Point of Law: Motor Accident - Death - Liability of Insurance Company - Court not inclined to interfere with fixation of income done by Tribunal in this particular case. As such, the contention in this regard at instance of insurance company stands repelled -

JUDGMENT :

This appeal is at the instance of the original third respondent, the insurance company, in OP(MV) No.1339 of 2016 challenging quantum of compensation granted by the Tribunal as per award dated 07-04-2018. The original petitioners are arrayed as respondents herein.

2. Parties in this appeal will be referred to as to their status before the Tribunal for brevity and convenience.

3. Short facts :

One Lijeesh met with an accident on 7-2-2016 at about 9.30 pm while he was riding a motor cycle bearing registration No. KL 57 M 3963 from Thamarassery to Adivaram, when the vehicle collided with a car bearing registration No.KL M 3597. According to the petitioners, the accident was the contribution of the second respondent, the driver of the above car, thereby Rs.2 Crore was claimed as compensation by the legal heirs of the deceased under Section 166 of the Motor Vehicles Act.

4. Respondents 1 and 2 remained ex parte before the Tribunal. They were not made parties to this appeal.

5. Third respondent filed the written statement and admitted the policy. The accident as well as negligence were disputed. Similarly, quantum also was disputed.

6. The Tribunal adjudicated the matter along with OP(MV) No.1270 of 2017 and as per common award dated 7-4-2018 an amount of Rs.52,29,000/-was granted as compensation payable by the third respondent, insurer of the offending vehicle.

7. The third respondent insurance company filed this appeal mainly challenging the finding on negligence as well as the quantum fixed by the Tribunal. When the matter was taken up for hearing, the learned counsel for the insurance company fairly submitted that following the ratio in New India Assurance Co. Ltd. v. Pazhaniammal and Others [(2011(3) KLT 648]'s case, the negligence attributed against the deceased by the insurance company is not pressed as the finding was entered by the Tribunal on the basis of a police charge marked as Ext.A4. In view of the submission, there is no necessity to address the issue of negligence.

8. However, the learned counsel for the insurance company vehemently opposed the quantum of compensation awarded mainly attacking monthly income of the deceased fixed as Rs.25,000/- by the Tribunal without support of any evidence. According to the learned counsel for the insurance company, the original petitioners claimed Rs.1,00,000/- as monthly income of the deceased on the assertion that he was working as Porter in National Aviation Service, Ministry of Kuwait. However, as per Ext.A8 passport produced from the side of the original petitioners, Lijeesh was working as a Mason in the year 2014. Going by Ext.A8, it could be noticed that the deceased was working in Gulf as a Mason since 2014 and his profession as that of a Porter, as contended by the petitioners, was not established at all. In paragraph 14 of the award, the learned Tribunal discussed Exts.A7 and A8 documents while fixing monthly income of the deceased as Rs.25,000/-. Ext.A7 is the bank statement pertaining to the account of the first petitioner and the same was produced to prove that the deceased transferred amounts to her account. However, the Tribunal found that no periodical or regular transfer of fixed amounts to the account of the first petitioner to be gathered from Ext.A7. However, the Tribunal fixed the income as Rs.25,000/-.

9. While disputing the income, the learned counsel for the insurance company placed a decision reported in Valsamma v. Binu Jose (2014(1) KLT 10) to contend that the standards to be applied while assessing the income of a person who is not permanently employed in a foreign country would be in the context of Indian standards. I have gone through the decision. In para No.13, the Division Bench of this Court fixed the income of the deceased in that case during 2004 as Rs.5,000/-, taking note of the income of a painter during the relevant period as Rs.3000/-and by making some additions.

10. The learned counsel for the original petitioners submitted that the ratio i