Kerala High Court
Laiju Joy vs N Mani on 21 January, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941
MACA.No.1373 OF 2017
AGAINST THE AWARD IN OPMV 658/2009 DATED 20-07-2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANTS:
1 LAIJU JOY, S/O. JOY CHACKO, AGED 38 YEARS,
LAIJU BHAVAN, KOTTADE,POOYAPALLI, KOLLAM
(INJURED IN COMA HENCEREPRESENTED BY THE
2ND PETITIONER,WIFE OF THE 1ST PETITIONER)
2 PRINCY,W/O. LAIJU JOY, AGED 34 YEARS,
LAIJU BHAVAN, KOTTADE,POOYAPALLI, KOLLAM
(WIFE OF THE 1ST PETITIONER)
BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS:
1 N MANI, MANI BHAVAN, THIRUPURAM P.O.,
NEYYATINKARA, THIRUVANANTHAPURAM - 695 101.
2 K.N. CHRISTUDAS, S/O. NELSON,
MELEKANIVILAKATHU VEEDU, NEAR CSI CHURCH,
THIRUPURAM,THIRUPURAM VILLAGE,
THIRUVANANTHAPURAM.
3 THE BRANCH MANAGER
RELIANCE GENERAL INSURANCE COMPANY LTD.,
3RD FLOOR, VLEVAL TRANS TOWERS
VAZHUTHACADU,THIRUVANANTHAPURAM - 695 014.
R1 BY ADV. SRI.R.T.PRADEEP
R3 BY ADV. SRI.GEORGE CHERIAN (SR.)
R3 BY ADV. SMT.K.S.SANTHI
R3 BY ADV. SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 21.01.2020, ALONG WITH MACA.1455/2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1373 & 1455 of 2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941
MACA.No.1455 OF 2017
AGAINST THE AWARD IN OPMV 658/2009 DATED 20-07-2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANT:
RELIANCE GENERAL INSURANCE CO. LTD.
TRIVANDRUM, REPRESENTED BY ITSDEPUTY MANAGER,
REGIONAL OFFICE, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS:
1 LAIJU JOY, S/O. JOY CHACKO, LAIJU BHAVAN,
KOTTADE,POOYAPPALLI, KOLLAM, PIN - 691 537
(INJURED IN COMA HENCE REPRESENTED BY
THE 2ND RESPONDENT WIFE OF THE INJURED AS
NEXT FRIEND)
2 PRINCY, W/O. LAIJU JOY,LAIJU BHAVAN, KOTTADE,
POOYAPPALLI, KOLLAM,PIN - 691 537.
3 N. MANI, MANI MANDIRAM,THIRUPURAM P.O.,
NEYYATTINKARA,TRIVANDRUM - 695 101.
4 K.N. CHRISTUDAS,
S/O. NELSON, MELEKANIVILAKATHU VEEDU,
NEAR CSI CHURCH, THIRUPURAM, THIRUPURAM
VILLAGE, TRIVANDRUM, PIN - 695 101.
R1 BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)
R1, R3 BY ADV. SRI.R.T.PRADEEP
R1 BY ADV. SRI.UNNI. K.K. EZHUMATTOOR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 21.01.2020, ALONG WITH MACA.1373/2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1373 & 1455 of 2017 3
JUDGMENT
MACA No.1373 of 2017 is one filed by the claimants in O.P.(MV)No.658 of 2009 on the file of the Motor Accidents Claims Tribunal, Kollam, claiming enhancement of the compensation awarded by the Tribunal. MACA No.1455 of 2017 is one filed by the 3rd respondent insurer in O.P.(MV)No.658 of 2009 contending that, as the offending vehicle was not covered by a valid permit and fitness certificate at the time of accident, there is violation of the conditions of policy and as such, the insurer is entitled to recover the amount of compensation paid to the claimants by proceeding against the owner of the said vehicle. The insurer would also contend that the compensation awarded by the Tribunal under various heads are highly excessive and without any basis.
2. In this judgment the parties are referred to, as they appear in MACA No.1373 of 2017.
3. O.P.(MV)No.658 of 2009 arises out of a motor accident, which occurred on 16.08.2008 while the 1 st claimant (who is represented by his wife and next friend, the 2 nd claimant) was travelling in a car bearing registration No.KL- M.A.C.A.Nos.1373 & 1455 of 2017 4 02/R-2808. At the place of accident, the car was hit by a tipper lorry bearing registration No.KL-01/Q-4417 owned by the 1 st respondent, driven by the 2nd respondent and insured with the 3rd respondent (the appellant in MACA No.1455 of 2017). In the accident, the 1st claimant and others sustained injuries. The 1st claimant became unconscious and after the accident, he never regained consciousness. He is in a coma stage. Alleging that the accident occurred due to the rash and negligent driving of the tipper lorry by the 2 nd respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.30,00,000/- under various heads.
4. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. The 3 rd respondent insurer filed written statement disputing the liability on the ground of dishonour of cheque issued by the 1 st respondent owner towards premium. The cheque was dishonoured on 15.10.2007 and the 3rd respondent issued a notice to the 1st respondent on 31.10.2007 intimating cancellation of insurance policy. As the accident occurred on 16.08.2008, almost ten months after cancellation of the policy, the 3 rd respondent insurer contended that it is not liable to pay the amount of compensation. M.A.C.A.Nos.1373 & 1455 of 2017 5
5. Before the Tribunal Exts.A1 to A18 were marked on the side of the claimants and the 2 nd claimant was examined as PW1. Exts.B1 to B5 were marked on the side of the respondents. The document marked as Ext.C1 is the disability certificate, in which the permanent disability of the 1 st claimant, on account of the injuries sustained in the accident, is assessed as 98%. The Tribunal took the percentage of disability as 80%.
6. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion, in its award dated 31.10.2012, that the accident occurred due to the rash and negligent driving of tipper lorry by the 2 nd respondent driver. The liability was fixed on the 1st respondent owner, on a finding that there was no valid insurance policy, permit and fitness certificate for the tipper lorry and the 2 nd respondent was not holding a valid driving licence. Respondents 1 and 2 filed I.A.No.81 of 2013 to set aside the ex parte award. They produced Exts.B6 to B9 documents. The 3 rd respondent insurer filed a statement admitting insurance coverage; however, contending that, at the time of accident, the vehicle was not having a valid permit and fitness certificate and that, the 2 nd M.A.C.A.Nos.1373 & 1455 of 2017 6 respondent was not holding a valid driving licence.
7. Relying on Exts.B6 to B9, the Tribunal held that, respondents 1 and 2 have succeeded in proving that, at the time of accident, the vehicle was covered by a valid insurance policy and permit and that, the 2nd respondent was holding a valid driving licence. Relying on the decision of the Full Bench in Augustine v. Ayyappakutty [2015 (2) KLT 139], the Tribunal held in the impugned award dated 20.07.2016 that the 3rd respondent insurer cannot be exonerated merely on the reason that the fitness certificate had expired. Therefore, the Tribunal held that the 3rd respondent insurer is liable to indemnify the 1st respondent owner and pay the amount of compensation. Under various heads, the Tribunal awarded a total compensation of Rs.23,22,000/-, together with interest at the rate of 7.5% from 09.07.2009 till the date of realisation, with a cost of Rs.20,000/-, and the 3 rd respondent insurer was directed to satisfy the award.
8. In MACA No.1455 of 2017 filed by the insurer, this Court granted an interim stay, on 02.06.2017, in I.A.No.1763 of 2017, staying the execution of the award in O.P.(MV)No.658 of 2009, on condition that the insurer deposits with the Motor M.A.C.A.Nos.1373 & 1455 of 2017 7 Accidents Claims Tribunal, Kollam one-half of the amount awarded (inclusive of interest and cots), within a period of six weeks. On such deposit, the said amount was ordered to be released to the claimants, in terms of the directions in the impugned award.
9. Heard the learned counsel for the appellants/ claimants, the learned counsel for the owner and driver of the offending vehicle and also the learned counsel for the insurer.
10. The issues that arise for consideration in this appeals are as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation; and whether the insurer is entitled for recovery right against the 1st respondent owner, on account of violation of the conditions of policy.
11. In State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484] the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in M.A.C.A.Nos.1373 & 1455 of 2017 8 golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance.
12. In National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability.
13. The compensation awarded by the Tribunal under various heads reads thus;
M.A.C.A.Nos.1373 & 1455 of 2017 9 The compensation Amount Amount Basis/vital claimed under various claimed allowed details in a heads nutshell 1 Loss of earnings 3,00,000/- 42,000/- (7000 x 6) 2 Loss of earning partial 4,20,000/- Nil 3 Medical and 8,00,000/- 6,00,000/- Ext.A18 miscellaneous expenses series bills produced 4 Future treatment 3,00,000/- Nil 5 Bystander's expenses 50,000/- 31,875/- (255 x 125) 6 Transportation 25,000/- 40,000/- expenses 7 Extra nourishment 50,000/- 2,000/- 8 Damage to clothing and 1,000/- Nil articles 9 Compensation for pain 5,00,000/- 30,000/- and sufferings 10 Compensation for 20,00,000/- 10,75,200/- 7,000 x 12 continuing or x 80 x permanent disability if 16/100 any 11 Loss / reduction in 1,00,000/- earning capacity 12 Any other heads loss of 5,00,000/- amenities in life (for special bystander) Total 46,46,000/- 23,21,075/- limited to rounded as Rs.30,00,000/- Rs.23,22,000/- (Rupees twenty three lakhs and twenty two thousand only)
14. The accident occurred on 01.08.2008. At the time of accident, the 1st claimant was aged 30 years. On the strength of Ext.A14 salary certificate issued by OHL International, Doha, M.A.C.A.Nos.1373 & 1455 of 2017 10 Qatar, the salary of the 1 st claimant was claimed as 2,400 Qatari Riyal, equivalent to Rs.30,000/-. The document marked as Ext.A15 is the diploma certificate of the 1 st claimant in Fire and Safety Engineering. Though the 2nd claimant, the wife of the 1st claimant, was examined as PW1, the Tribunal took the monthly income of the 1st claimant notionally as Rs.7,000/-, for the purpose of awarding compensation under various heads, in the absence of any reliable materials to prove the monthly income.
15. The learned counsel for the appellants/claimants would argue that, the monthly income of the 1st appellant, as on the date of accident, has to be taken as Rs.30,000/-, based on Ext.A14 salary certificate.
16. In Jiju Kuruvila v. Oriental Insurance Co. Ltd. [(2013) 9 SCC 166] the appellants before the Apex Court are the legal representatives of the deceased, who was about 45 years of age as on the date of accident, which occurred on 16.04.1990, and was working as a Manager in the Freeman Management Corporation, New York Branch in the United State of America for more than 9 years and was receiving a monthly salary of 2500 US Dollars, equivalent to Rs.43,100/-. He was M.A.C.A.Nos.1373 & 1455 of 2017 11 provided with quarter by the employer and was residing alongwith his wife. The deceased used to give Rs.30,000/- per month to his wife for the household expenses and savings after meeting his personal expenses. He was healthy, energetic, otherwise, had longevity of life and could have continued in service upto the age of 65 years as per service conditions, i.e., for another 20 years. Tribunal fixed Rs.10,000/- as the monthly contribution by the deceased. The High Court held that the Tribunal wrongly fixed Rs.10,000/- as the monthly contribution by the deceased to the family and observed that even if 1/3rd was deducted towards personal expenses of the deceased, more than 1600 US Dollars could be taken as dependency benefit. However, while determining the compensation, the High Court took the figure of 1500 US Dollars as the dependency benefit. The exchange rate as was prevailing on the date of filing of the claim petition, i.e., April, 1990 was taken into consideration based on Ext.A7 and worked out the contribution to the family as Rs.25,950/- per month. One of the questions before the Apex Court was whether the foreign currency amount has to be converted into M.A.C.A.Nos.1373 & 1455 of 2017 12 the currency of the country on the basis of exchange rate as on the date of filing claim petition (April, 1990) or as on the date of determination (May, 1993). Admittedly the claimants filed a petition in April, 1990 (affidavit sworn on 24 th March, 1990) and claimed compensation in INR, i.e., Rs.57,25,000/-. Such compensation was not claimed in US Dollars. For the said reason and in view of the decisions in Forasol v. Oil and Natural Gas Commission [(1984) Supp. SCC 263] and Renusagar Power Co. Ltd. v. General Electric Co. [(1994) 1994 Supp. 1 SCC 644] the Apex Court held that the date of filing of the claim petition (April, 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext.A7, to fix the rate of exchange as Rs.17.30 (as was prevailing in April, 1990).
17. In Jiju Kuruvila on the question of just and proper compensation, the Apex Court noticed that, both the Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as M.A.C.A.Nos.1373 & 1455 of 2017 13 Manager, Freeman Management Corporation, New York Branch, USA and was getting a monthly salary of 2500 US Dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment upto the age of 65 years. Ext.A6 is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, USA dated 23.04.1990, which shows that his annual salary was 30,000 US Dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service upto the age of 65 years. Ext.A6 was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. On the basis of the aforesaid annual income and exchange rate of Rs.17.30 per US Dollar as applicable in April, 1990 (as per Ext.A7), the Apex Court found that the annual income of the deceased if converted in Indian currency will be 30,000 x 17.30 = 5,19,000/- at the time of death.
18. In Jiju Kuruvila, the deceased was in the M.A.C.A.Nos.1373 & 1455 of 2017 14 employment Freeman Management Corporation, New York Branch, USA for 9 years and his employment was of a permanent nature. He was provided with quarter by the employer and was residing alongwith his wife. He was working as Manager and was getting a monthly salary of 2500 US Dollars. The deceased would have continued in service upto the age of 65 years. Ext.A6 certificate issued by the employer of deceased, which was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 was also produced before the Tribunal. The law laid down by the Apex Court in Jiju Kuruvila cannot be applied in the case of non-permanent employment with uncertainty regarding continuance. The monthly income of the injured/deceased, which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon for the purpose of assessing the compensation payable under the head disability in injury cases/loss of dependency in death cases. M.A.C.A.Nos.1373 & 1455 of 2017 15
19. In Valsamma and another v. Binu Jose and others [2014 (1) KHC 207] the case of the appellants before the Division Bench of this Court was that the deceased, who was aged 29 years, was working as spray painter in Oman and getting Rs.20,000/- per month. In order to prove the same, they have produced Ext.A5 agreement entered into between the deceased with one Bahwan Automotive Centre, Sultanate of Oman dated 15.05.2001, Ext.A7 labour card and Ext.A8 passport. But, those documents were not proved in accordance with law. The executant of Ext.A6 agreement was not examined to prove the contents of the same. The passport entry would show that the deceased was having visa up to 25.03.2005 and the accident occurred on 18.09.2004. The Division Bench held that those documents are not sufficient to prove that the deceased was having so much income there. The Division Bench noticed that, employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a Government service there. If the deceased was a permanent employee there, then that can M.A.C.A.Nos.1373 & 1455 of 2017 16 be taken as a permanent income and that may be useful to assess the compensation payable to his dependents on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such circumstances, the Court will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon. So, the Tribunal was perfectly justified in not relying on the document produced and the income alleged to have been derived by the deceased at Oman for the purpose of considering the compensation payable on his death. The Division Bench held that, some guess work will have to be made for assessing the income of the deceased who was not having permanent job or self employment, but having some M.A.C.A.Nos.1373 & 1455 of 2017 17 fixed income. The deceased was working as a spray painter and so a person of that caliber in Kerala during 2004 will be getting at least Rs.3,000/- and including his future prospects, his income can be taken as Rs.5,000/- per month, for the purpose of assessing compensation under the head of loss of dependency.
20. In Abraham Jacob @ Avarachan v. N. Mubarak and others [2014 (3) KLT 883], according to the appellant before the Division Bench of this Court, at the time of accident, he was working as a Sales Manager in Buzwair Engineering & Contracting, Doha, Qatar, and earning a monthly income of Qatari Riyal 10,000/- (equivalent INR 1,15,000/-). Ext.A4 was the salary certificate issued by his employer, certifying that he is working with them as an employee and his basic salary is Qatari Riyal 10,000/- per month. Ext.A4 was authenticated by the Consular Officer of the Embassy of India at Doha (Qatar), in accordance with the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. Though the salary certificate was marked as Ext.A4, the Tribunal refused to rely on the same stating that it has not been proved as required by law.
M.A.C.A.Nos.1373 & 1455 of 2017 18
21. In Abraham Jacob the Division Bench held that sub-section (1) of Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 confers power on the Indian diplomatic and consular officers in foreign countries to administer any oath and take any affidavit and also do any notarial act which any notary public may do within a State and every oath, affidavit and notarial act administered, sworn or done by or before such diplomatic and consular officers shall be as effectual as if duly administered or done by any lawful authority in a State. Sub-section (2) of Section 3 of the Act lays down that any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of the diplomatic and consular officers authorised by the Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or of the official character of that person. Section 3 of the Act does not dispense with the proof of a document according to law if it is to be used as evidence in a court of law. All that Section 3 M.A.C.A.Nos.1373 & 1455 of 2017 19 does is to enable a court to dispense with the proof of the genuineness of the seal and signatures of a diplomatic or consular officer on a particular document. If the document is otherwise relevant and proved in accordance with law, a copy of the said document duly authenticated in the manner prescribed by the Act can be admitted in evidence.
22. In Abraham Jacob, the appellant, who was only a Postgraduate in Botany, has no case that he had acquired any prior experience or special qualification to hold the post of Sales Manager in engineering and contract field. In such circumstances, the Division Bench held that, though Ext.A4 is a document authenticated in accordance with Section 3 of the Act, the monthly income of Qatari Riyal 10,000/- shown in that certificate cannot be taken as the basis for calculating compensation payable under various heads. The document marked as Ext.A10 was a copy of the passport of the appellant, as per which, he went to Doha in the year 1998 and returned on 18.04.1999. Ext.A11 certificate issued by the Asst. General Manager, the Lord Krishna Bank Ltd., Kottayam Branch showed that he was having a NRE (Non-Resident External) term deposit to the tune of Rs.49,04,857/-, as on 31.03.1999. M.A.C.A.Nos.1373 & 1455 of 2017 20 Ext.A12 was another certificate issued by the Manager, Punjab National Bank, Kottayam Branch, certifying that the appellant and his wife Mollykutty were having accounts with them and the balance as on 31.03.1999 was Rs.36,95,199/-. The Division Bench found that Exts.A11 and A12 certificates indicate that the appellant was drawing a reasonably good salary from his overseas employment. As per Annexure C certificate issued by the Chief Executive Officer of Buzwair Engineering & Contracting, Doha, produced before this Court, along with I.A.No.285/2014, a document authenticated in accordance with Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, the service of the appellant was terminated as he could not rejoin service after the accident occurred on 10.05.1999. Considering the aforesaid facts and circumstances of the case and the evidence on record, the Division Bench found that the monthly earning capacity of the appellant, as on the date of accident, can be reasonably fixed at Rs.40,000/-, as against Rs.10,000/- fixed by the Tribunal, for calculating compensation under various heads.
23. In Sherfuddin v. Saveesh K. and another [2014 M.A.C.A.Nos.1373 & 1455 of 2017 21 (1) KHC 242] the case of the appellant before the Division Bench was that, at the time of accident he was a driver-cum- salesman working in Qatar and getting Rs.28,000/- per month. He had produced Ext.A15 driving licence and Exts.A10 and A10(a) passport to prove that he was employed in Qatar. But, he had not produced any document to prove that he was getting Rs.28,000/- per month at that time. He had no consistent case regarding his income. Though, in the claim petition, he had mentioned his income as Rs.28,000/- per mensum, when he was examined as PW1, his case was that his income was Rs.60,000/- per month. He had produced his passbook to show that he had sent Rs.58,103/- during a span of 7 months. The Division Bench held that, the fact that the appellant had sent Rs.58,103/- during a span of 7 months alone is not sufficient to come to the conclusion that he was getting a stable income in a foreign country. It was not a permanent income and it has got its own uncertainties. In such circumstances, the income alleged to have been earned by a person in a foreign country cannot be taken as such for the purpose of assessing his monthly income. The Court has to M.A.C.A.Nos.1373 & 1455 of 2017 22 consider the standards in India as to what would have been the probable income that such a person will earn if he was employed here. The Division Bench, under the circumstances, found that the monthly income of Rs.5,000/- fixed by the Tribunal is just and proper, which requires no enhancement.
24. In Satheesan E.K. v. Musthafa K.P. and another [2018 (5) KHC 884] one of the contentions raised before this Court by the learned Standing Counsel for the insurer was that the income as revealed by the documents produced in evidence cannot be taken in toto, since employment in a foreign country is beset with uncertainties. It was also argued that if such an income is taken for computation of future earnings, it would lead to undue benefit being conferred on the claimant. After considering the rival contentions, this Court held that, Valsamma [2014 (1) KHC 207] is a case in which the claimant, who was the legal heir of the deceased, asserted an income of Rs.20,000/- and relied on an agreement with the foreign employer, the labour card and the Passport. There was no clear indication of the amounts received by the deceased as income. In that context, finding that the documents are not M.A.C.A.Nos.1373 & 1455 of 2017 23 sufficient to prove the income of the deceased, the Court assessed the income of the person in the context of Indian standards, and for a Spray Painter the income was fixed at Rs.5,000/- per month. Sherfuddin [2014 (1) KHC 242] was a claim filed by the injured itself, asserting an income of Rs.28,000/- in his foreign employment at Qatar. Again, the Court found that there was no document showing the exact amount received by the claimant in his foreign employment. It was also found that the pleadings indicated an assertion of an amount of Rs.28,000/- per mensem, while in deposition he stated it to be Rs.60,000/-. Finding discrepancy in the versions of the claimant itself as also the finding the exact amounts not being proved, the income of a driver-cum-salesman was fixed at Rs.5,000/-. In Abraham Jacob @ Avarachan [2014 (3) KLT 883] the appellant produced a salary certificate authenticated by the Consular Officer of the Embassy of India at Doha (Qatar) in accordance with the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. The Court found that such authentication would not give a go by to the requirement of proof insofar as the contents of the M.A.C.A.Nos.1373 & 1455 of 2017 24 documents. Therein also, when the claim of income from the foreign employer was of Rs.1,15,000/- per month, the monthly income accepted, following Valsamma, was Rs.40,000/-. It is fairly discernible that in all these decisions the different Division Benches adopted 1/4th of the amounts asserted by the claimants as the monthly income of the injured/deceased from the foreign employment. The uncertainties insofar as the foreign employment, as has been found in the various decisions, loom large and stand against the claimant in the present case also. But, that would not deter this Court from making a reasonable computation of the monthly income, again going by the binding precedents, at least 1/4th of the income in the foreign employment which, in the present case, stands proved unequivocally by reason of no objection having been raised on the proof of its contents at the time when it was marked in trial.
25. In the instant case, though the claim petition was filed with an averment that the 1 st claimant was employed abroad as Fire and Safety Officer, it is a fact that, he sustained injuries in the motor accident, which occurred on 01.08.2008, before receipt of Ext.A13 Visa, which is one dated 05.08.2008. M.A.C.A.Nos.1373 & 1455 of 2017 25 But for the accident, he could have worked abroad as Fire and Safety Officer, on the strength of Ext.A15 Diploma in Fire and Safety Engineering and Ext.A14 offer of appointment from OHL, Doha, Qatar.
26. During the course of arguments, the learned counsel for the appellants/claimants would submit that the appellants may be granted an opportunity to adduce further evidence before the Tribunal to prove the monthly income of the 1st appellant as a Fire and Safety Officer, considering the standards in India, as on the date of accident, so as to enable the Tribunal to re-fix the monthly income appropriately, instead of taking only a notional figure.
27. The learned counsel for the insurer would submit that, considering the physical condition of the 1 st appellant, the appellants can be afforded with an opportunity to adduce further evidence in order to prove the probable monthly income of the 1st appellant, as on the date of accident, for awarding just and reasonable compensation under the head permanent disability.
28. The learned counsel for the appellant would contend that the Tribunal went wrong in scaling down the percentage of M.A.C.A.Nos.1373 & 1455 of 2017 26 permanent whole body disability of the 1st appellant to 80%.
29. In Ext.C1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 98%. In the award, the Tribunal noticed that, after the accident, the 1 st appellant is in a coma stage. He was brought before the Tribunal in a stretcher. He is not in a position to move or speak.
30. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], the Apex Court laid down the principles governing assessment of future loss of earning due to permanent disability. The Apex Court held that where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in M.A.C.A.Nos.1373 & 1455 of 2017 27 terms of a percentage of income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).
31. In Raj Kumar's case, the Apex Court held that, if the Tribunal concludes that there is permanent disability as a result of the injuries, then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood; or (ii) whether in spite of the permanent M.A.C.A.Nos.1373 & 1455 of 2017 28 disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on; or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head.
32. In the instant case, on account of the injuries sustained in the accident, the 1st appellant is in a coma stage. He is not in a position to move or speak. He is not in a position to carry on any activity or function to earn his livelihood. Therefore, the 1st appellant is entitled for award of compensation under the head permanent disability, treating loss of future earning capacity as 100%.
33. In Mekala v. Malathi M. [(2014) 11 SCC 178] M.A.C.A.Nos.1373 & 1455 of 2017 29 the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, M.A.C.A.Nos.1373 & 1455 of 2017 30 taking a monthly notional income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551] and Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]. M.A.C.A.Nos.1373 & 1455 of 2017 31 Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of Govind Yadav, which has reiterated the position of Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]. The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of Reshma Kumari that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% M.A.C.A.Nos.1373 & 1455 of 2017 32 increase, taking into consideration the future prospects, as per the principle laid down in Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421].
34. In Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421], to injured persons having higher percentage of functional disability.
35. Since the loss of future earning capacity of the 1 st appellant, on account of the injuries sustained in the accident, is taken as 100%, he is entitled for award of compensation under the head permanent disability, adding future prospects to his notional income, based on the law laid down by the Apex Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680].
36. The learned counsel for the appellants would contend that the compensation awarded by the Tribunal under M.A.C.A.Nos.1373 & 1455 of 2017 33 various heads are on the lower side.
37. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka [(2009) 6 SCC 1], the Apex Court emphasised that, a person injured in an accident leaves his family in greater distress vis-a-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution endures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.
38. The learned counsel for the insurer would point out that the judgment of the Full Bench in Augustine stands overruled by the judgment of the Larger Bench in Pareed Pillai v. Oriental Insurance Co.Ltd. [2018 (5) KHC 1]. The learned counsel would also submit that the insurer may also be granted an opportunity to adduce further evidence on the M.A.C.A.Nos.1373 & 1455 of 2017 34 question of violation of the conditions of policy, since no materials were produced before the Tribunal to show that the offending vehicle was covered by a valid permit and fitness certificate, as on the date of accident.
39. The learned counsel for the owner and driver of the offending vehicle would contend that, the tipper lorry was having valid permit and fitness certificate, as on the date of accident, and as such, the contention raised by the learned counsel for the insurer as to violation of the conditions of policy is absolutely without any basis.
40. As pointed out by the learned counsel for the insurer, the permit and fitness certificate of the offending vehicle were never produced before the Tribunal and therefore, the finding of the Tribunal in paragraph 25 of the award that, Ext.B8 fitness certificate of the vehicle was valid upto 15.11.2008 is absolutely without any basis. The learned counsel would point out that, the document marked as Ext.B8 is the copy of the AMVI report.
41. Having considered the rival submissions on the question of violation of conditions of policy, this Court finds M.A.C.A.Nos.1373 & 1455 of 2017 35 that, that question requires reconsideration at the hands of the Tribunal after affording the owner and insurer of the offending vehicle an opportunity to adduce further evidence to substantiate their contentions.
42. In the result, these appeals are disposed of by remanding the matter to the Tribunal for fresh consideration to re-fix just and reasonable compensation that has to be awarded to the 1st appellant under various heads for the injuries sustained by him in the motor accident. The Tribunal shall re-fix the monthly income of the 1st appellant, after affording the appellants an opportunity to adduce further evidence to prove the monthly income of the 1 st appellant as a Fire and Safety Officer, considering the standards in India, as on the date of accident (instead of taking a notional figure) for awarding just and reasonable compensation under the head permanent disability, taking loss of future earning capacity as 100%. The owner of the offending vehicle and also the insurer shall be permitted to adduce further evidence on the question on violation of the conditions of policy, in order to find out whether the said vehicle was covered by a valid permit and M.A.C.A.Nos.1373 & 1455 of 2017 36 fitness certificate, as on the date of accident.
43. Since the claim petition is of the year 2009, the Tribunal shall finally dispose of the same, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.
The submission made by the learned counsel for the appellants/claimants that, in terms of the interim order of this Court dated 02.06.2017 in I.A.No.1763 of 2017 one-half of the amount awarded (inclusive of interest and cost) has already been released to the claimants is recorded.
Sd/-
ANIL K. NARENDRAN JUDGE das