Kerala High Court
Antony Santhosh vs Sangeetha on 31 March, 2015
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939
MAT.APPEAL.NO. 518 OF 2015 ()
-----------------------------
AGAINST THE JUDGMENT IN O.P. NO.2475/2011
OF FAMILY COURT,THRISSUR DATED 31-03-2015
APPELLANTS/RESPONDENTS:
-----------------------
1. ANTONY SANTHOSH
S/O DAVIOUR K.J., KALATHIPARAMBIL HOUSE,
GREEN LANE, NEAR S.S.K.S. NAGAR,
VADUTHALA, KOCHI, PIN - 682023
2. K.J.XAVIOUR, AGED 69 YEARS
KALATHIPARAMBIL HOUSE, -DO-
BY ADVS.SRI.SUBAL J.PAUL
SMT.SHEEBA THOMAS
RESPONDENTS/PETITIONER:
-----------------------
SANGEETHA, AGED 28 YEARS
D/O DAVIS, PULLOKKARAN HOUSE, 2/26
ROSE ENCLAVE, REGENCY GARDEN
KUTTANELLUR DESOM,
THRISSUR DISTRICT, PIN - 68001.
R1 BY ADV. SRI.C.CHANDRASEKHARAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ALONG WITH M.A. NO.516 OF 2015 & M.A. NO.517 OF 2015 ON
26.10.2017, THE COURT ON 30.10.2017 DELIVERED THE FOLLOWING:
V.Chitambaresh & Sathish Ninan, JJ.
==============================
Mat.Appeal Nos.516, 517 & 518 of 2015
==========================
Dated this the 30th day of October, 2017
JUDGMENT
Sathish Ninan, J
1. These appeals arise from a common judgment in
three original petitions. Mat.Appeal No.516 of 2015
arises from G.O.P. No.1147 of 2013 regarding the
claim by the husband for guardianship of minor child,
Mat.Appeal No.517 of 2015 arises from O.P. No.293 of
2011 which is a claim by the wife for maintenance and
delivery expenses, and Mat. Appeal No.518 of 2015
arises from O.P. No. 2475 of 2011 filed by the wife
for recovery of gold ornaments, patrimony, etc. The
husband along with his father are the appellants in
Mat.Appeal 518 of 2015, and the husband alone in the
other appeals.
2. The marriage between the parties was solemnized on
31.05.2009. A girl child was born to them on
18.03.2010. The relationship between the couple
Mat.Appeal Nos.516, 517 & 518 of 2015
2
became strained and they fell apart and they started
living separately. Thereafter these litigations
sprouted. All the petitions were disposed of by the
Family Court by a common judgment.
3. As regards the claim for maintenance, `10,000/- was
claimed for the wife and `8000/- for the child. The
claim was defended by the husband contending that the
wife is employed as a research trainee in agricultural
university and that she is residing separately without
any reason; therefore, she is not entitled for any
maintenance. As regards the first contention, it is
the case of the husband that the wife has a temporary
employment and that she gets a monthly salary of
`5000/-. Presently the salary for that job is
`15,000/-, it is submitted. As could be noticed, it is
not a permanent job. The temporary employment for such
wages could not be taken as a ground to refuse
Mat.Appeal Nos.516, 517 & 518 of 2015
3
maintenance especially when she needs to maintain a
child. As regards the allegation that the wife with
the child are residing separately without any
justifiable reason, admittedly the parties are
residing separately since the year 2010. Though the
husband filed a petition for restitution of conjugal
rights, that was not pursued. PW1 has alleged that
there were attempts from the part of the husband to
assault her in respect of which complaints lodged
before the police. It cannot be, in the circumstances,
held that the refusal on the part of the wife to stay
with the husband is unjustifiable. As regards the
quantum of maintenance, the court below has taken note
of the submission of the husband regarding his salary
and has fixed `5000/- for the wife and `3000/- for the
child. He is a teacher. We find that the maintenance
awarded is just and proper considering the financial
Mat.Appeal Nos.516, 517 & 518 of 2015
4
capacity and status of the parties. There is a further
claim for amounts incurred towards delivery expenses.
The claim was disallowed by the court below. There is
no appeal challenging the same. In the circumstances,
we find no reason to interfere with the judgment and
decree in O.P 293 of 2011.
4. Coming to O.P 2475 of 2011, claim is made against
the husband under three heads, namely, return of gold,
patrimony of `2,00,000/- and value of household
articles alleged to have been entrusted with the
husband. As regards the claim for gold or its value,
it is the contention of the wife that at the time of
marriage fifty sovereigns of gold ornaments were
entrusted with the husband, which she claims return
of, or in the alternative its value. The husband
disputes the quantity of the gold. He contents that
out of the gold ornaments that the wife was having,
Mat.Appeal Nos.516, 517 & 518 of 2015
5
fifteen sovereigns were entrusted to him for keeping
in the locker. The wife also claims that in addition
to the fifty sovereigns of gold a further amount of
` 2 lakhs was entrusted to the husband in connection
with the marriage as patrimony. The said claim is
denied by the husband. It is the case of the wife that
her residential property was sold and money was raised
for purchase of gold and for payment of patrimony.
However, no documents relating to the alleged sale
were produced. No records or any bank statements are
produced showing availability or withdrawal of any
amounts. She has admitted in evidence that the
property was sold almost one year prior to the
marriage to clear off the debts of her father. Under
such circumstances, it was for her to prove the actual
consideration of the sale, the amounts expended for
clearing off the debts, the balance amount available
Mat.Appeal Nos.516, 517 & 518 of 2015
6
with them etc. So also if the gold was purchased
using that money, definitely some documents evidencing
the purchase would be available. From the trend of
husband's cross examination of the wife, it appears
that it is more or less accepted that thirty
sovereigns of gold were available with the wife. The
court below has concluded that since the husband has
admitted that the wife possessed thirty sovereigns of
gold there is no reason to disbelieve her case that
she had fifty sovereigns of gold. We are unable to
agree with the reasoning given by the court below. The
admission or circumstances, if at all any available,
probabilising the availability of thirty sovereigns,
would not enable the court to presume the quantity to
be fifty sovereigns. The finding of the court below
that fifty sovereigns of gold ornaments were entrusted
at the time of marriage is liable to be interfered
Mat.Appeal Nos.516, 517 & 518 of 2015
7
with. It could only be held that thirty sovereigns of
gold ornaments were entrusted at the time of marriage.
The finding of the court below will stand modified to
the above extent.
5. So also as regards the alleged payment of ` 2 lakhs
as patrimony at the time of betrothal, there is total
lack of evidence to prove the availability of that
much amount with the petitioner or her father at the
time of betrothal. As noticed supra no documents
regarding the alleged sale or the availability of
funds have been produced. The oral evidence of PW2
stating that he witnessed the payment of `2 lakhs as
patrimony does not inspire confidence. The
circumstance under which he is said to have witnessed
the payment and how he came to know about the amount
that has been paid etc. are not revealed. The father
of the petitioner who is said to have effected the
Mat.Appeal Nos.516, 517 & 518 of 2015
8
payment has not been examined. He would have been the
best person to speak about the payment and its source.
Suffice to say that on the evidence we are unable to
uphold the finding of the court below regarding the
payment of `2 lakh as patrimony. The said finding is
set aside and the claim is rejected.
6. As regards the claim for value of household
articles stated to have been entrusted, as noticed by
the court below, the husband has admitted the receipt
of articles except a fridge and washing machine. There
is no reason to believe that from out of the entire
list of articles stated by the wife these two items
alone have not been given. Therefore, we find no
reason to interfere with the finding of the court
below regarding the house hold articles.
7. As regards the claim for custody of the minor
child, the child is presently aged 7 years. It is a
Mat.Appeal Nos.516, 517 & 518 of 2015
9
girl child. It needs the company of its mother.
However, the father is also entitled to the company of
his child and there is no reason why custody should be
totally denied to him. No circumstance has been
brought out disentitling the father to have the
company of his child. The court below has only granted
a visitation right to the father and that too once in
a month. We feel that the father should be given more
opportunity to interact with his child. It is not in
dispute that he is residing with his parents. We feel
that while maintaining the custody of the child with
the mother, the father could be given overnight
custody of the child once in every month. So also
custody is to be given to the father for the first 5
days during Onam and Christmas holidays, and the first
15 days during summer vacation.
Mat.Appeal Nos.516, 517 & 518 of 2015
10
8. In the result,
(a) Mat.Appeal 517 of 2015 is
dismissed. The decree and judgment
in O.P. No.293 of 2011 will stand
confirmed.
(b) Mat.Appeal 518 of 2015 is allowed
in part. The claim for `2 Lakhs will
stand dismissed and the decree for
gold will stand modified as one for
thirty sovereigns. The remaining
part of the decree will stand
confirmed.
(c) Mat.Appeal 516 of 2015 is allowed
in part. The wife shall hand over
the child -Joyce- to the husband at
11 a.m on every second Saturday at
the Family Court, Thrissur and the
Mat.Appeal Nos.516, 517 & 518 of 2015
11
child shall be returned by the
husband back to the wife at 4 p.m on
Sunday at the same premises.
Further, custody is to be given to
the father for the first 5 days
during Onam and Christmas holidays,
and the first 15 days during summer
vacation.
The decree and judgment in O.P. 2475 of 2011 and
G.O.P.1147 of 2013 will stand modified as above.
Sd/- V.Chitambaresh, Judge
Sd/- Sathish Ninan, Judge
vdv
//TRUE COPY//
P.A TO JUDGE
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939
MACA.No. 3677 of 2017
AGAINST THE AWARD IN OPMV 1332/2011 of MACT ALAPPUZHA DATED 31-03-2017
APPELLANT(S)/PETITIONER
CHRISTOPHER @ BENNI,
S/O. XAVIER, MANGIYIL VEEDU,
MANGALAM WARD, KANJIRAMCHIRA P.O.,
ALAPPUZHA.
BY ADVS.SRI.GEORGE
VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.P.J.JOE PAUL
SRI.RAJAN G. GEORGE
RESPONDENT(S)/RESPONDENTS :
1. JOY V.V.,
S/O. VALSALAN V. J.,
VARPURAYIDATHIL VEEDU,
WARD VII, KODUNGALLOOR P.O.,
THRISSUR-680664.
2. K. S. R. T. C.,
REPRESENTED BY ITS MANAGING DIRECTOR,
THIRUVANANTHAPURAM-695001.
3. NEW INDIA ASSURANCE CO. LTD.,
REPRESENTED BY ITS MANAGER,
ALAPPUZHA-688001.
R3 BY ADV. SRI.JOY JOSEPH (MANAYATHU)
SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.
SRI.A.A.ZIYAD RAHMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.Harilal,J.
====================================
M.A.C.A.No.3677/2017
====================================
Dated this the 7th day of March, 2018.
JUDGMENT
1. The appellant is the petitioner/claimant in O.P.(MV)No.1332/2011 on the files of the Motor Accidents Claims Tribunal, Alappuzha. The aforesaid original petition was filed by him, under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries suffered by him, in a road traffic accident. According to him, on 29.8.2011, at about 5.45 p.m., while he was sitting in a motor cycle, resting his leg on the ground, the offending KSRTC bus, driven by the 1st respondent, owned by the 2nd respondent and insured with the 3 rd respondent Maca3677/2017 -:2:- dashed against the motor cycle and he was thrown down, causing serious injuries, which resulted in the amputation of one of his legs below the knee. The accident was caused by the rash and negligent driving of the KSRTC bus, by the first respondent. He claimed `11,00,000/- as compensation from the respondents.
2. The respondents opposed the said application, disputing the quantum of compensation and the cause of accident, but admitted the coverage of the insurance policy. After considering the evidence on record, the Tribunal passed the impugned award, granting `9,03,960/-, as compensation to the appellant. The inadequacy and correctness of the quantum of compensation are assailed in this appeal.
3. Heard the learned counsel for the appellant and Maca3677/2017 -:3:- the learned counsel for the respondents.
4. The sum and substance of the argument advanced by the learned counsel for the appellant is that the monthly income and the quantum of compensation determined by the Tribunal, under the heads, compensation for permanent disability and loss of earnings, pain and sufferings, loss of amenities, are inadequate and require enhancement.
5. Per contra, the learned counsel for the inusrance company advanced arguments, to justify the quantum of compensation determined under the aforesaid heads. According to the learned counsel, the monthly income determined by the Tribunal is just and reasonable, in the absence of convincing evidence, to prove the exact income of the appellant.
Maca3677/2017-:4:-
6. The point to be considered is, whether the Tribunal is justified in determining the monthly income and the quantum of compensation, under the aforesaid heads of claim.
7. According to the appellant, he was a painting and polishing worker at the time of accident and he was earning a monthly income of `8,000/-. It is true that the FI statement given by his wife on the next day of the accident would show that the appellant was a spray painting worker and the same is not disputed by the insurance company. But, going by the impugned judgment, it could be seen that no evidence has been adduced, to prove his exact earnings per month. In the absence of evidence to prove the exact monthly income of the appellant, the Tribunal is justified in Maca3677/2017 -:5:- taking the monthly notional income.
8. Is the Tribunal justified in fixing `5,000/-, as the monthly notional income? In Ramachandrappra v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [2011 (13) SCC 236], the Supreme Court held that in the case of an accident that occurred in the year 2004, `3,500/- to `4,500/- can be taken as the monthly income, in the absence of convincing evidence to prove the exact income. In the instant case, the accident has occurred in the year 2011. Having regard to the long passage of five years after 2004 and the consequential decrease in the money value and the steep hike in the income of the labourers, the Tribunal is not justified in determining `5,000/-, as the monthly income and the monthly income would Maca3677/2017 -:6:- stand enhanced to `7,000/-. Consequently, the appellant is given `42,000/- (7,000 x 6), as compensation for loss of earnings for six months.
9. Indisputably, it has come out in evidence that his right leg below the knee was amputated and the medical board has issued Ext.A12 disability certificate, stating that he has disability at 70%. It is to be remembered that he is a painting worker, who usually works in a standing position. So, as rightly found by the Tribunal, he would find it difficult to work in future, after amputation. In the above view, loss of future prospects in the income at 30% has to be added towards the monthly income fixed above. So, for calculating the loss of permanent disability, his monthly income, Maca3677/2017 -:7:- including loss of future prospects, would stand fixed at `9,100/- (7,000+2,100). Consequently, the appellant is given `10,70,160/-, as compensation towards permanent disability (9,100 x 12 x 14 x 70/100).
10. Coming to compensation for pain and sufferings and loss of earning power, the appellant is given `50,000/- each. In view of the duration and nature of treatment and the disability certified by the Medical Board, the Tribunal is justified in granting `50,000/- each, towards pain and sufferings and loss of amenities. The compensation granted under other heads are just and reasonable and there is no circumstance, warranting any interference in this appeal. Thus, the appellant is given an additional compensation of `3,17,760/-. All Maca3677/2017 -:8:- other findings and directions of the Tribunal would stand undisturbed and operative. It is needless to say, the entire compensation would carry interest, as stipulated by the Tribunal. The third respondent insurance company shall deposit the entire additional compensation within three months. The appellant is allowed to withdraw the additional compensation.
11. The MACA is disposed of accordingly. All the pending interlocutory applications will stand closed.
Sd/-
K.Harilal, Judge sl.
//True copy// P.S. To Judge