Devakikutty.D vs Harshad.T.M
2021 Latest Caselaw 23539 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
   SATURDAY, THE 27TH DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943
                          MACA NO. 3584 OF 2018
  AGAINST THE AWARD DATED 20.07.2018 IN OP(MV)NO. 864/2016 OF MOTOR
                 ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANTS/PETITIONERS:

     1     DEVAKIKUTTY.D
           AGED 48 YEARS
           W/O. LATE SASIKUMAR, RESIDING AT 'KRISHNA KRIPA',
           ORAMPALLATH HOUSE, AKALUR P.O., LAKKIDI-PERUR II,
           PALAKKAD - 679 302.

     2     SACHIN S. KUMAR
           AGED 24 YEARS
           S/O. LATE SASIKUMAR, RESIDING AT 'KRISHNA KRIPA',
           ORAMPALLATH HOUSE, AKALUR P.O., LAKKIDI-PERUR II,
           PALAKKAD - 679 302.

     3     SRUTHI S.NAIR
           AGED 20 YEARS
           D/O. LATE SASIKUMAR, RESIDING AT 'KRISHNA KRIPA',
           ORAMPALLATH HOUSE, AKALUR P.O., LAKKIDI-PERUR II,
           PALAKKAD - 679 302.

     4     PADMAVATHY,
           AGED 66 YEARS
           W/O.NARAYANAN NAIR, RESIDING AT 'KRISHNA KRIPA',
           ORAMPALLATH HOUSE, CHOROTTUR P.O., MANISSERY,
           VANIYAMKULAM-II, CHEROTTUR, PALAKKAD-679521.

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



RESPONDENT/S:

     1     HARSHAD.T.M
           S/O. MUHAMMAD ALI, RESIDING AT THIRUVALLATH HOUSE,
 MACA No. 3584 of 2018                   2
             CHERUTHURUTHY P.O., THRISSUR - 679 531.

     2       MUHAMMED ALI,
             S/O.UNNIYAMU @ UNNIYANKUTTY, RESIDING AT THIRUVALLATH
             HOUSE, CHERUTHURUTHY P.O., THRISSUR DISTRICT,PIN-
             679531.

     3       THE ORIENTAL INSURANCE COMPANY LIMITED,
             DIVISIONAL OFFICE 3RD FLOOR, BUILT TECH FOUNDATIONS,
             CHITTUR ROAD PALAKKAD -678001.

             R3 BY ADV SRI.A.R.GEORGE, SC




      THIS   MOTOR      ACCIDENT   CLAIMS   APPEAL   HAVING   BEEN   FINALLY
HEARD ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No. 3584 of 2018                      3




                                    JUDGMENT

The appellants are the petitioners in

OP(MV)No.864 of 2016 on the file of the Motor

Accidents Claims Tribunal, Ottapalam. The claim

petition was filed by them seeking compensation for

the death of one Sasikumar who died due to the

injuries sustained to him in a motor accident

occurred on 7.4.2016. According to the appellants,

the scooter ridden by the deceased was hit by a

jeep driven by the 1st respondent, owned by the 2nd

respondent and insured with the 3rd respondent. It

was claimed that the deceased was working as Chief

Electrician in a private company with a monthly

income of Rs.20,000/-. The total amount of

compensation claimed was Rs.25 Lakhs.

2. The 1st and 2nd respondents filed a joint

written statement wherein they denied the

negligence on the part of the 1st respondent. It was

also pointed out that even if he is found to be

liable for the accident, the amount of compensation

has to be realized from the 3rd respondent Insurance

Company, as the vehicle was covered with a valid

insurance policy at the relevant time. The 3rd

respondent filed a written statement disputing the

quantum of compensation as also the negligence.

However, the coverage of policy in respect of the

vehicle was admitted.

3. The evidence in this case consists of oral

evidence of PW1 and Exhibits A1 to A8 were marked

from the side of the appellants. No evidence was

adduced from the side of the respondents. After the

trial, the Tribunal fixed a total compensation of

Rs.8,58,050/-. Since it was found that the accident

occurred due to the negligence of the 1 st

respondent, being the insurer, the 3rd respondent

was directed to deposit the said amount along with

interest at the rate of 9% per annum. This appeal

is filed by the appellants being aggrieved by the

quantum of compensation.

4. Heard Sri. Nimod A.R., the learned counsel

for the appellants and Sri.A.R.George, the learned

counsel for the 3rd respondent Insurance Company.

5. The main contention is with regard to the

monthly income taken by the Tribunal. Even though

an amount of Rs.20,000/- was claimed, the Tribunal

fixed the monthly income as Rs.6,500/- only. It was

pointed out that, in order to establish the monthly

income Ext.A8 salary certificate was produced and

the same was proved through PW1 who issued the

same. The aforesaid certificate indicates that the

salary of the deceased was Rs.20,000/-. However,

the Tribunal did not accept Ext.A8 salary

certificate and also the evidence of PW1 on the

reason that, no supporting documents indicating the

salary was produced. It was conceded by PW1 that no

registration for his employment was made in the

labour department, provident fund, gratuity, E.S.I.

etc. It was in such circumstances, the Tribunal did

not rely on Ext.A8.

6. The learned counsel for the Insurance

Company seriously opposes the aforesaid contention

and points out that, despite the fact that, the

deceased was claimed to be an Electrician, no

document showing the qualification and also the

registration which he might have obtained if he was

an Electrician, was produced. In such

circumstances, Ext.A8 and the evidence of PW1

cannot be accepted, contends the counsel.

7. When examining the entire facts and

circumstances of the case, it is evident that the

monthly income of Rs.6,500/- fixed by the Tribunal

is grossly inadequate. However, the monthly income

as claimed by the appellants cannot be accepted as

such, because of the fact that, despite the claim

that he was qualified as an electrician, no

documents substantiating his qualification was

produced. As pointed out by the learned counsel for

the Insurance Company, necessarily, he might be

having a license if he was an electrician, which is

not seen produced. Therefore, it is evident that

the best evidence available to show the

qualification was not produced before the Tribunal.

Therefore, the income mentioned in Ext.A8 cannot be

accepted as such. However, it is a fact that, the

accident occurred in the year 2016. Even though,

the monthly income as mentioned by PW1 could be

exaggerated, it would indicate that the deceased

was having regular employment. In such

circumstances, I am of the view that, Rs.14,000/-

would be a reasonable monthly income, when taking

into account the economic conditions prevailed in

the year 2016, and it is fixed as such.

8. Another contention put forward by the

learned counsel for the appellants is with regard

to the deduction made towards personal expenses of

the deceased. It is contended that 1/3rd of the

monthly income is seen deducted as personal

expenses of the deceased. It is evident that there

are four claimants in the claim petition who are

wife, children and mother of the deceased. As per

the principles laid down in National Insurance

Company Ltd. v. Pranay Sethi [2017(4)KLT 662], if

the number of dependents is four, deduction to be

made towards personal expenses should be 1/4th and

the same can be adopted in this case. It is also

contended that as the deceased was aged 48 at the

time of incident, 25% of the monthly income must be

added for future prospects. While re-working the

compensation for the loss of dependency with the

revised criteria as mentioned above, the amount

under the loss of dependency would come to

Rs.20,47,500/-. [(Rs.14,000+3500)x12x13x3/4)]. The

Tribunal has awarded an amount of Rs.6,76,000/-

under the head of loss of dependency. Thus, after

deducting the said amount, the appellants are

entitled to an additional amount of Rs.13,71,500/-

under this head. It is seen that, an amount of

Rs.1,00,000/- is seen granted towards loss of love

and affection. As per the principles laid down in

United India Insurance Co.Ltd. v. Satinder Kaur @

Satwinder Kaur and Others (AIR 2020 SC 3076), the

parents of the deceased are entitled for filial

consortium whereas the children are entitled to

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

It is also held that when compensation for loss of

consortium is granted, no further amount can be

granted under the head of loss of love and

affection. While applying the aforesaid principles,

the amount awarded under the head of loss of love

and affection has to be deducted and the appellants

2,3 and 4 are to be awarded compensation under the

head of loss of parental consortium as well as

filial consortium respectively at the rate of

40,000/- each. The compensation under these heads

are revised accordingly.

In the above circumstances, the total amount

receivable by the appellants in addition to the

compensation awarded by the Tribunal would come to

Rs.13,91,500/- [Rs.13,71,500-1,00,000+1,20,000]

[Rupees Thirteen Lakhs Ninety one thousand and Five

hundred only]. The 3rd 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 copy of this judgment.

The above appeal is disposed of as above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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