IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 MACA.No. 1988 of 2007() ----------------------- OPMV.117/1996 of II ADDL. M.A.C.T., KOZHIKODE .................... APPELLANT/3RD RESPONDENT IN THE OP: ---------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD., CHEROOTY ROAD, CALICUT, REPRESENTED BY THE AUTHORIZED SIGNATORY,THE ORIENTAL INSURANCE CO.LTD REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENTS/CLAIMANTS & 1ST RESPONDENT IN THE OP: -------------------------------------------------- 1. SANGEETHA, W/O. PUSHPARAJAN ALIAS PUSHPARAJ, THIRUMUGATH HOUSE, P.O. KOLATHARA, CHERUVANNUR, KOZHIKODE DISTRICT. 2. AMRUTHA (MINOR), D/O. PUSHPARAJAN, REPRESENTED BY HER MOTHER, SANGEETHA -DO- -DO-. 3. GOMATHI, M/O. PUSHPARAJAN -DO-DO-. 4. M. MURALEEDHARAN, S/O. CHANDRAN, "RATNA NIVAS", POOKAKADAVU ROAD, VELLIMADUKUNNU, CALICUT-12. BY ADV. SRI.VINOD SINGH CHERIYAN FOR R4 SRI.R.SUDHISH FOR R4 SRI.P.V.KUNHIKRISHNAN FOR R1 TO 3 SMT.N.S.REHNA FOR R1 TO 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- M.A.C.A.NO.1988 OF 2007 (D) ----------------------------------- Dated this the 22nd day of August, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the Insurance company questioning the quantum of compensation awarded by the Tribunal. Husband of the 1st appellant, at the age of 42, died in a motor accident on 11.10.1995 due to the negligence of the driver of the vehicle insured by the appellant Insurance company. They submitted that the loss caused cannot be compensated in terms of money and limited their claim to Rs.20 lakhs. According to the claimants, he was earning nearly 1200 U.S. Dollars per month, that will come nearly Rs.35,000/- per month considering the exchange value at the time of the accident and he used to sent Rs.1,000/- dollars every month to his house. He was working as a motor man (Merchant Navy) in a Norvejian Shipping Company named 'Barber Ship Management Limited'. Various documents were MACA.1988/07 2 produced to show that he was employed in the Merchant Navy. On behalf of the claimants, PW3, Subair, who was also doing the similar job, was examined and he also stated that the monthly income of the deceased was more than Rs.1000 dollars per month. The tribunal fixed the annual income as Rs.1,83,000/- and after deducting 1/3 rd for his personal expenses, the annual income fixed is Rs.1,22,000/-. Reasoning of the tribunal is extracted below: “Deceased Pushparajan was an employee in Merchant Navy and was earning handsome income at the time of his death. Ext.a4 is the certificate issued by the Principal Officer Mercantile Marine Department, Bombay. It is certified that Pushparajan is qualified the rank of Motorman. This certificate was issued on 6.7.1993. Ext.A5 is a certificate issued to Pushparajan stating that he has satisfactorily completed his 'survival at sea' course conducted at the Directorate General of Shipping. Ext.A6 is the offer letter issued by Barber Ship Management Limited to deceased Pushparajan on 19.5.1994. As per this letter, he was offered 772 U.S.Dollars per month. Ext.A7 is the certificate issued from the Ministry of Surface Transport, Government of India to deceased Pushparajan MACA.1988/07 3 regarding proficiency in survival craft. Ext.A8 is a certificate issued from the Ministry of Transport, Government of India regarding Pre-sea Training for Ratings to Pushparajan on 14.4.1978. Ext.A9 is a certificate issued to Pushparajan on Basic Fire Fighting. Ext.A10 is another certificate issued from Training Ship Rahaman regarding the survival at sea. Ext.A11 is the 'First Aid at Sea' certificate issued to deceased Pushparajan by National Union of Seafarers of India. Ext.A12 is the salary certificate of Pushparajan during the month of March, 1995. He was in employment as Motorman from 31.5.1994 to 4.3.1995. The gross earnings for nine months comes to 7,153.87 U.S.Dollars. The average monthly income was 795 dollars. Ext.A13 is an offer letter dated 29.2.1988 issued on behalf of Barbar Ship Management Limited to deceased Pushparajan. In the letter, they have offered 536 U.S.Dollars as monthly wages. Ext.A15 series are the passports of deceased Pushparajan which would go to show that he had gone for employment which would go to show that he had gone for employment several times and came back to India, after completing his employment. Ext.A16 is a certificate of the year 1986 regarding qualification and experience of the deceased. Ext.A17 is a Seaman's identity card of Pushparajan. Ext.A18 is an individual wage account form issued from M.v.Hyundal Pioneer to Maliyakkal Zubair. He was also a motorman. In MACA.1988/07 4 June 2006, the said person was getting a monthly salary of 1684 U.S.Dollars. Ext.A19 is the Seamen's identity card of the said Subair. Ext.A20 series are Allotment Advice issued from Barber Ship Management during the month of August to October and December 1994. It shows that 1000 U.S.Dollars used to sent by deceased Pushparajan to his Bank account at Calicut. Pass Book of deceased Pushparajan is marked as Ext.A14. This pass book shows that Rs.36,869 to Rs.30,652 reached his account during the respective months mentioned in Ext.A20 series. Exts.A18 and A19 were proved by examining Subair as PW3 who is also a motorman. According to his evidence, if there is over time he can earn more. They need not pay tax. Food and accommodation are free and they will get to and fro T.A. to the employees. He also deposed that when they are on leave they will be paid 300 U.S.Dollars per month. Though the learned counsel for the 2nd respondent cross examined PW3 nothing was brought out to discredit Exts.A18 and A19. From the available evidence, it is seen that deceased Pushparajan was a motorman in a ship and was earning more than 1000 Dollars per month. However, he was sending 1000 Dollars per month to his account evidenced by Exts.A14 and A20 series. The amount credited in the accounts of Ext.A14 account book shows that the amount varies from Rs.30,601/- to Rs.30,652/-. At any rate the exchange value of 1000 Dollars during that period can be considered as MACA.1988/07 5 Rs.30,500/-. If the deceased was alive he would have earned more. The Passport produced before the court shows that the deceased was not going for employment 12 months in a year. Considering the natural eventualities in life, risk of the job and the insecurity in the job, I am of the view that six months wages can be taken as average annual income for calculating the dependency. Thus, the annual income of the deceased comes to Rs.1,83,000/-. Deducting 1/ 3 rd amount for his personal expenses, the annual dependency of the family comes to Rs.1,22,000/-. It is the contention of the appellant that he was not having employment through out the year. Ext.A14 Bank account of the deceased shows that the total remittance of the employer for 19 months was only Rs.2,02,246.66, and Rs.10,644.56 is the average remittance to the house after deducting the personal expenses. Even accepting the contentions of the appellant Insurance company, Rs.10,644.56 will be his savings after his personal expenses. But the entire money need not be given back and he can earn money when he went for leave. The annual contribution to the home taken by the Tribunal is Rs.1,21,922/- after considering evidence adduced in this case MACA.1988/07 6 and his average income was taken after deducting 1/3 rd for personal expenses even though his food and accommodation were free in the ship. We see no ground to reduce the family contribution fixed by the Tribunal. Even though multiplier has to be fixed taking guidelines from the 2nd schedule, in United India Insurance Co. Ltd. Etc. v. Patricia Jean Mahajan & others ((2002) 6 SCC 281), it was held that when the multiplicand taken is very high, a lesser multiplier would be adopted. In this case, we adopt 13 as the multiplier instead of 15 as in the schedule. If that be so, compensation for loss of dependency will be Rs.15,84,986/- instead of Rs.18,20,000/-. Therefore, compensation will be reduced by Rs.2,35,014/-. We see no ground to interfere with the compensation granted under other heads. It is contended that 1st appellant was re-married. But according to DW1, PW4 told him that the 1st appellant had re-married the brother of the deceased, but PW4, denied the same. In any event, the deceased had left a child of two years old at the time of death. His parents are also claimants MACA.1988/07 7 apart from his wife. In any event, there is no evidence to show that the 1st appellant was re-married and they had a daughter in the marriage aged 2 years. Therefore, we see no ground to interfere with the award as the mere allegation (not proved) was that the 1st claimant was re-married. However, Rs.2,35,014/- reduced from the compensation amount will have to be reduced from the share of the 1st appellant and the balance amount awarded should be deposited by the appellant Insurance company with the same rate of interest as awarded by the Tribunal. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008