Sindhu vs K.A.Kabeer
2021 Latest Caselaw 13696 Ker

MACA No.1947 of 2017                   1


               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
         FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                          MACA NO. 1947 OF 2017
AGAINST THE AWARD IN OP(MV) NO.860/2009 DATED 30-09-2016 OF THE
              MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR
APPELLANTS:

     1       SINDHU
             AGED 46 YEARS
             W/O.LATE RAVI, RESIDING AT MEPPURATH
             HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT.

     2       JITHIN
             AGED 22 YEARS
             S/O.LATE RAVI, RESIDING AT MEPPURATH
             HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT.

     3       NITHIN
             AGED 19 YEARS
             S/O.LATE RAVI, RESIDING AT MEPPURATH
             HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT.

     4       VASU
             AGED 77 YEARS
             S/O.LATE KUTTAPPU, RESIDING AT MEPPURATH
             HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT.

     5       LEELA
             W/O.VASU, AGED 67 YEARS,RESIDING AT MEPPURATH
             HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT.

             BY ADVS.
             SRI.T.C.SURESH MENON
             SRI.P.S.APPU
             SRI.A.R.NIMOD



RESPONDENTS/RESPONDENTS:

     1       K.A.KABEER
 MACA No.1947 of 2017                        2


             S/O.ABDULLA, RESIDINGAT KUMMANKANDATHIL
             HOUSE,VADAKKUMMURI, P.O.PERINGOTTUKARA,THRISSUR
             DISTRICT, PIN: 680 565.

     2       SUNIL, S/O.SUBRAMANIAN
             RESIDING AT IKKANDAMPARAMBIL HOUSE,P.O.PULLU,
             ANTHIKKAD, THRISSUR DISTRICT, PIN: 680 641.

     3       THE ORIENTAL INSURANCE COMPANY LIMITED
             BRANCH THRISSUR - 680 001.

             BY ADV SRI.N.S.NAJEEB

             SMT.K.S.SANTHI FOR R3




      THIS   MOTOR     ACCIDENTS   CLAIMS   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No.1947 of 2017                                3




                                           JUDGMENT

This is an appeal submitted by the claimants seeking

enhancement of compensation.

2. The claim petition was filed by them seeking

compensation for the death of one Ravi, who was a tailor by

profession, due to the injuries sustained in a motor

accident on 23.02.2009. The appellants/claimants are the

wife, minor children and parents of the deceased. The

deceased was aged 42 at the time of accident and according

to the claimants, he was earning an amount of Rs.9,000/-

per month from his avocation. The total compensation

claimed was Rs.17,70,000/-.

3. The Insurance Company alone contested the matter.

They filed a written statement admitting the coverage of

policy of the vehicle in question but disputed the

liability on various other grounds. The evidence in this

case consists of Exts.A1 to A14 from the side of the

appellants. No evidence was adduced from the side of the

respondents.

4. After the trial, the Tribunal came to the

conclusion that, the accident occurred due to the

negligence of the driver of the vehicle involved in the

accident and respondents 1 to 3 were held liable to pay the

compensation. The quantum of compensation was fixed as

Rs.11,21,000/- and the 3rd respondent-Insurance Company was

directed to deposit the said amount along with interest at

the rate of 9% per annum. Being dissatisfied with the

quantum of compensation, this appeal is filed.

5. Heard the learned counsel for the appellants and

the learned counsel for the Insurance Company.

6. It is contended on behalf of the appellants that,

the monthly income taken by the Tribunal is on lower side.

Even though the deceased was earning an amount of

Rs.10,000/- which was sought to be substantiated by

production of Ext.A10 salary certificate issued by a

private employer, the Tribunal fixed a monthly income of

Rs.5,000/-only. Exhibit A10 certificate was not accepted by

the Tribunal on the reason that, the same was not proved by

examining the author of the said document. The learned

counsel for the appellants points out that, from a perusal

of Ext.A1 F.I.R., it can be seen that, the deceased was a

tailor by profession. The person who gave the F.I.statement

had specifically stated that, he was working with him. The

avocation of the person who gave the F.I. statement was

stated to be a tailor as revealed from the same. Exhibit

A10 coupled with the above statement contained in the

F.I.statement, clearly shows that the deceased was a tailor

by profession and hence the monthly income appears to be on

lower side.

      7.   Going        by         the      principles     laid     down     by

Ramachandrappa          v.     Manager,        Royal     Sundaram     Alliance

Insurance Company Limited [(2011)13 SCC 236] and Syed Sadiq

v. Divisional Manager, United Indian Insurance Company

Limited [(2014)2 SCC 735], the monthly income even for a

coolie can be taken as Rs.4,500/- for the year, 2004. Based

on the principles laid down by the above judgment, even in

the cases where the claim in respect of a person without

any source of income, this Court is consistently computing

the compensation by fixing the monthly income as Rs.4,500/-

for the year, 2004 and by adding Rs.500/- each for the

subsequent years, in respect of the accidents occurred in

the years after 2004. However, that criteria is usually

made applicable to persons who failed to produce any

evidence for employment as well as income. When there is

some evidence showing the existence of a more profitable

avocation, slightly higher amount can be adopted. Ext.A10

statement can be relied upon for altleast deciding the

question of avocation of the deceased, particularly when,

another tailor who made the Ext. A1 FI statement in respect

of the accident, had stated that the deceased was a co-

worker. The incident in this case occurred in the year,

2009. Taking note of the date of accident and also the

nature of avocation, I am of the view that the amount of

Rs.9,000/- as monthly income is reasonable. Therefore, the

monthly income is fixed as Rs.9,000/-. Another aspect is

the addition to be made in the monthly income, towards

future prospects. The Tribunal made an addition of Rs.30%

which is on higher side. Going by the principles laid down

by the Hon'ble Supreme Court in National Insurance Company

Ltd. v. Pranay Sethi [2017(4)KLT 662], proper addition

should have been 25% as the deceased is coming within the

age group of 40-50. Therefore, instead of 30%, the addition

to be made towards future prospects is fixed at 25%. If

that be so, the amount of compensation which the appellants

will be entitled for compensation for loss of dependency

will come to Rs.14,17,500/-(Rs.(9000+2250)x12x14x3/4). The

Tribunal has awarded an amount of Rs.8,19,000/- under this

head. Hence, the balance amount receivable by the

appellants is Rs.5,98,500/-.

8. Going by the compensation awarded by the Tribunal,

it can be seen that, an amount of Rs.1,00,000/- has been

granted by the Tribunal under the head of loss of

consortium to the wife and a further amount of

Rs.1,50,000/- is seen granted under the head of loss of

love and affection. Going by the principles laid down by

the Hon'ble Supreme Court in Pranay Sethi (supra), the

compensation of loss of consortium can be fixed as

Rs.40,000/- each to all the appellants (including

compensation for parental and filial consortium to children

and parents respectively). As per the principles laid down

by the Hon'ble Supreme Court of India in New India

Assurance Company Limited v. Somwati and Others [(2020)9

SCC 644] an amount of compensation under the head of loss

of love and affection need not be granted, when

compensation is awarded under the head of loss of

consortium. Therefore, the award of amounts by the Tribunal

under both the heads simultaneously, is not sustainable. In

the light of the above principles, the wife is entitled

spousal consortium of Rs.40,000, children are entitled for

parental consortium and the parents are entitled filial

consortium, at the rate of Rs.40,000/- each. Accordingly,

the loss of consortium granted by the Tribunal is re-fixed

as Rs.2,00,000/- in total. Thus, the claimants are entitled

to get an additional amount of Rs.1,00,000/- under the head

of loss of consortium. Similarly, in the light of the

principles in Somwati's case (supra) the entire amount of

Rs.1,50,000/- granted under the head of loss of love and

affection shall stand deleted. Apart from the above, an

amount of Rs.25,000/- is seen granted under the head of

funeral expenses which is in excess of Rs.10,000/- going by

the principles laid down in Pranay Sethi (supra).

Therefore, an amount of Rs.10,000/- has to be deducted

under that head. Similarly, under the head of loss of

estate, what is awarded by the Tribunal is only Rs.10,000/-

whereas the actual entitlement is Rs.15,000/-. Hence, an

amount of Rs.5,000/- is added under that the head.

In the result, the additional compensation is fixed

as Rs.5,43,500/-(Rupees Five Lakhs Forty three thousand

and five hundred only)(Rs.5,98,500+1,00,000+5000-10,000-

1,50,000). The third respondent-Insurance Company is

directed to deposit the said amount, along with interest

and proportionate costs, as ordered by the Tribunal, within

a period of three months from the date of receipt of a copy

of this judgment.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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