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2021 DIGILAW 782 (KER)

Priya v. New India Assurance Company Ltd.

2021-09-03

A.BADHARUDEEN

body2021
JUDGMENT : This appeal is at the instance of the petitioners, who are aggrieved by the award of M.A.C.T, Irinjalakuda in OP(MV) No.856/2015 dated 04.06.2018. Original 2nd respondent is the sole respondent herein. 2. The parties in this appeal will be referred as to their status before the Tribunal. 3. Petitioners, claimed to be the legal heirs/dependants of the deceased Harilal, who died in consequence of an accident occurred on 21.03.2015, approached the Tribunal and sought compensation to the tune of Rs.50 lakh, arraying the driver cum owner and insurer of the offending vehicle as respondents. 4. Petitioners alleged negligence on the part of the 1st respondent, who is the driver of the car bearing registration No.KL-08-AV-1391. 5. The 1st and 2nd respondents filed written statements. The 1st respondent denied the negligence attributed against him and challenged the quantum also. Valid policy with the 2nd respondent was highlighted. The 2nd respondent admitted the policy and disputed the negligence. Quantum of compensation was challenged. 6. Learned Tribunal adjudicated the matter on evidence and finally granted Rs.26,10,000/- as compensation. The said finding of the learned Tribunal is under challenge in this case. 7. Heard the learned Counsel for the original petitioners as well as the learned Counsel for the insurance company. 8. The learned counsel for the petitioners argued that the deceased was earning income from two sources, viz., from Mathrubhumi daily and from a supermarket run by him. Accordingly the petitioners asserted the monthly income of the deceased as Rs.37,000/-. Ext.A17 certificate issued from Mathrubhumi daily would go to show that he was getting an average monthly income of Rs.6,783/-. Even though there is no proof regarding the actual income received by the deceased from supermarket, Exts.A11 to A14 would show that the deceased was successfully conducting the supermarket and he had paid profession tax and sale tax. The Tribunal found that the deceased was running supermarket business. But the Tribunal fixed Rs.15,000/-as the monthly income of the deceased and the said finding cannot be justified. The learned counsel for the petitioners pressed for increase in the matter of monthly income of the deceased. 9. Per contra, the learned counsel for the insurance company submitted that the specific income of the deceased was not established though documents were produced to substantiate the fact that the deceased was running supermarket business. The learned counsel for the petitioners pressed for increase in the matter of monthly income of the deceased. 9. Per contra, the learned counsel for the insurance company submitted that the specific income of the deceased was not established though documents were produced to substantiate the fact that the deceased was running supermarket business. It is submitted further that the income from Mathrubhumi daily also was not stable and nobody was examined to prove Ext.A17 certificate issued in this regard, so as to conclude that the said income as stable. He also submitted that the Tribunal fixed Rs.21,000/-as the monthly income to assess the loss of dependency income by giving 40% addition also. Therefore, the monthly income fixed in this case is reasonable and the argument advanced by the learned counsel for the petitioners to get increase in the monthly income fixed by the Tribunal cannot be accepted. 10. In view of the afore said arguments, I have perused the petition averments. On perusal of the petition, Rs.37,000/-per month was claimed as monthly income of the deceased by the petitioners. Though Exts.A11 to A17 were produced to substantiate running of supermarket by the deceased and also to prove the income of the deceased from Mathrubhumi daily, nobody capable of speaking the contents of the documents examined. Even oral evidence of the petitioners also not adduced. Therefore, the learned counsel for the insurance company is right in disputing the above documents. Going by Exts.A11 and A12, running of supermarket business by the deceased could be gathered. Similarly, payment of profession tax and sale tax returns to be read out from Exts.A14 and A13 documents. Ext.A15 is the licence fee receipt. 11. The Tribunal fixed Rs.15,000/- as the monthly income of the deceased from the business and newspaper agency together. No income tax returns produced by the petitioners to prove the actual yearly income. So, documents showing the actual income of the deceased, in fact, not available in this case. In this factual background, the Tribunal fixed the monthly income as Rs.15,000/-. However, generation of income from supermarket business as well as newspaper agency are facts established by Exts. A11 to A14. Having considered the above aspects, I am of the view that Rs.17,000/-per month can be fixed as the monthly income of the deceased for assessing loss of dependency income. 12. However, generation of income from supermarket business as well as newspaper agency are facts established by Exts. A11 to A14. Having considered the above aspects, I am of the view that Rs.17,000/-per month can be fixed as the monthly income of the deceased for assessing loss of dependency income. 12. The multiplier of 15 fixed by the Tribunal placing the deceased below the age 40, is not in dispute, otherwise the same is the apt multiplier in this case by following the ratio in Sarla Verma v. Delhi Transport Corporation [ (2009) 6 SCC 121 ]. The age of the deceased was found by the Tribunal as per Ext.A18, copy of the driving licence of the deceased showing his date of birth as 28.5.1977. 13. In view of refixation of the monthly income as Rs.17,000/-, the loss of dependency income required to be recalculated by adding 40% addition following the ratio in National Insurance Company Limited v. Pranay Sethi and Ors. [ (2017) 16 SCC 680 ], ie., 17000 + 6800 = 23,800. Hence, the loss of dependency income would come to : 23800 X 12 X 15 X 2/3 =28,56,000/-, out of which Rs.25,20,000/-was granted by the Tribunal and the balance Rs.3,36,000/-more is granted under this head. 14. It is submitted by the learned counsel for the petitioners that Rs.40,000/-alone was granted under the head loss of consortium though petitioners 1 to 3 together are entitled to get Rs.1,20,000/-@ Rs.40,000/-each, following the ratio in Pranay Sethi's case (supra). Therefore, Rs.80,000/- more under this head also is granted. 15. It appears that Rs.15,000/-was granted under the head pain and suffering. The same cannot be granted as per the decision in [ AIR 2020 SC 3076 ], United India Insurance Co. Ltd. v. Satinder Kaur. Therefore, the said amount is reduced. 16. Accordingly, the award is modified as follows: Sl No. Head of claim Amount in Appeal (Rs.) Total amount after enhancement 1 Funeral expenses 15000 15000 2 Transportation expenses 5000 5000 3 Pain and sufferings 15,000/- disentitled 4 Loss of dependency 25,20,000 28,56,000 5 Loss of estate 15000 15000 6 Loss of consortium 40,000/- 1,20,000 Total 26,10,000 30,11,000/- 17. In the result: (a) This M.A.C.A is allowed in part; (b) Modified award passed to the tune of Rs.30,11,000/-(Rupees Thirty lakh eleven thousand only) to be paid by the 3rd respondent with 9% interest. In the result: (a) This M.A.C.A is allowed in part; (b) Modified award passed to the tune of Rs.30,11,000/-(Rupees Thirty lakh eleven thousand only) to be paid by the 3rd respondent with 9% interest. The amount shall be deposited by the insurance company being the indemnifier of the insured/1st respondent. (c) The respondent/3rd respondent insurer is directed to deposit Rs.29,482.50 (Rupees Twenty nine thousand four hundred eighty two and paise fifty only) being the court fee payable in this case in favour of MACT, Irinjalakuda, and the remaining amount of compensation in the name of the petitioners as apportioned by the Tribunal within a period of two months from this date. On deposit, the petitioners are at liberty to release the same forthwith. (d) Deposit, if any, already effected shall be adjusted.