Achuthan and others v. Sunil Padurang Khedkar and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938 MACA.No. 640 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 650/2011 of M.A.C.T.,KOZHIKODE DATED 29-11-2011 APPELLANT(S)/APPELLANTS: ----------------------- 1. ACHUTHAN - S/O.CHOYIKUTTY, VAZHAVALAPPIL, 324(16/177), P.O.ELATHOOR, KOZHIKODE. ## 2. THANKAM - W/O.ACHUTHAN, VAZHAVALAPPIL, 324(16/177), P.O.ELATHOOR, KOZHIKODE. ## 3. ANJU W/O.(LATE) AJEESH, 155, PURATHRATTIL THAZHATH, OLOPPARA, CHELANNUR, KOZHIKODE. 4. SWAPNA W/O.SAJUKUMAR, 484, THEANKANDI, ATHOLY, KOZHIKODE. BY ADV. SRI.A.V.M.SALAHUDDEEN RESPONDENT(S): -------------- 1. SUNIL PADURANG KHEDKAR, AGE AND FATHER'S NAME NOT KNOWN, AT/POST RANJANGAON GANAPATI, TAL-SHIRUR DIST, PUNE, MAHARASHTRA-411 001. 2. MANIKRAD PACHUNDKAR, S/O.BABAN RAO, RANJANGAON GANAPATI, TAL-SHIRUR DIST., PUNE, MAHARASHTRA-411 001. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE, COMMONWEALTH BUILDING, LAXMI ROAD, PUNE-411 030. R3 BY ADV. SMT.M.HEMALATHA ## R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **========================== M.A.C.A. No.640 OF 2012 ==========================** Dated this the 7[th] day of April, 2016 ## **JUDGMENT** _Ravikumar, J_ . This appeal is directed against award dated 29.11.2011 in O.P. (MV).No.650/2011 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The claim petition was filed by the legal heirs of one Ajeesh who died in a motor vehicle accident occurred on 28.10.2010. He was riding a motor cycle on that fateful day and at about 6.15 a.m when he reached Chakkorathukulam in Puthiyanirathu-Kozhikode Road, the offending vehicle viz., a truck bearing Reg.No.MH-12-CH-9396 dashed against his motorcycle and consequently, he sustained injuries. Immediately, he was taken to Medical College Hospital, Kozhikode and he succumbed to the **M.A.C.A.640/2012** 2 injuries on the same day itself. The appellants filed the claim petition seeking compensation of `8,00,000/- and considering the evidence on record and appreciating the rival contentions, the Tribunal passed an award for an amount of `5,91,500/-. The Tribunal did not consider the 4[th] appellant/4[th] petitioner as a dependent of the deceased and the amount awarded was directed to be divided among the other appellants equally after deducting, the compensation awarded under the head 'loss of consortium' viz., `10,000/- and that amount was directed to be paid to the 3[rd] appellant viz., to the widow. Despite such directions, no challenge was made against such directions in this appeal. It is feeling aggrieved and dissatisfied with the quantum of compensation that this appeal has been preferred seeking its enhancement. 2.We have heard the learned counsel for the appellants and the learned counsel appearing for the third respondent. There is no dispute with respect to the accident, insurance policy coverage of the **M.A.C.A.640/2012** 3 offending vehicle and also the cause of the accident as the negligence on the part of the driver of the truck viz., the second respondent. In such circumstances, the only point to be considered in this appeal is whether the appellants are entitled to get enhancement of compensation as claimed. 3.Various contentions have been raised by the appellant to mount challenge against the impugned award. It is contended that in the claim petition it was specifically stated that the deceased Ajeesh was the Customer Support Executive in M/s. Ganson Telecom and that, he was drawing a monthly salary of `7,900/-. The contention of the appellants is that despite such specific averments, the Tribunal fixed the monthly income of the deceased Ajeesh notionally at `4,000/- for the purpose of computing compensation payable under the head loss of dependency. That apart, it is contended that the Tribunal went wrong in deducting ⅓ of the income towards personal expenses while computing the compensation under the said head. It **M.A.C.A.640/2012** 4 is also contended that in the light of the decision of the Hon'ble Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** though the third appellant was entitled to get an amount of `1,00,000/- towards loss of consortium, only an amount of `10,000/was granted by the Tribunal. It is further contended that though in the light of the decision in **Rajesh** 's case, the appellants are entitled to get `25,000/- towards funeral expenses, only an amount of `5,000/- was granted. The compensation awarded towards loss of love and affection is also too meager in the light of the said decision, it is further contended. Towards damage to clothing and articles, though an amount of `2,000/- was claimed, only an amount of `500/- was granted. In such circumstances, it is contended by the learned counsel for the appellants that the amount of compensation granted under each of the aforesaid heads is liable to be enhanced. 4.Per contra, the learned counsel for the respondent submitted that all relevant aspects were properly taken into account by the **M.A.C.A.640/2012** 5 Tribunal and the appellants were granted just compensation as per the impugned award. In other words, it is contended that no appellate interference is called for. 5.We will firstly consider the question whether the contention of the appellants that the monthly income was meagerly fixed by the Tribunal got any substance and whether it is liable to be interfered with. True that in the claim petition, the appellants have averred that the deceased Ajeesh was working with M/s. Ganson Telecom and was drawing a salary of `7,900/-. Though such a contention was taken up, the appellants did not adduce any evidence to establish such contention with respect to the occupation and income. It is to be noted that the appellants had not adduced any oral evidence. In fact, Ext.A4 was not legally proved by examining the competent person of the aforesaid company. Considering the fact that M/s.Ganson Telecom is a private concern, the Tribunal cannot be found fault with, in not accepting and acting upon the said documents and fixing the **M.A.C.A.640/2012** 6 monthly income notionally. But the question is whether the fixation of the monthly income at `4,000/- warrants any interference. For considering the said question, certain aspects have to be taken into consideration. The deceased Ajeesh was aged 27 years at the time of the accident. The accident occurred on 28.10.2010. Though the appellants failed to establish the fact that the deceased Ajeesh was working in Ganson Telecom, there is absolutely no justification for fixing the monthly income of Ajeesh at `4,000/- taking note of his age and also the year of the accident especially in the light of the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236].** In that case, the accident occurred in the year 2004. Evidently, as per the said decision, the Hon'ble Apex Court fixed the monthly income of the claimant as a coolie notionally at `4,500/-. In such circumstances, taking note of the age of the victim and year of the accident and also the aforesaid aspects and factors revealed from the decision in **Ramachandrappa** 's case, we are of the view that the **M.A.C.A.640/2012** 7 monthly income fixed by the Tribunal is too meager. In such circumstances, we fix the monthly income of the deceased Ajeesh notionally at `5,000/-. The multiplier was adopted by the Tribunal with reference to the age of the deceased and it was correctly identified as 17 in the light of the decision in **Sarla Verma v. Delhi Transport Corporation** reported in **2010 (2) KLT 802 (SC).** Though there are four claimants, the sister who was then aged 30 years could not have been treated as dependent of deceased Ajeesh and in fact, the Tribunal did not treat her as a dependent of the deceased. As noticed hereinbefore, despite such a finding, no challenge has been made against it in the appeal. Taking note of the fact that there are three dependents, going by the decision in **Sarla Verma** 's case, ⅓ of the income was to be deducted and in fact, deducted for the purpose of computing compensation under the head loss of dependency. Since we have fixed the monthly income of the appellant notionally at `5,000/-, the amount payable under the head loss of dependency has to be re-assessed. On such re-assessment, the **M.A.C.A.640/2012** 8 appellants 1 to 3 are entitled to get an amount of `8,84,000/- under the said head. After deducting an amount of `5,44,000/- already granted by the Tribunal, the appellants are entitled to get `3,40,000/additionally under the head loss of dependency. Towards loss of consortium, the Tribunal has granted only an amount of `10,000/-. In the decision in **Rajesh** 's case (supra), the Hon'ble Apex Court held that in the case of death of a spouse, the surviving spouse is entitled to get a minimum amount of `1,00,000/- under the said head. No special circumstances entitling the third appellant to get an amount higher than `1,00,000/- has been brought out. In such circumstances, we are of the view that in the light of the said decision, the third appellant alone is entitled to get an amount of `90,000/- more under the head loss of consortium. Towards funeral expenses, the appellants claimed an amount of `6,000/- and the Tribunal granted an amount of `5,000/-. In the light of the decision in **Rajesh** 's case (supra), in the absence of evidence for higher amount at least an amount of `25,000/- has to be granted under the head funeral expenses. Since **M.A.C.A.640/2012** 9 the appellants have not adduced any evidence for grant of higher amount than `25,000/- towards funeral expenses, they are entitled only to get an amount of `20,000/- more towards funeral expenses. Towards loss of love and affection, though the appellants claimed `25,000/-, the Tribunal granted only an amount of `10,000/-. Taking note of the fact that appellants 1 and 2 are the parents of the deceased Ajeesh and the fourth respondent is his sister, we are of the view that the appellants 1, 2 and 4 are entitled to get `20,000/- more under that head and the total amount of `30,000/- shall be divided among appellants 1, 2 and 4 equally. Towards damage to clothing, only an amount of `500/- was granted. Taking note of the injuries sustained by the deceased Ajeesh it is evident that dresses worn by him must have been damaged in the accident. Therefore, we are inclined to grant `500/- more under the said head. In the light of the above discussions, the amount of compensation is enhanced by `4,70,500/-, or in other words, over and above the amount covered by the impugned award, an amount of `4,70,500/- is awarded as enhanced **M.A.C.A.640/2012** 10 compensation. The entire amount under the head 'loss of consortium' shall be paid to the third appellant, the widow and the entire amount under the head 'loss of love and affection' shall be divided equally among appellants 1, 2 and 4 only. The entire balance amount shall be divided equally among appellants 1 to 3 as ordered by the Tribunal. The third respondent is directed to deposit the enhanced amount of compensation within a period of three months from the date of receipt of a copy of this judgment with interest @ 8% per annum from the date of the petition till realisation failing which the amount remaining to be paid will carry interest @ 9%. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **MARY JOSEPH (JUDGE)** **spc/** **M.A.C.A.640/2012** 11 **M.A.C.A.640/2012** 12 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.640/2012** 13