Ajitha P.S. and others v. Santosh Kumara, Jenumon C.G. and Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935** **MACA.No. 1481 of 2011 ( )** **-------------------------AGAINST THE AWARD IN OP(MV) NO. 1146/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA DATED 31-12-2010** **------------------** ## **APPELLANT(S)/PETITIONERS:** **------------------------------------------------** ## **1. AJITHA P.S., AGED 43 YEARS,** **W/O.DECEASED UDAYAPPAN, KALOOCHIRA HOUSE AVALUKUNNU PO, ARYAD SOUTH GRAMA PANCHAYATH WARD-I ALAPPUZHA, NOW RESIDING AT PALACHIRA VEEDU, KATTOOR PO MARARIKULAM (S) GRAMAPANCHAYAT, WARD NO.15 ALAPPUZHA.** ## **2. ANU K.UDAY, AGED 15 YEARS,** - **S/O.DECEASED UDAYAM, -DO-** - **REPRESENTED HIS MOTHER AJITHA P.S.** ## **3. ANJALI P.A., AGED 13 YEARS,** - **D/O.LATE UDAYAPPAN, -DO-** - **REPRESENTED HER MOTHER AJITHA P.S.** ## **4. PARVATHY, AGED 69 YEARS, W/O.LATE PALANI,** **(MOTHER OF DECEASED UDAYAPPAN), -DO-** **(APPLICANTS 2 AND 3 ARE MINORS REPRESENTED BY THEIR MOTHER AND LEGAL GUARDIAN, THE 1ST APPLICANT - AJITHA P.S. )** **BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS / RESPONDENTS :** **---------------------------------------------------** ## **1. SANTHOSH KUMARA,** - **S/O.SADASIVAN THARAYIL (H), ARYAD, AVALUKUNNU PO ARYAD GRAMAPANCHAYATH, WARD NO.1, ALAPPUZHA PIN - 688 001.** ## **2. JENUMON C.G., S/O.GOPI CHIRAYIL HOUSE, ARATTUVAZHY WARD, ALAPPUZHA, PIN 688 001.** ## **3. THE ORIENTAL INSURANCE CO. LTD.,** - **REPRESENTED BY ITS MANAGER,** - **CULLEN ROAD, MULLACKAL, ALAPPUZHA, PIN 688 010.** ## **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** ............................................................................ M.A.C.A.NO.1481 OF 2011 ........................................................................... Dated this the 4[th] day of December, 2013. ## **JUDGMENT** ## **Ramakrishnan, J.** The claimants in OP(MV)No.1146/2006 on the file of the Motor Accidents Claims Tribunal, Alappuzha are the appellants herein. The appellants, who are the wife, children and mother of deceased Udayappan have filed the application for compensation for the death of their breadwinner, who died in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle by the second respondent, owned by the first respondent and insured with the third respondent. After considering the evidence on record, the Tribunal awarded a total compensation of Rs.4,08,000/- on various heads as follows: Ambulance charge Rs. 3,000 Funeral expenses Rs. 5,000 Compensation for pain & suffering Rs. 5,000 Loss of love and affection Rs. 25,000 Compensation for consortium to the first petitioner Rs.10,000 Compensation for loss of M.A.C.A.NO.1481 OF 2011 2 dependency Rs.3,60,000 -----------------Total Rs.4,08,000 ======== 2. Dissatisfied with the quantum of compensation awarded , the appellants have filed this appeal seeking enhancement. 3. Heard the counsel for the appellants and the counsel for the insurance company. 4. The counsel for the appellants submitted that the deceased was aged only 40 years and he was a Mason by profession getting Rs.7,000/- per month. But the Tribunal has arbitrarily fixed his monthly income as Rs.3,000/- which is palpably low. Further, there are four dependants. The Tribunal has deducted one third which is incorrect. In view of the decision in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 SC), if the dependants, who are between 4 to 6, only one fourth has to be deducted of the personal expenses of the deceased. He died on the next day of the accident. So, the amount awarded under the head compensation for pain and suffering is also on the lower side. The amount awarded under the head funeral expenses is also palpably low. The first appellant was aged only 37 years at the time of M.A.C.A.NO.1481 OF 2011 3 death of her husband and there is no possibility of a remarriage as there are two minor children to be looked after by her. So the amount of Rs.10,000/- awarded under the head loss of consortium is also on the lower side. The amount awarded under the head loss of love and affection is also on the lower side. No amount was awarded under the head loss of estate. So, according to the counsel for the appellants, the appellants are entitled to get enhancement under all heads. 5. On the other hand, the counsel for the insurance company submitted that the multiplier taken is not proper as he has crossed 40 years. Further, in the absence of any evidence adduced by the side of the appellants to prove the same, the Tribunal was perfectly justified in taking the monthly income of Rs.3,000/- per month. The total compensation awarded is just and proper and no interference is called for at our hands. 6. We have considered the rival contentions of both the parties in detail. 7. The case of the appellants was that the deceased was a mason by profession and getting Rs.7,000/- per month. But no acceptable evidence has been adduced on the side of the M.A.C.A.NO.1481 OF 2011 4 appellants to prove his avocation or income. But considering the fact that the accident occurred in the year 2006 and also cost of living prevailing at that time , one can anticipate that the deceased will be getting Rs.3,000/- and further in future he will get increased income . Considering this aspect, we feel that the amount of Rs.3,000/- fixed by the Tribunal is in turn to be on the lower side and we enhance the same to Rs.4,000/- per month. As per **Sarla Verma** (cited supra), if the dependants are between 4 and 6, one fourth has to be deducted of the personal expenses of the deceased and not one third as done by the Tribunal. Since he was aged only 40 years, the proper multiplier as per the decision cited supra is 15 and that has correctly taken by the Tribunal. If a recalculation is made on the basis of the above inputs, the appellants will be entitled to get an amount of Rs.5,40,000/(4000x12x15x3/4) instead of Rs.3,60,000/- awarded by the Tribunal. Thus the appellants will be entitled to get an additional compensation of Rs.1,80,000/- under the head loss of dependency. 8. The Legislature has fixed Rs.2,500/- as funeral expenses in the year 1994 when the second schedule was introduced M.A.C.A.NO.1481 OF 2011 5 in the Motor Vehicles Act. So, considering the passage of time, we feel that the amount of Rs.500/- under the head funeral expenses is on the lower side. Since there is no evidence adduced on the side of the appellants to prove the rituals in connection with the funeral of the deceased, we feel that the funeral expenses can be enhanced to Rs.10,000/- from Rs.5,000/- awarded by the Tribunal. 9. The first appellant was aged only 37 years and she has to look after the two minor children. So there is no possibility of a remarriage for her. Her life has been shattered on account of the loss of her husband at this age. So considering this aspect, the amount of Rs.10,000/- awarded by the Tribunal under the head loss of consortium appears to be on the lower side and we enhance the same to Rs.50,000/-. Similarly the two minor children had lost their patents at the young age and the mother of the deceased also lost the support of her son at her old age. Considering these aspects, the amount of Rs.25,000/- awarded by the Tribunal appears to be on the lower side and we enhance the same to Rs.40,000/-. No amount was awarded under the head loss of estate. So, we award a conventional amount of Rs.10,000/- under that head. The M.A.C.A.NO.1481 OF 2011 6 deceased died one day after the accident. He may have suffered severe pain. So we enhance the compensation awarded under the head pain and suffering suffered by the deceased to Rs.10,000 from Rs.5,000/-. We are not inclined to give any amount under other heads as the amount awarded by the Tribunal is just and proper. 6. In all the appellants will be entitled to get additional compensation of Rs.2,55,000/- over and above what has been awarded by the Tribunal, which the third respondent insurance company is liable to pay with interest at the rate of 9% from the date of the petition till the date of payment. Since the 4[th] appellant is aged, the additional compensation awarded is directed to be shared among appellants 1 to 3 equally. The amount due to appellants 2 and 3 shall be deposited in a nationalized bank till they attain the majority with liberty for the first appellant to withdraw interest accrued on the deposit from time to time for the welfare of the minor children. Two months’ time is granted to the insurance company to deposit this amount as well. M.A.C.A.NO.1481 OF 2011 7 With the modification in the impugned award of the Tribunal, the appeal is disposed of. Sd/- **S.SIRI JAGAN, JUDGE.** **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S. to Judge