Vijayamma Pulithitta Thekkethil (Vijaya Bhavanam) v. Sasikumar @ Sasi and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ## **`TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945`** ## **`MACA NO. 880 OF 2015`** ``` AGAINST THE COMMON AWARD DATED 20.08.2014 IN OP(MV) 214/2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA. ``` ## **`APPELLANT/PETITIONERS:`** ``` 1VIJAYAMMA PULITHITTA THEKKETHIL (VIJAYA BHAVANAM), VEDARAPLAVU P.O., CHARUMMOODU. ``` ``` 2VINOD PULITHITTA THEKKETHIL (VIJAYA BHAVANAM), VEDARAPLAVU P.O., CHARUMMOODU. ``` ``` 3BINDHU PULITHITTA THEKKETHIL (VIJAYA BHAVANAM), VEDARAPLAVU P.O., CHARUMMOODU. ``` ``` BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SEBASTIAN PARVATHY NAIR A.R.DILEEP ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SASIKUMAR @ SASI VALIYAKUDIVILAYIL DEVI MANDIRAM, NEAR VELLAYANI TEMPLE, VELLAYANI, KALLIYOOR, NOW RESIDING AT TC 25/379, EAST THAMPANOOR, THIRUVANANTHAPURAM - 695 014. ``` ``` 2AJITHKUMAR T K TC NO. 28/2897 (I), PAVITHRAM, CHETTIKULANGARA, THIRUVANANTHAPURAM - 690 106. 3THE NEW INDIA ASSURANCE CO LTD REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA - 688 001. ``` ``` MACA NO. 880 OF 2015 ``` ``` 2 ``` - `4 AJIKUMAR AJI BHAVANAM, CHATHIYARA, THAMARAKKULAM P.O. - 690 530.` - `5 NATIONAL INSURANCE CO. LTD REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, ALAPPUZHA - 688 001.` - `6 ROHINI KUTTIYAMMA AGED 63, NEDIYAVILAYIL, VEDARAPLAVU, CHARUMOODU, ALAPPUZHA - 690 505.` - `7 JANARDHARAN NAIR AGED 65, NEDIYAVILAYIL, VEDARAPLAVU, CHARUMOODU, ALAPPUZHA - 690 505.` - `8 MANOJKUMAR AGED 32, B/O.DECEASED VINOD, NEDIYAVILAYIL, VEDARAPLAVU, CHARUMOODU, ALAPPUZHA - 690 505.` ``` BY ADVS. SRI.N.S.NAJEEB SRI.P.JACOB MATHEW SRI.VINCENT JOSEPH SRI.P.JACOB MATHEW SRI.N.S.NAJEEB SRI.VINCENT JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 880 OF 2015 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.214/2008 on the files of the Additional Motor Accident Claims Tribunal, Alappuzha. The said claim petition was submitted by the appellants seeking compensation for the death of one Vijayakumar due to the injuries sustained in a motor accident that occurred on 30.11.2007. The accident occurred when the car in which the deceased was travelling, collided with a tanker lorry bearing Registration No.KL 01/AA 9300. The lorry was being driven by the 1[st] respondent. The 2[nd] respondent was the owner of the lorry and it was insured with the 3[rd] respondent. The driver of the car died due to the injuries sustained in the accident and respondents 6 to 8 are the legal heirs of the said person. The 4[th] respondent was the owner of the car and it was insured with the 5[th] respondent. 2. The deceased was aged 30 years at the time of the accident, and was working as a J.C.B. driver in M/S. Mirak Irrigation & Landscape at U.A.E. The monthly income claimed as Rs.40,000/-. ``` MACA NO. 880 OF 2015 ``` ``` 4 ``` 3. The 3[rd] and 5[th] respondent Insurance Companies have filed written statements admitting the coverage of the policy over the respective the vehicles. However, they denied the negligence and also the quantum of compensation. The said claim petition was tried along with two other claim petitions which arose from the very same accident. 4. The evidence in this case consists of Exts.A1 to A24 from the side of the claimants and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence of both the drivers and the liability was apportioned among them equally. Being the insurers of the said vehicle, the liability to pay the compensation was imposed upon the 3[rd] and 5[th] respondents insurance companies in equal proportion. The quantum of compensation was fixed as Rs.6,99,600/- and the said amount was directed to be deposited by both the Insurance Companies equally with interest @ 7.5% per annum from the date of petition till realisation and with proportionate cost. This appeal is submitted by the appellants in such circumstances seeking ``` MACA NO. 880 OF 2015 ``` ``` 5 ``` enhancement of compensation. 5. Heard Sri.George Varghese Perumpallikuttiyil, learned counsel appearing for the appellants, Sri.N.S. Najeeb, learned counsel appearing for the 3[rd] respondent and Sri.P.Jacob Mathew, learned counsel appearing for the 5[th] respondent Insurance Company. 6. The learned counsel for the appellants mainly highlights the inadequacy of compensation under various heads, particularly, under the head of loss of dependency. According to him, the monthly income taken by the Tribunal was only Rs.4,000/- which is grossly inadequate. The learned counsels appearing for the Insurance companies would oppose the said contention by pointing out that, even though the appellants produced several documents to substantiate the monthly income, none of the said documents were proved in a proper manner. Therefore, the Tribunal has adopted the monthly income as per the Indian Standards prevailing at the relevant time. Therefore, as the same is reasonable, no interference is required, points out the learned counsels for the Insurance Companies. ``` MACA NO. 880 OF 2015 ``` ``` 6 ``` 7. I have carefully gone through the records. To substantiate the monthly income, the appellants are mainly relying upon Ext.A15 passport, Ext.A16 driving license, Ext.A17 salary certificate and Ext.A18 series, which are the receipts evidencing the transfer of certain amounts showing the crediting of certain amounts in the accounts of the deceased as well as the mother of the deceased. As far as Ext.A15 passport is concerned, it can be seen that he was holding a visa issued on 22.03.2004, which was valid till 21.03.2007. Later, an entry relating to the visa cancellation was seen entered into the passport. Another entry in the passport would indicate that he arrived at Trivandrum Airport on 17.07.2007. It is to be noted that the accident in this case occurred on 30.11.2007. Ext.A16 is the driving license, which would indicate that, besides the driving license issued in the State of Kerala, he was also holding a driving license issued by the United Arab Emirates. As per the same, he was authorized to handle vehicle included in Serial Nos.7 and 8. The learned counsel for the appellants produced the documents to substantiate that serial No.7 referred to in the certificate relates to ``` MACA NO. 880 OF 2015 ``` ``` 7 ``` the forklifts and other similar equipment. Thus, from the aforesaid materials, it is evident that the deceased was working as a driver abroad with a valid visa. In Ext.A17, a salary certificate, the monthly salary shown was Dhs.4,000/-, which was equivalent to Rs.40000/-. But, the perusal of the same would indicate that the said certificate does not have any attestation from the Embassy. In the absence of any authentication concerning the contents of the same, the figure mentioned therein as such cannot be accepted. However, the crucial aspect to be noticed that, the entries in the passport relating to the visa and the Ext.A16 driving license would certainly establish the claim of the appellants regarding the avocation of the deceased as a driver of J.C.B. The learned counsel for the appellants places reliance upon the decision rendered by the Court in **Manusha Sreekumar v. United India Insurance Co. Ltd., 2022 SCC OnLine SC 1441,** wherein the Honourable Supreme Court was pleased to take the monthly income of a driver by placing reliance upon the notification issued by the Government of Kerala under the provisions of the Kerala Motor Transport Workers’ Payment of Fair Wages Act, 1971, as ``` MACA NO. 880 OF 2015 ``` ``` 8 ``` Rs.15,600/- in respect of the year 2015. After considering the materials placed on record, I find that, even though the figure as reflected in Ext.A17 salary certificate as such cannot be applied, the monthly income of the deceased can be fixed by taking note of the income taken by the Honourable Supreme Court in **Manusha Sreekumar’s** case. This is particularly necessary, in view of the settled position of law that, in cases where ample evidence are not available to prove the income, which the deceased was drawing abroad, the same has to be calculated by adopting the Indian standards. In this case, the accident occurred in the year 2007. Therefore, for assessing the probable monthly income as per the Indian standards, the income for the year 2015 as revealed from the notification referred to in **Manusha Sreekumar,** should be considered, with a reduction of Rs.500/- per year. Thus, while assessing the monthly income in the manner as mentioned above, the amount pertaining to the year 2007 would come to Rs.11,600/-. Therefore, the same can be accepted as the probable monthly income in this case in the absence of any better evidence. ``` MACA NO. 880 OF 2015 ``` ``` 9 ``` 8. The deceased was 30 years at the time of the accident and the appellants are the mother and siblings. Among them, only the mother can be treated as a dependent for the purpose of assessment of compensation for loss of dependency and hence the deduction to be made towards future expenses should be 50%. Thus, while reassessing the compensation with the above revised criteria, the amount of compensation for loss of dependency would come to Rs.17,53,920/- [(11,600 + 40%) x 12 x 18 x 1/2]. The amount already awarded by the Tribunal is Rs.5,61,600/- and thus the additional amount would come to Rs.11,92,320/-. 9. The other head which requires consideration is loss of estate. No amount was seen awarded by the Tribunal whereas the entitlement of the appellants in this regard is Rs.15,000/- in the light of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Therefore, the said amount is awarded. 10. At this juncture, the learned counsels appearing for the Insurance Companies would point out that, the Tribunal has awarded an amount of Rs.1,00,000/- towards love and affection, whereas the actual entitlement is confined to Rs.40,000/- under ``` MACA NO. 880 OF 2015 ``` ``` 10 ``` the head of consortium to the 1[st] appellant. The same has to be accepted in the light of the observations made in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760]. Therefore, after adjusting Rs.40,000/-, to be awarded under the head of loss of consortium, an amount of Rs.60,000/- is found to be the excess compensation which needs to be deducted. It is ordered accordingly. Similarly, under the head of funeral expenses, an amount of Rs.25,000/- is awarded by the Tribunal, whereas the actual amount should have been Rs.15,000/- only. Thus, a further deduction of Rs.10,000/- is to be made. 11. Accordingly, the total additional compensation receivable by the appellants is determined as Rs.11,37,320/[(1192320 + 15,000) – (60,000 + 10,000). In the light of the aforesaid observations and findings this appeal is allowed. The award dated 20.08.2014 in O.P.(M.V.) No.214/2008 passed by the additional Motor Accident Claims Tribunal, Alappuzha is hereby modified by awarding a further sum of Rs.11,37,320/- (Rupees eleven lakhs thrity seven thousand ``` MACA NO. 880 OF 2015 ``` ``` 11 ``` three hundred and twenty only) and the 3[rd] rand 5[th] respondents Companies shall deposit the said amount in equal proportion with interest at the rate as ordered by the Tribunal and with the proportionate cost within a period of three months from the date of receipt of a copy of this judgment. ## **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs The Judgment dated 12/12/2023 in MACA 880/2015 is modified in the following manner, as per order dated 28/05/2024 in IA 1/2024 in MACA 880/2015: i) The figures shown as "Rs.17,53,920/- (11,600 + 40% x 12 x 18 x 1/2)" at paragraph 8 are substituted as "Rs.16,56,480/- [11,600 + 40% x 12 x 17 x1/2]". ii) The figures shown as "Rs.11,92,320/-" in the last sentence of the 8th paragraph of the judgment are substituted as "Rs.10,94,880/-". iii) The figures shown as "Rs.11,37,320/- [(1192320+15,000) - (60,000+10,000)]" in paragraph 11 of the judgment are substituted as "Rs.10,39,880/- [(1094880+15000) - (60,000+10,000)]. iv) The figure and words shown as "Rs. 11,37,320/- (Rupees eleven lakhs thirty seven thousand three hundred and twenty) in the operative portion of the judgment are substituted as "Rs.10,39,880/- (Rupees ten lakhs thirty nine thousand eight hundred and eighty only)". **Sd/JOINT REGISTRAR**