Alphonsa Sindhu.M.A. vs Rajasree V.M., Dayanandan K.K., Shanmughan and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 18TH DAY OF MAY 2016/28TH VAISAKHA, 1938** ## **MACA.No. 641 of 2012 ()** **------------------------** ## **AGAINST THE AWARD IN OP(MV) 1390/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 27-09-2011** ## **APPELLANTS/PETITIONERS:** - **------------------------** **1. ALPHONSA SINDHU.M.A** - **@SINDHU, WIFE OF LATE BINU P.G. , AGED 28 YEARS** ## **2. JOYAL GEORGE (MINOR)** - **SON OF LATE BINU P.G., AGED 5 YEARS, REPRESENTED BY HIS NEXT FRIEND MOTHER ALPHONSA SINDHU M.A. @ SINDHU.** ## **3. GEORGE,** **FATHER OF LATE BINU P.G., AGED 64 YEARS** ## **4. ROSILY,** **MOTHER OF LATE BINU P.G., AGED 62 YEARS** **(ALL THE APPELLANTS ARE RESIDNG AT PAKOLIL HOUSE, KUMBALANGI SOUTH, KUMBALANGI P.O., KUMBALANGI VILLAGE, ERNAKULAM DISTRICT)** **BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER SRI.G.ARUN GOPAN SRI.J.VIVEK GEORGE** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. RAJASREE.V.M** - **W/O.DILEEP, 10/21, VEZHAKKATT HOUSE, PERUMPADAPPU, COCHIN-682 006.** **2. DAYANANDAN K.K.** - **S/O.KUNJAN, KADAVIPARAMBIL HOUSE, EAST O KELTRON, AROOR P.O., AROOR VILLAGE, PIN-688 534.** ## **MACA.No. 641 of 2012 ()** **3. SHANMUGHAN,** - **S/O.NARAYANAN, GOPURATHINKAL HOUSE, KUMBALANGI P.O., KUMBALANGI VILLAGE, COCHIN-682 007.** **4. NATIONAL INSURANCE COMPANY LIMITED,** **COCHIN DIVISIONAL OFFICE, &”AJAY VIHAR”, M.G.ROAD, COCHIN-682 016.** **R4 BY ADVS. SRI.K.B.RAMANAND R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A No.641 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of May, 2016** ## **J U D G M E N T** ## **K.P. Jyothindranath, J.** This appeal is preferred by the claimants in O.P.(M.V.) No.1390/2010 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The claimants are the wife, child and parents of the deceased, who died in a motor vehicle accident occurred on 14.7.2010. The above appellants moved a claim petition for a total compensation of Rs.15 lakhs before the Tribunal. Their case is that the deceased was a Chef in a catering company and was aged only 34 years. 2. The main dispute/grievance of the appellants is that the lower court only considered an income of Rs.4,000/for assessing the dependency. It is the submission that even though Ext.A11 salary certificate, which was issued by the employer of the deceased, was produced, it was not considered by the Tribunal. It is also the submission that on M.A.C.A No.641 of 2012 2 various heads like loss of consortium, funeral expenses, loss of love and affection etc. the amount awarded is inadequate, against the settled principles. 3. Learned counsel for the Insurance Company argued before us that even though Ext.A11 was produced before the court below, it was not seen proved and no evidence was adduced to substantiate their claim. It is the further submission that the Tribunal assessed the compensation considering all aspects so that an interference by this court is not warranted. 4. In this case, the negligence aspect is not disputed. The liability of the Insurance Company is also not disputed. The only dispute is in respect of the quantum of compensation assessed by the Tribunal. After going through the award passed, it is found that even though the deceased was aged only 34 years and the accident occurred in the year 2010, only an amount of Rs.4,000/- is seen considered as monthly income of the deceased. Surely, it is on a lower level. Considering the fact that our Apex Court, M.A.C.A No.641 of 2012 3 in a case that also where the accident occurred in 2004, considered an income of Rs.4,500/-, that also in a case where a coolie died, we are having the considered opinion that it will be only just and proper to consider Rs.6,000/- as the monthly income of the deceased for calculation purpose in this case. There is no legal evidence that he was permanently employed. Similarly he is not self employed. His further prospects also has to be taken into consideration. Under such circumstances, considering all aspects, it will be only just and proper to add 30% to the above figure on this count. Thus, a total sum of Rs.7,800/- is considered as his income for calculation purposes. From the said income, as four dependants/claimants are therein ¼ has to he deducted. Then the amount available for calculation will be Rs.5,850/-. The lower court adopted a multiplier of 17. The learned counsel for the Insurance Company submitted that only a multiplier of 16 will be available. As per the decision of the Apex Court in **Sarla** **Varma v. Delhi Transport Corporation [2010 (2) KLT** M.A.C.A No.641 of 2012 4 **802 (SC)]** the multiplier will be 16. Thus, the amount available on the head of dependency will be Rs.5850 x 12 x 16 = 11,23,200/-. From the said amount, the amount already awarded i.e. Rs.6,12,000/- has to be deducted. Thus the addition amount of compensation entitled on this head will be Rs.5,11,200/-. Apart from the same, on going through the other heads it can be seen that only an amount of Rs.7,500/- is seen awarded on the head of funeral expenses, which is also on a lower side. Thus, in addition to the same, a sum of Rs.17,500/- is awarded on this head. The claimants are the wife, minor son and parents of the deceased. As far as the compensation towards loss of consortium is concerned, only a sum of Rs.20,000/- is seen awarded to the wife of the deceased. In the light of the dictum laid down by the Apex Court in **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** an additional amount of Rs.80,000/- is granted on this head to the first appellant. Surely, she is a young girl aged only 26 years. The amount awarded on the head of loss of love and affection is also on a lower side. Considering M.A.C.A No.641 of 2012 5 the claimants includes a minor child of deceased who was aged only 3 years at the time of accident and further considering the age of the parents, we feel that an additional amount of Rs.40,000/- can be awarded on this head. Thus an additional sum of Rs.6,48,700/- (Rupees six lakhs forty eight thousand seven hundred only) is awarded. 5. The enhanced compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. 6. We hold that the Insurance Company will be liable to satisfy the award. There will be a direction to the Insurance Company to deposit the amount of compensation with interest, less the amount already deposited, before the Tribunal within a period of two months from the date of receipt of certified copy of judgment. The amount awarded on the head of loss of consortium i.e.Rs.80,000/- is entitled to the 1[st] petitioner. Similarly the additional amount of Rs.40,000/- awarded on the head of love and affection is entitled to the minor child of the deceased (2[nd] petitioner). M.A.C.A No.641 of 2012 6 The balance amount shall be apportioned in the same ratio as divided by the Tribunal in its original award. The additional compensation awarded in this judgment for the minor child shall be deposited in a nationalised bank till he attains majority. The amount will carry 8% interest from the date of petition. If the amount is not deposited within the stipulated period, it will carry 9% interest from the date of petition till realisation. The appeal is accordingly disposed of. There will no order as to costs in the appeal. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/