Vimalkumar and others v. Sajeevan, Shibu P.R. and United India Insurance Company Limited

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 22[nd] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943 ## MACA NO. 1736 OF 2017 AGAINST THE AWARD DATED 8.12.2016 IN OP(MV) No. 421/2015 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM ## APPELLANTS/PETITIONERS: - 1 VIMALKUMAR,S/O. NARAYANAN NAIR, KALAPPURAYIL HOUSE, PAMPAKUDA MEMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686667. - 2 SHYLAJA,W/O. VIMALKUMAR, KALAPPURAYIL HOUSE, PAMPAKUDA, MEMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT686667. - 3 SREELAXMI,D/O. VIMALKUMAR, KALAPPURAYIL HOUSE, PAMPAKUDA, MEMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686667. BY ADVS. SRI.T.K.KOSHY SRI.ANIL GEORGE ## RESPONDENTS/RESPONDENTS 1 TO 3: - 1 SAJEEVAN,S/O. RAMAKRISHNAN NAIR, THATTAYAT HOUSE, CHERUVATTOOT P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT686691. - 2 SHIBU P.R.,S/O. RAMACHANDRAN, PALAMATTATHIL HOUSE, KUTTAMPUZHA, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT686691. - 3 UNITED INDIA INSURANCE COMPANY LIMITED, POST OFFICE JUNCTION, PIRAVOM, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664. R2 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2021, THE COURT ON 22.10.2021 DELIVERED THE FOLLOWING: MACA No.1736 of 2017 2 ## JUDGMENT This appeal is filed by the petitioners in OP(MV)No.421 of 2015 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The aforesaid claim petition was filed by them seeking compensation for the death of one Vishnu Prasad Vimal, the son of appellants 1 and 2 and the brother of the 3[rd] appellant. 2. According to the appellants, the death of the deceased was due to the injuries sustained by him in a motor accident occurred on 6.3.2015 when the motor cycle ridden by him was hit by a stage carriage driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. According to the appellants, the deceased was aged 24 years who had just completed his BDS course and was about to start his career as a Dentist. The monthly income claimed was Rs.50,000/-. It was also contended that all the appellants were depending upon the deceased and on that basis, a compensation of Rs.80 Lakhs was claimed. 3. The 1[st] and 2[nd] respondents who are the owner and the driver of the vehicle respectively did not enter appearance despite service of notice and accordingly, they were set ex-parte. The 3[rd] respondent-Insurance Company MACA No.1736 of 2017 3 filed a written statement alleging negligence on the part of the deceased himself. The quantum of compensation was seriously disputed, but however the policy and its coverage over the vehicle in question were admitted. 4. In order to substantiate the claim, the appellants have examined Pws. 1 and 2 and Exts.A1 to A10 were marked. From the side of the 3[rd] respondent Exts.B1 to B3 and Ext.X1 were marked. 5. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence of the 2[nd] respondent, the driver of the stage carriage and being the Insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.28,35,000/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition. This appeal is filed by the appellants being aggrieved by the quantum of compensation. 6. Heard the learned counsel for the appellants and the learned counsel for the 3[rd] respondent-Insurance Company. 7. The learned counsel for the appellants, while seeking enhancement of compensation, mainly raised three contentions. According to him, the monthly income taken by the Tribunal is Rs.25,000/- which is very low. He relies MACA No.1736 of 2017 4 on the evidence of PW2 who was a class-mate of the deceased, a practising Dentist with a monthly income of Rs.30,000/-. The learned counsel also seriously disputes the deduction of 50% on the ground that the Tribunal committed an error in holding that the 3[rd] appellant who is the sister of the deceased was not dependent upon him. Lastly, it was contended that the Tribunal committed an error in not making any addition towards future prospects. In support of his contentions, the learned counsel relies on the judgment reported in _V.Mekala v. M.Malathi and Anr. [(2014)11 SCC 178], Kirti and Anr. v. Oriential Insurance Company Ltd. [(2021)2 SCC 166], Manjuri Bera (Smt.) v. Oriental Insurance Company Ltd. & Anr. [(2007)10 SCC 643], United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (AIR 2020 SC 3076), National Insurance Company Ltd. v. Birender and Others [2020(2)KLT 182], Arvind Kumar Mishra v. New India Assurance Company Ltd.Anr. [(2010)10 SCC 254], National Insurance Company Ltd. Chennai v. Fathimath Zuhara @ Zuhra Razak and Anr. [2016 (3) KLT 459], Nagar Mal and Others v. Oriental Insurance Company Ltd. & Ors. [(2018)3 SCC 130] and Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma and Anr. [(2015)2 SCC 180]._ 8. The first contention raised is regarding the monthly income of the deceased. The evidence adduced in MACA No.1736 of 2017 5 this case would reveal that, at the time of the accident, the deceased had just completed his studies and was about to commence his practice as a Dentist. Even though at the relevant time he has not started earning anything, in order to prove the probable income that could have been earned by him, had he been alive, the evidence of PW2 was relied on. PW2 is a practising Dentist and was a classmate of the deceased. According to her, she was getting a monthly income of Rs.30,000/- from her practice. The Tribunal, however, did not rely upon the said evidence mainly on the ground that she was practising along with her husband who had already established a dental clinic on his own six years ago. In such circumstances, the Tribunal took note of the fact that the income earned by PW2 cannot be taken as a criteria as far as the probable income of the deceased is concerned, as he was about to start his career, whereas PW2 had got the opportunity to be part of an already established dental clinic, that too run by her husband. 9. In order to substantiate the contention as to the monthly income, the learned counsel relies on various judgments. In _Arvind Kumar Mishra’s_ case (supra), the Hon'ble Supreme Court was pleased to take the monthly income of an engineering student as Rs.5,000/- in respect of an accident occurred in the year, 1993. In _Nagar Mal’s_ MACA No.1736 of 2017 6 case (supra), the Hon'ble Supreme Court took Rs.15,000/as the monthly income of a student of C.A.course in respect of an accident occurred in the year, 2008. In _V. Mekala's_ case (supra) the monthly income fixed by the Hon'ble Supreme Court was Rs.10,000/- for an 11[th] standard student. _Ashvinbhai Jayantilal Modi’s_ case(supra), the monthly income fixed by the Hon'ble Supreme Court was Rs.25,000/- for an MBBS student in respect of an accident occurred in the year, 2002. In _Fathimath Zuhara’s_ case (supra), a Division Bench of this Court was pleased to fix the monthly income as Rs.12,000/- in respect of an engineering student where the accident occurred was in the year 2012. A careful perusal of the aforementioned judgments would reveal that, the fixation of monthly income was done based on the evidence adduced in those cases and also taking into the peculiar economic situations existed therein. In this case, when we consider the materials on record, it can be seen that the only evidence available is that of PW2. The observations made by the Tribunal as to the non-applicability of her income to decide this issue in this case, appears to be reasonable and probable. Apart from the above, I am of the view that the same cannot be relied upon for some other reasons as well. First of all, the deceased has not commenced his career and in order to establish a dental MACA No.1736 of 2017 7 clinic, he has to invest amounts. Secondly, practise as a Dentist is a profession and the income earned from the same is depending upon various factors including his professional capacity, which varies from person to person. As the potential earning capacity of each professional varies from person to person, income earned by one professional cannot be treated as a bench mark for determining the income of any other professional in the same category. In this case, the Tribunal, after considering the educational qualification of the deceased fixed an amount of Rs.25,000/- as monthly income which according to me is very reasonable. This is particularly because the said amount is not substantially lower than the monthly income earned by PW2, who had certain marked advantages in her profession, such as, her spouse is an established Dentist and she joined in an established Dental clinic along with him. In such circumstances, I do not think that, the monthly income fixed by the Tribunal requires any re-consideration and accordingly I confirm the same. 10. Next contention is the deduction made by the Tribunal towards the personal expenses of the deceased which was 50%. The learned counsel for the appellants would contend that, in this case, all the appellants including the 3[rd] respondent sister were dependents of the MACA No.1736 of 2017 8 deceased as their entire aspirations were upon the deceased who could have had a bright future as a Dentist. In support of this contention, the learned counsel relies on _Manjuri Bera’s_ case (supra) and _Birender’s_ case (supra). However, I am of the view that the aforesaid judgments are not applicable to the facts of this case. Both the said cases dealt with the question of dependency of married daughter and married son respectively, upon the deceased parent. In this case, as rightly observed by the Tribunal, as on the date of the accident, the deceased was depending upon the appellants 1 and 2 who are the parents. The dependency of the 3[rd] appellant upon the deceased cannot be accepted as on the date of the accident, as evidently the deceased was not an earning member of the family. It is also a relevant factor that he was aged 24 years at the time of accident and was expected to marry within few years. Similarly, the 3[rd] appellant who was aged 20 years would have been given her marriage in immediate future. In view of the above probable and possible contingencies, it cannot be concluded that the 3[rd] appellant was a dependent upon the deceased. With regard to the dependency of the parents of the deceased, the Hon'ble Supreme Court specifically considered the said question in _Satwinder Kaur_ (supra) and in paragraph 8, it was observed as follows: MACA No.1736 of 2017 9 _“Thus, even if the deceased was survived by parents and siblings, only the mother would be considered to be a dependent. The deduciton towards personal expenses of a bachelor would be 50%, and 50% would be the contribution to the family._ _*However, in a case where the family of a bachelor was large and dependent on the income of the deceased, as in a case where he had a widowed mother, and a large number of younger non earning sisters or brothers, his personal and living expenses could be restricted to 1/3rd, and contribution to the family be taken as 2/3rd.”_ 11. When we analyse the facts of this case, it can be seen that none of the circumstances mentioned by the Hon'ble Supreme Court in the above quoted observations are available. The parents of the deceased are young and apparently earning, which is evident from the fact that the deceased himself was dependent on them. There is no evidence that 3[rd] appellant sibling was a dependent upon the deceased. Thus, in the absence of any material showing any actual dependency of the appellants on the deceased, only the parents of the deceased can be treated as dependents, in such event, the deduction to be made is 50%. In such circumstances, the finding of the Tribunal in this regard does not suffer from any infirmity and hence it is also confirmed. MACA No.1736 of 2017 10 12. Next aspect is relating to the addition to be made towards future prospects. In this regard, the finding of the Tribunal is that, the fixation of the monthly income of the deceased being a speculative one, no addition needs to be made towards future prosects, as it would amount to speculation over speculation. In _Kirthi's_ case (supra), it was observed by the Hon'ble Supreme Court that, the argument that, no future prosects ought to be allowed for those with notional income is both incorrect in law and without merit considering the constant inflation induced increase in wages. In the said decision, the Hon'ble Supreme Court extracted the observations made in _Hem Raj v. Oriental Insurance Co.Ltd._ [(2018)15 SCC 654] which reads as follows: _“We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guess work in the facts and circumstances of a case. Both the situations, stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made.”_ 13. The above observations made by the Hon'ble Supreme Court makes it clear that even in respect of the monthly income fixed on the basis of guess work, future prospects of the deceased is to be taken into MACA No.1736 of 2017 11 consideration and appropriate addition should be made. In the light of the principles laid down in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], the proper addition in this regard is 40% for the persons aged below 40 years. In this case, the aforesaid principles are squarely applicable and I find no reason to deny the same to the appellants. This is particularly because here there is evidence indicating the completion of professional course by the deceased which is very lucrative in nature and the income is likely to grow as he attains more experience in his profession. In such circumstances, I am inclined to make an addition of 40% of the monthly income towards future prospects. 14. When we re-work the compensation for dependency on the basis of the same, the amount under this head comes to Rs.37,80,000/- (Rs.(25,000x40%)x12x18x50%). The Tribunal has already awarded an amount of Rs.27 Lakhs under this head and hence the balance amount comes to Rs.10,80,000/-. 15. The other head which requires re-consideration is loss of love and affection which comes to Rs.50,000/-. As per the principles laid down in Satwinder Kaur’s case (Supra), the parents shall be entitled for compensation for loss of filial consortium in respect of the death of MACA No.1736 of 2017 12 their son/daughter. It was also held in the said decision that, when compensation is granted for loss of consortium, no further amount needs to be granted for loss of love and affection. It was also held that the amount payable under the head of loss of filial consortium is Rs.40,000/- each to both the parents. In the light of the above, the 1[st] and 2[nd] appellants are entitled for Rs.40,000/- each towards loss of filial consortium. As no amounts needs to be granted under the head of loss of love and affection due to the reason mentioned above, the amount of Rs.50,000/- granted under the said head is set aside. However, considering the fact that, the 3[rd] appellant lost her sibling, some consideration has to be given to compensate her for the said loss. In _Satwinder Kaur’s_ case (supra), the main reason for not granting compensation for loss of love and affection was that, when compensation is granted under loss of consortium, that would take care of compensation under the head of loss of love and affection as well. However, in this case, as no compensation for loss of consortium is granted to the 3[rd] appellant, she is entitled for some amount for loss of love and affection. In the facts and circumstances, an amount of Rs.20,000/would be a reasonable amount and it is granted. MACA No.1736 of 2017 13 16. At this juncture, the learned counsel for the Insurance Company points out that, the amounts awarded under the heads of funeral expenses and loss of estate are excessive. As per the principles laid down in _Pranay Sethi's_ case (supra), the amounts payable under these heads are Rs.15,000/- each whereas amounts granted by the Tribunal is Rs.25,000/- each. In the light of the law declared by the Hon'ble Supreme Court, the amounts awarded by the Tribunal under funeral expenses and loss of estate are re-fixed as Rs.15,000/- each. 17. In such circumstances, the appeal is allowed in part, by awarding an additional amount of Rs.11,10,000/(Eleven lakhs and ten thousand only) [(10,80,000+ 80,000+20,000)-(50,000+20,000)], to the appellants as compensation, and the said amount shall be deposited by the 3[rd] respondent Insurance Company along with interest at the rate of 9% per annum from the date of petition till realisation. The 3[rd] appellant shall be entitled for Rs.20,000/- out of the total amount of compensation, along with the interest accrued thereon. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk