fixed the MACA No.2336 of 2016 & co 108 of 2022 **6** monthly income of the deceased as Rs.15,000/- without any evidence. The Senior Counsel further submitted that simply because the deceased was working in Gulf countries, in the light of the decision reported in **Valsamma and Another v. Binu Jose and Others [2014 (1) KLT 10]** , the Tribunal erred in fixing the income of the deceased notionally as Rs.15,000/-. The Senior Counsel also submitted that towards loss of estate, the compensation given by the Tribunal is Rs.25,000/- and as per the judgment of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , only an amount of Rs.15,000/is eligible. Similarly, for funeral expenses also, the maximum amount that can be awarded is only 15,000/-, and the amount granted by the Tribunal is on a higher side. It is also submitted that after granting Rs.1,00,000/- for loss of consortium, the Tribunal erred in awarding separate compensation for loss of love and affection. 6. On the other hand, the counsel for the claimants submitted that there is nothing to interfere with the MACA No.2336 of 2016 & co 108 of 2022 **7** monthly income of the deceased fixed by the Tribunal. The counsel submitted that the deceased was an AC Mechanic and the Tribunal fixed the monthly income as Rs.15,000/based on the facts and circumstances of the case. It is also submitted that the passport and bank statement were also produced before the Tribunal to show that the deceased was getting income from Gulf countries. The counsel further submitted that there are four claimants and therefore, they are entitled Rs.40,000/- each towards loss of consortium in the light of the decision reported in **Pranay Sethi’s case** (Supra). 7. This Court considered the contentions of the appellant and the cross objectors. It is an admitted fact that Ext.A11 salary certificate was not accepted by the Tribunal because there is no evidence to prove the same. As per Ext.A11, the salary shown is 4500 Riyals. That certificate was not accepted. But the Tribunal fixed an amount of Rs.15,000/- as monthly income because the deceased was an AC Mechanic. It is true that this Court in MACA No.2336 of 2016 & co 108 of 2022 **8** ## paragraph 11 of the judgment reported in **Valsamma’s case** (supra) observed like this: 11. The case of the appellants is that the deceased was aged 29 years and working as spray painter in Oman and getting Rs.20,000/- per month. In order to prove the same, they have produced Ext.A5 agreement entered into between the deceased with one Bahwan Automotive Centre, Sultanate of Oman dated 15.05.2001, a labour card Ext.A7 and Ext.A8 passport. But, these documents were not proved in accordance with law. The executant of Ext.A6 was not examined to prove the contents of the same. The passport entry will go to show that he is having visa upto 25.03.2005 and the accident in this case occurred on 18.09.2004. So, those documents are not sufficient to prove that he is having so much income there. It may be mentioned here that employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a government service there. If he is a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to the dependents of the victim on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such MACA No.2336 of 2016 & co 108 of 2022 **9** circumstances, we will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon. So, the Tribunal was perfectly justified in not relying on the document produced and the income alleged to have been derived by the deceased at Oman for the purpose of considering the compensation payable on his death. 8. But in this case the insurance company has not adduced any evidence. The claimants produced Ext.A11 salary certificate, Ext.A12 passport and Ext.A17 bank statement. There is no contra evidence to disbelieve the case of the claimants. Considering all the documents, the Tribunal fixed Rs.15,000/- as monthly income of the deceased. It is also to be considered that the deceased was an AC Mechanic. In such circumstances, according to me, the monthly income fixed by the Tribunal need not be interfered. 9. The Tribunal granted 30% enhancement towards MACA No.2336 of 2016 & co 108 of 2022 **10** future prospects. In the light of the law laid down in **Pranay Sethi’s case** (Supra), only 25% enhancement is possible because the age of the deceased was 44 years at the time of accident. Then the monthly income can be safely fixed as Rs.18,750/- (15,000 + 3,750). The cross objectors submitted that, since the deceased was aged 44 years with a family consisting of 4 dependents, only ¼[th] of his notional monthly income is to be deducted towards the personal and living expenses. I think there is some force in the argument in the light of the decision reported in **Pranay Sethi’s case** (Supra). Therefore compensation for loss of dependency is to be recalculated in the following manner: (18,750 x 12 x 14 x ¾) = 23,62,500/- 10. As far as loss of estate is concerned, the Tribunal erred in fixing an amount of Rs.25,000/- because as per **Pranay Sethi’s case** (Supra), only Rs.15,000/- is entitled by the claimants. Similarly towards funeral expenses, the claimants are entitled only for an amount of Rs.15,000/-. As far as the compensation awarded towards love and MACA No.2336 of 2016 & co 108 of 2022 **11** affection, the claimants are not entitled for any amount in the light of the fact that compensation is already granted towards loss of consortium. Since there are four claimants, the claimants are entitled for Rs.40,000/- each towards loss of consortium in the light of **Pranay Sethi’s case** (Supra). 11. Therefore, the total compensation amount entitled by the claimants are summarized as follows: Loss of dependency : 23,62,500/Loss of Estate : 15,000/Transport to hospital : 1,500/Funeral expenses : 15,000/Loss of consortium : 1,60,000/------------------------ ## **25,54,000/-** ========== In the result, M.A.C.A.No.2336 of 2016 and C.O. No.108 of 2022 are allowed in part. The impugned award is modified. The claimants/cross objectors are entitled for a total amount of Rs.25,54,000/- which will carry interest at the rate of 7.5% per annum from the date of petition till realisation. The 3[rd] respondent/Insurer will deposit the MACA No.2336 of 2016 & co 108 of 2022 **12** balance amount after deducting the amount already deposited within 3 months from the date of receipt of a copy of this award. Apportionment of the award amount between the claimants will be as directed by the Tribunal in the impugned award. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV