Ajithakumari P. v. R. Venkata, S. Selvam & United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937** **MACA.No. 2645 of 2010 ---------------------** **OP(MV) 1274/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE DATED 22-01-2010** **----------------** ## **APPELLANT(S)/PETITIONERS IN THE OPMV:** **------------------------------------** **1. AJITHAKUMARI P., AGED 46 YEARS,** **W/O.LATE M.P.RAVEENDRANATHAN,** **2. SHIKMA RAVI M.P., AGED 24 YEARS, D/O.LATE M.P.RAVEENDRANATHAN,** **3. SHIKHIL RAVI M.P., AGED 19 YEARS,** **D.O.B. 05.12.1990, S/O. LATE M.P.RAVEENDRANATHAN,,** **(APPELLANTS 1 TO 3 ARE RESIDING AT "SREELAKSHMI" MALAYAMPARAMBATH, CHETTIPADI POST,, PARAPPANANGADI, MALAPPURAM).** **4. PADMINI P., AGED 72 YEARS, W/O. LATE SEKHARAN,** - **"USHA NILAYAM", MALAYAMPARAMBATH,, ARIYALLUR POST, MALAPPURAM.** **BY ADVS.SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN** ## **RESPONDENT(S)/RESPONDENTS IN OPMV: ----------------------------------** **1. R.VENKATA, AGE NOT KNOWN, S/O. N.V.RAMAKRISHNAN, 10851, GALI NO.1,, BALMIKI BASTI, REGHAR PURA, KAROL BAGH,, NEW DELHI-110 011.** **2. S.SELVAM, AGED 26 YEARS, S/O. J.S.SUNDARAM, 3/3 M.S.FLATS, SQ. SHAHJAHAN ROAD,, NEW DELHI-110 011.** **-2-** **-2-** ## **MACA.NO 2645 OF 2010** **--------------------** **3. THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE NO.1, 54, JANPATH,, NEW DELHI-110 011.** **R3 BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **P.N. Ravindran &** ## **K. Ramakrishnan, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - **M.A.C.A.No.2645 of 2010** - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] February, 2016 ## **JUDGMENT** ## **P.N. Ravindran, J.** The appellants are the claimants in O.P.(M.V.)No.1274 of 2006 on the file of the Motor Accidents Claims Tribunal, Kozhikode. They had in O.P.(M.V.)No.1274 of 2006 prayed for award of the sum of ₹27,00,000/- as compensation for the death of M.P.Raveendranathan, husband of the first appellant, father of appellants 2 and 3 and son of the fourth appellant. They had in the claim petition averred that, while the victim of the accident, who was employed as Branch Manager in South Malabar Gramin Bank, was travelling from Faridabad to New Delhi in a motor car owned by the first respondent, driven by the second respondent and insured with the third respondent, on account of the rash and negligent driving by the second respondent, it collided with another motor vehicle causing serious injuries to M.P.Raveendranathan and others. It is stated that M.P.Raveendranathan succumbed to the injuries sustained by him on the same day while undergoing treatment at New Delhi. 2. The appellants had in the claim petition averred that at the time of the accident the deceased was aged 45 years and he was _**M.A.C.A.No.2645 of 2010**_ 2 drawing a monthly salary of 18,020/-. Though all the respondents₹ were served, the third respondent alone entered appearance and filed a written statement contesting the claim petition. Though the insurer admitted the fact that the motor vehicle in which the victim was travelling was covered by a valid policy of insurance, it contended that gratuitous passengers are not be covered and therefore it is not liable to indemnify the insured. Before the Motor Accidents Claims Tribunal, no oral evidence was adduced on either side. The claimants however produced and marked Exts.A1 to A14 series. The Motor Accidents Claims Tribunal considered the rival contentions and held relying on the police records that the accident took place on account of the negligence of the 2[nd] respondent. The Tribunal thereafter proceeded to award the sum of Rs.10,04,359/- as compensation as detailed below: |**_Heads_**|**_Amount_**| |---|---| |Transport expenses|₹9,000/-| |Expenses for embalming|₹4,000/-| |<br>Funeral expenses|₹3,000/-| |Pain and suffering|₹5,000/-| |<br>Loss of estate|₹15,000/-| |Loss of love and affection|₹10,000/-| |Loss of consortium|₹10,000/-| |Loss of dependency|₹9,16,630/-| |Future prospect|₹31,729/-| |Total|₹10,04,359/-| The Tribunal also directed the respondent insurer to deposit the said sum together with interest at 7% per annum from the date of petition till the date of deposit as also the sum of 1,500/- awarded as costs.₹ The claimants have, dissatisfied with the quantum of compensation _**M.A.C.A.No.2645 of 2010**_ 3 awarded by the tribunal, filed this appeal. 3. We heard Sri.K.M.Jamaludheen, learned counsel appearing for the appellants and Sri.Mathews Jacob, learned Senior Counsel appearing for the third respondent. Sri.K.M.Jamaludheen, learned counsel appearing for the appellants submitted that it has come out in evidence and it is not in dispute that the victim of the accident was employed as Branch Manager in South Malabar Gramin Bank, earning a monthly income of 18,020/-. Learned counsel also submitted that a₹ certificate showing the last drawn salary of the victim of the accident is available in the records and therefore, the tribunal erred in going by the income tax return for the year 1991-2000 to hold that the annual income of the deceased was only 1,57,760/-. Learned counsel₹ submitted that in the light of the decision of the Apex Court in _**Sarla**_ _**Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009(6) SCC 121); the decision in _**Santosh Devi v. National Insurance Company Ltd. & Others**_ (2012 (6) SCC 421); the decision in _**Reshma Kumari v. Madan Mohan**_ (2009(13)SCC 422); _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] and _**Munna Lal Jain and Others v. K.Vipin Kumar Sharma**_ [2015(6) SCC 347] future prospects will also have to be taken into account while computing the loss of dependancy. Learned counsel submitted relying on the decision of the Apex Court in _**Rajesh v. Rajbir Singh**_ [2013(3) _**M.A.C.A.No.2645 of 2010**_ 4 KLT 89 (SC)] that the compensation awarded under the heads loss of consortium, loss of love and affection and funeral expenses is meagre and inadequate and is liable to be suitably enhanced. 4. Per contra, learned senior counsel appearing for the third respondent insurer submitted that the tribunal has awarded just and fair compensation, relying on the income tax returns filed by the victim of the accident and therefore, no exception can be taken to the impugned award. Learned senior counsel submitted that the compensation awarded under the various heads cannot by any stretch of imagination be said to be meagre or inadequate and therefore, no interference is called for. Learned senior counsel submitted that in any view of the matter the sum of 31,729/- awarded by the tribunal₹ towards future prospects has to be deducted from the enhanced compensation if any awarded by this court. 5. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record including Ext.A14. It is not in dispute that the victim of the accident was employed as Branch Manager in South Malabar Gramin Bank. The competent authority of that bank has in Ext.A14 certified that the last drawn salary of the victim of the accident was 18,020.02 per mensem. Since there is₹ proof of actual income of the deceased, we are of the opinion that this _**M.A.C.A.No.2645 of 2010**_ 5 court can proceed on the basis that his monthly income was 18,020/-₹ for the purpose of computing the compensation payable under the head loss of dependency. It is now well settled by a series of decisions of the Apex Court including the decision in _**Rajesh v. Rajbir Singh**_ (supra), that in the case of those who are employed on a regular basis 30% increase in the income towards future prospects can be factored into in cases where the victim was in the age group of 40-50. The deceased in the case on hand was aged 45 years. He was maintaining a family consisting of himself, his wife, two daughters and his mother. His mother/the fourth appellant passed away only in the year 2013. Applying the principles laid down by the Apex Court in **S** _**arla Verma**_ ## _**(Smt) and Others v. Delhi Transport Corporation and Another**_ (supra), as four members of his family were dependant upon him only 1/4[th] of the income is liable to be deducted towards the personal expenses of the deceased. As the victim had not attained 46 years of age and was in the age group of 41-45, the multiplier to be applied is 14. Computed applying the aforesaid principles, the compensation payable under the head loss of dependency will be 18,020x130%=₹ ₹23,426x12x14=₹39,35,560/-. 20% of the said amount namely ₹7,87,113.6 will have to be deducted towards income tax as held by the Apex Court in _**Rajesh v. Rajbir Singh**_ (supra). From the balance amount viz the sum of 31,48,448/₹ -, 25% will have to be deducted _**M.A.C.A.No.2645 of 2010**_ 6 towards personal expenses of the deceased. Computed on that basis, the compensation payable to the appellants/claimants under the head loss of dependency will be 23,61,340/-. The tribunal has by the₹ impugned award awarded only the sum of 9,16,630/- towards loss of₹ dependency. It has also awarded towards future prospects the sum of ₹31,729/-. After giving credit to the aforesaid payments, the appellants/claimants will be entitled to a further sum of ₹23,61,340-₹9,16,630-₹31,729=₹14,12,981/-. We accordingly award to the appellants/claimants, the sum of 14,12,981/- as compensation₹ under the head loss of dependency, over and above the compensation awarded by the Tribunal. 6. The Tribunal has by the impugned award awarded only the sum of 3,000/- towards funeral expenses; 10,000/- towards loss of₹ ₹ consortium and 10,000/- towards loss of love and affection. The Apex₹ Court has in _**Rajesh v. Rajbir Singh**_ (supra) held that in the absence of evidence to the contrary for higher expenses, a minimum amount of ₹25,000/- should be awarded under the head funeral expenses. We accordingly award to the appellants/claimants a further sum of ₹22,000/- as compensation under that head. The Apex Court has in the said decision also held that the court should award at least ₹1,00,000/- as compensation for loss of consortium to the surviving spouse. We accordingly award a further sum of ₹90,000/as _**M.A.C.A.No.2645 of 2010**_ 7 compensation under the head loss of consortium to the first appellant. The Tribunal has awarded only 10,000/- as compensation for loss of₹ love and affection to the children of the victim of the accident, namely claimants 2 and 3. As on the date of the accident the third claimant was a minor aged only 15 years. The eldest of the children was aged only 20 years. Taking cue from the decisions of the Apex Court in _**Rajesh v. Rajbir Singh**_ (supra) and _**Kala Devi and Others v. Bhagwan Das Chauhan and Others**_ (2015 (2) SCC 771), we are of the opinion that on a modest estimate, the sum of 50,000/- each can₹ be awarded to the children of the deceased. We accordingly award to the appellants/claimants a further sum of 90,000/- under that head.₹ The compensation awarded under the other heads does not in our opinion call for any enhancement. We accordingly allow the appeal in part and award to the appellants/claimants an additional sum of ₹14,12,981+₹90,000+ ₹90,000+₹22,000=₹16,14,981/-, as compensation over and above the compensation awarded by the tribunal. The third respondent insurer shall deposit the said amount together with interest at 9% per annum from the date of petition till the date of deposit within three months from today. The first appellant/first claimant will be entitled to 50% of the total amount deposited. The balance amount shall be shared equally by claimants 2 and 3, in view of the fact that the fourth _**M.A.C.A.No.2645 of 2010**_ 8 claimant is no more. One half of the amounts payable to each of the claimants shall be kept in fixed deposit in their names in a nationalised bank for a period of three years and the balance amount alone shall be disbursed to them. It will however be open to claimants 2 and 3 to move the tribunal for premature payment, if need arises namely, for the purpose of marriage, education or other purposes beneficial to the family. The parties shall suffer their respective costs in this court. _Sd/-_ ## **( P.N. Ravindran, Judge)** _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss _**M.A.C.A.No.2645 of 2010**_ 9 ## **P.N. Ravindran &** ## **K. Ramakrishnan, JJ.** ## - - - - - - - - - - - - - - - - - - - - - - - - - - - **C.M.Application No.3453 of 2010 and M.A.C.A.No.2645 of 2010** - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] February, 2016 ## **ORDER** ## **P.N. Ravindran, J.** ## _**C.M.Application No.3453 of 2010**_ Registry has reported that respondents 1 and 2 have not been served. They are the owner and driver respectively of the motor vehicle insured with the third respondent. Since the third respondent does not dispute its liability to indemnify respondents 1 and 2, we dispense with notice to respondents 1 and 2. Service complete. The prayer in this application is to condone the delay of 50 days in filing M.A.C.A. No.2645 of 2010. Heard. Not opposed. Allowed. ## **M.A.C.A.No.2645 of 2010** Admit. Sri.P.Jacob Mathew, learned counsel takes notice for the third respondent. Notice to respondents 1 and 2 dispensed with for the reason that the third respondent insurer does not dispute its liability to indemnify them. Service complete. _**M.A.C.A.No.2645 of 2010**_ 10 **( P.N. Ravindran, Judge)** **(K. Ramakrishnan, Judge)** ss