The Shriram General Insurance Company Ltd. v. A.K. Sindhu and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939 MACA.No. 56 of 2014 () ----------------------- AGAINST THE AWARD IN OPMV 736/2010 of M.A.C.T., THALASSERY APPELLANT(S)/3RD RESPONDENT: --------------------------- THE SHRIRAM GENERAL INSURANCE COMPANY LTD. NO.10003 E8, EPIP, RLICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN 302022 REP. BY THE AUTHORISED SIGNATORY. BY ADV. SRI.RAJAN P.KALIYATH ## RESPONDENT(S)/CLAIMANTS: - ------------------------ 1. A.K.SINDHU - D/O.BALAN, MALLIKA TEXTILES, POST EACHUR, KANNUR DISTRICT. 2. NAMITHA , - (MINOR), D/O.ANIL KUMAR, REP. BY MOTHER SINDHU, MALLIKA TEXTILES, POST EACHUR, KANNUR. 3. NAVNEETH P - (MINOR) S/O.ANIL KUMAR, REP. -DO- 4. SHANTHA O. - D/O.KRISHNAN, MALLIKA TEXTILES, POST EACHUR, KANNUR DISTRICT. R4 BY ADV. SRI..ABRAHAM K.JOHN (CAVEATOR) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2017, ALONG WITH CO. 107/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ. ----------------------------------------------MACA. No.56/2014 & Cross Objection 107/2017 ----------------------------------------------Dated this the 9[th] day of October, 2017 ## JUDGMENT ## Abdul Rehim,J. Appellant herein is the 3[rd] respondent and the cross objectors are claimant Nos.1 to 3 in OP(MV).No.736/2013 on the files of the MACT, Thalassery. A person named Anil Kumar died in a motor vehicle accident which occurred on 14.7.2010, when a lorry hit against the motor cycle on which he was riding. In the present appeal or in the cross objection, there is no dispute with respect to the findings of the Tribunal on the aspects of the negligence and the liability on the part of the appellant. The appellant had preferred this appeal raising a main contention that, the Tribunal went erred in adding 30% of the income towards future prospects. The cross objectors, who are the wife and two children of the deceased, contended that the MACA.56/2014 & Cross Objection 107/2017 2 amount awarded is inadequate and insufficient. Their main contention is that the notional income fixed by the Tribunal is inadequate and insufficient. Further it is contended that the amounts awarded under different heads like, loss of love and affection, loss of consortium etc. are on the lower side. 2. Heard; Advocate Rajan P.Kaliyath , Standing Counsel for the appellant insurance company and the Sri.Abraham K.John appearing for the respondents in the appeal and for the cross objectors who are respondents 1 to 3 in the appeal. The 4[th] claimant before the Tribunal who is the 4[th] respondent in this appeal, has not joined as a cross objector in the above cross objection. 3. Case of the claimants before the Tribunal was that, the deceased was a man aged 44 years and was doing business and was earning an income of Rs.15,000/- per month. But, as rightly observed by the Tribunal, nothing except the SSLC Book of the deceased was produced in order to prove his occupation or income. The Tribunal was not persuaded to accept the oral testimony of PW1 with MACA.56/2014 & Cross Objection 107/2017 3 respect to occupation or income of the deceased. The cross objectors have contended that, the Tribunal ought to have fixed a higher amount than Rs.5000/- towards notional income. We take note of the fact that the notional income adopted by the Tribunal is slightly on the lower side, taking into consideration of the socio-economic situations prevailed during the year 2010. Therefore we are inclined to refix the said amount at Rs.6000/-. Contention of the appellant insurance company is that, the addition of 30% made by the Tribunal towards future prospects cannot be sustained, because it was not proved before the Tribunal that the deceased was a self employed person or that he was earning a regular income out of any other avocation. The above contention was opposed by the learned counsel for the cross objectors. In **Santhosh Devi vs. National Insurance Company (2012 (6) SCC 421),** in paragraph 18 of the judgment, the hon'ble Supreme Court found that, the observations contained in the earlier decision of **Sarala Varma vs. Delhi Transport Corporation (2009) 6 SCC** MACA.56/2014 & Cross Objection 107/2017 4 **121** had never intended to lay down an absolute rule that there will be no addition in the case of a person who is self employed or who is having fixed wages. In **Santhosh's case** (supra) it was observed that, it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time, had he not the victim in the accident. Therefore the same formula mentioned in **Sarala Varma(supra)** deserves to be applied for calculating the amount of compensation. We are of the considered opinion that the dictum contained in **Santhosh's case (supra)** cannot be applied on the facts of the case at hand, because as already observed, there is no evidence to prove that the deceased was a self employed person or that he was earning a fixed wages. Therefore we are inclined to accept the contention of the appellant that 30% addition taken by the Tribunal towards future prospects cannot be sustained. 4. Based on the above findings we are inclined to rework the compensation awarded under the head of loss of MACA.56/2014 & Cross Objection 107/2017 5 dependency at Rs.7,56,000/- (6000 x 12 x 14 x ¾). This will reduce the quantum of compensation awarded under the above said head by a sum of Rs.63,000/-. 5. Learned counsel for the cross objectors contended that the amount of Rs.80,000/- awarded under the head of loss of love and affection is insufficient and inadequate. We take note of the fact that the Tribunal had allowed Rs.20,000/- each to all the 4 claimants under the head of loss of love and affection. Since separate compensation under the head of loss of consortium is awarded to the wife of the deceased, she may not be entitled for loss of love and affection. Since the mother of the deceased has not joined as a cross objector, we are not inclined to award any enhancement to the said claimant. We are of the opinion that the claimants 2 and 3, who are the children of the deceased can be awarded a sum of Rs.50,000/- each. Therefore those 2 claimants will be entitled for enhancement of the compensation by 30,000/- each. However the total enhancement on this count will be limited to Rs.20,000/-, MACA.56/2014 & Cross Objection 107/2017 6 making the total compensation awarded under the head of love and affection at Rs.1,00,000/-. Towards loss of consortium the Tribunal had awarded only a sum of Rs.50,000/-. We are inclined to increase the amount to Rs.1,00,000/-, which will entitle the cross objectors for an enhancement of Rs.50,000/-. Towards funeral expenses, the Tribunal had awarded a sum of Rs.20,000/- which we are inclined to add by a further sum of Rs.5000/-. We do not find any ground to interfere with the awards under other heads. Thus, after setting off the amount of reduction from the enhancement awarded (Rs.75,000 - 63,000) the cross objectors will be entitled for an enhancement of Rs.12,000/-. 6. The above appeal and cross objection are hereby disposed of by modifying the award to the extent as mentioned above and ordering payment of an additional sum of Rs.12,000/- to the cross objectors . The 1[st] cross objector /1[st] claimant shall be paid the enhanced amount. We do not propose to interfere with the apportionment MACA.56/2014 & Cross Objection 107/2017 7 made by the Tribunal with respect to the amounts already granted in the impugned award. The enhanced amount will carry interest at the same rate as ordered by the Tribunal, from the date of the claim petition till realisation. 7. The appellant insurance company shall deposit the additional amount along with interest due thereon, within a period of two months from the date of receipt of a copy of this judgment. The 1[st] respondent/1[st] cross objector will be entitled to approach the Tribunal seeking withdrawal of the amount if deposited and the Tribunal shall pass appropriate orders thereon. C.K.ABDUL REHIM, JUDGE ## K.P.JYOTHINDRANATH, JUDGE Pmn/ MACA.56/2014 & Cross Objection 107/2017 8