Amina W/o Said @ Saidalavi and Others v. T. Muhammed and Oriental Insurance Co. Ltd. and C.P. Shihab

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937 MACA.No. 124 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 1275/2008 of M.A.C.T, OTTAPPALAM APPELLANT(S)/PETITIONERS 1 TO 3 & 5: ---------------------------------------------- 1. AMINA W/O.SAID @ SAIDALAVI. 2. C.P.FATHIMATH SUHARA D/O.SAID @ SAIDALAVI. 3. C.P.UMMU HABEEBA D/O.SAID @ SAIDALAVI. 4. C.P.MUNEER - S/O.SAID @ SAIDALAVI ALL ARE RESIDING AT CHEMMAYIPARAMBIL HOUSE VALIYAPARAMB, THATHANAMPULLI P.O., KULUKKALLOOR OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENT(S)/4TH PETITIONER: --------------------------------------- 1. T.MUHAMMED, S/O.ABDULLA MUSALIYAR RESIDING AT THATTARUTHODI HOUSE VALLAPPUZHA P.O.-679 336, PATTAMBI, OTTAPALAM TALUK PALAKKAD DISTRICT. 2. THE ORIENTAL INSURANCE CO.LTD. `PRANAVAM' BUILDING, MELE PATTAMBI, PATTAMBI P.O.-679 303. 3. C.P.SHIHAB, S/O.SAID @ SAIDALAVI RESIDING AT CHEMMAYIPARAMBIL HOUSE, VALIYAPARAMB THATHANAMPULLI P.O., KULUKKALLOOR, OTTAPALAM TALUK PALAKKAD DISTRICT-679 309. - R2 BY ADV. SRI.A.R.GEORGE BY SRI.GEORGE G.POOTHICOTE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH JJ.** ## **--------------------------------------------M.A.C.A.No. 124 OF 2012** **---------------------------------------------** Dated this the 21[st] day of January, 2016 ## **JUDGMENT** ## Ravikumar, J. The claimants 1 to 3 and 5, who are the legal heirs of one **Said @ Saidalavi,** who died in a motor vehicle accident, come up in appeal against the judgment dated 05.09.2011 in O.P. (MV)No.1275 of 2008 passed by the Motor Accidents Claims Tribunal, Ottapalam seeking enhancement of the amount of compensation awarded thereunder. The third respondent herein was the 4[th] claimant therein. 2. The causasive accident for the claim occurred on 19.06.2008 about 7.40 a.m. near Vandumthara 'Krastone Granite' crusher. The deceased was travelling on a motor cycle bearing Reg.No.KL-52-A-826 through Prabhapuram to Mulayankavu M.A.C.A.124/2012 2 road and when he reached at Vandumthara, in front of 'Krastone Granite' crusher, the autorickshaw bearing Reg.No.KL-9N-6853 driven by the first respondent, who is its owner, came from the opposite direction and knocked down his motor cycle. On sustaining severe injuries, Saidalavi was taken to Sevana Hospital, Pattambi and after giving first aid, he was referred to Aswini Hospital, Thrissur. He had been an inpatient for 45 days in that hospital and while undergoing treatment, he succumbed to the injuries on 04.08.2008. It is in the said circumstances that raising allegations of negligence and rashness against the first respondent, raising necessary averments to make the second respondent vicariously liable and to make the insurer liable to indemnify the first respondent, the above mentioned claim petition was filed. On the side of the appellants, the 5[th] petitioner therein/4[th] appellant herein who is the youngest son of the deceased was examined as PW1 and Exts.A1 to A12 were got marked. On the side of the respondents, no evidence, oral and M.A.C.A.124/2012 3 documentary, were adduced. It is after careful consideration of the arguments advanced and a careful appreciation of the evidence on record that the Tribunal passed the impugned award for a total amount of Rs.3,31,000/- with interest at the rate of 7% per annum from the date of petition till the date of realisation. The appellant seeks for enhancement of the quantum of compensation. 3. We have heard the learned counsel for the appellant and also the learned counsel for the second respondent. Since the policy was admitted, this Court as per order dated 25.01.2012 dispensed with issuance of notice to respondents 1 and 3. 4. It is contended by the learned counsel for the appellants that the amounts granted under different heads are on the lower side and that it is the improper assessment of compensation under different heads that resulted in denial of just compensation. In elaboration of the said contention, it is submitted that disregarding the binding decision of the Hon'ble Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** the Tribunal M.A.C.A.124/2012 4 has granted only an amount of Rs.10,000/- under the head 'loss of consortium' though a minimum of Rs.1 lakh is to be paid in terms of the said decision. It is also contended that the compensation payable under loss of dependency was improperly assessed. In the claim petition, it is specifically stated that the deceased Saidalavi was conducting a provisional store and was earning an amount of Rs.10,000/- per month. It is true that PW1 had deposed to the effect that his father was earning an amount of Rs.350/- per day. At the same time, it is to be noted that no evidence revealing the fact that he was actually conducting a provisional store was adduced by the appellants and in fact, there is no averment regarding the place where such a provisional store was being conducted in the claim petition and obviously, no oral evidence was also let in, in that regard. In the said circumstances, merely because the appellants claimed that the deceased was conducting a provisional store and was earning Rs.10,000/- per month, the Tribunal could not have accepted the claimed amount as the monthly income of the deceased. The learned counsel for the appellant further contended that even in the case of a M.A.C.A.124/2012 5 housewife, between the age group of 34-59 years, going by the decision of the Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218],** on equating their services to the family in terms of money, an amount of Rs.3,000/- has to be taken as monthly income. In the said circumstances, taking into account the fact that the deceased Saidalavi was managing the family, the monthly income ought to have been fixed at least at Rs.4,500/- and at any rate, fixation of the monthly income as Rs.2,500/- is too low. The claimants are the widow and the children of deceased Saidalavi and as against a claim of Rs.50,000/- towards loss of love and affection, an amount of Rs.10,000/- was awarded. It is contended that there was absolutely no justification for denying the compensation under the head loss of love and affection to the first appellant and further that the amount of compensation granted under the said head in the case of others are too meagre. It is further contended that no amount was granted under the head bystander's expenses though the deceased Saidalavi had been inpatient for 45 days before succumbing to the injuries. It is also contended that the evidence on record would reveal M.A.C.A.124/2012 6 that immediately after the incident, Saidalavi was taken to Sevana Hospital at Pattambi and after giving first aid he was referred to Aswini Hospital, Thrissur. Thereupon, he was taken to Thrissur and was admitted there. In the said circumstances, the amount granted under the head transportation expenses viz., Rs.3,000/- as against a claim of Rs.50,000/-, is too low. It is the further contention that though an amount of Rs.1,00,000/- was claimed towards pain and suffering, only an amount of Rs.10,000/- was granted. The learned counsel contended that Ext.A6 wound certificate would reveal that the deceased has sustained lacerated wound over Rt.fronto-parietal scalp, CT head (L) upper mid brain head, SAH, Rt. Parietal SDH, Rt.frontal contusion and Rt.frontal EDH. Considering the nature of the injuries he sustained and also the fact that he had been an inpatient for 45 days before succumbing to the injuries, there was absolutely no reason for the Tribunal to decline the amount claimed under the head pain and sufferings, it is contended. Under the head loss of estate, an amount of Rs.50,000/- was claimed and only an amount of Rs.5,000/- was granted and according to the learned counsel, it is also on the lower M.A.C.A.124/2012 7 side. It is also submitted that though an amount of Rs.2,000/- was claimed towards damage to clothing, no amount was granted. 5. Per contra, the learned counsel for the second respondentinsurer contended that the sums of compensation awarded by the Tribunal under different heads cannot be said to be unreasonable or inadequate in the light of the evidence on record and therefore, they call for no appellate interference. 6. As noticed hereinbefore, the main contention of the learned counsel for the appellant is that the Tribunal went wrong in taking the monthly income of the deceased Saidalavi only as Rs.2,500/-. We have already found that apart from the averments to the effect that the deceased was conducting a provisional store, no evidence whatsoever was adduced by the appellants to establish the said claim. The appellants did not produce any document to show that a license was issued in the name of the deceased for conducting the same and that apart, it is to be seen that there is no averment, at least, with respect to the place where such a provisional store was being conducted. In the said circumstances, solely because of the fact that the appellants have M.A.C.A.124/2012 8 asserted in the claim petition and also gave evidence to the effect that the deceased was conducting a provisional store, the said claim cannot be accepted and acted upon. Despite all such circumstances, we are of the considered view that the contentions raised by the learned counsel for the appellant founded on the decision of the Hon'ble Apex Court in **Lata Wadhwa** 's case (supra) as referred to earlier, merits consideration. Even in the case of a housewife belonging to the age group of 34-59 years, going by a moderated estimation and equation of her services in terms of money, the monthly income has to be taken as Rs.3,000/-. When that be so, in the case of a male who managed the affairs of a family consisting of his wife and children, the monthly income could not have been fixed below Rs.3,000/-. We are of the considered view that taking into account all such aspects, the monthly income of the deceased ought to have been taken as Rs.4,000/-. It is contended before us that the multiplier was correctly adopted by the Tribunal in the light of the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** and that the deduction of the income of the deceased towards M.A.C.A.124/2012 9 his personal and living expenses was also correctly taken in terms of the said decision. In the said circumstances, we are of the view that the compensation payable under the head loss of dependency has to be re-assessed following the same formula, but by substituting the refixed rate of monthly income. Based on such a calculation, the amount to be awarded under the head loss of dependency would come to Rs.2,88,000/-. In the said circumstances, an amount of Rs.1,08,000/- is to be given additionally under the said head. Challenge against the fixation of compensation under the head loss of consortium was raised by the appellants in the light of the decision of the Hon'ble Apex Court in **Rajesh** 's case (supra). Having carefully gone through the decision of the Hon'ble Apex Court in **Rajesh** 's case (supra), more particularly, paragraph 17 thereunder, we are of the view that the contention of the appellant has to be upheld. The Hon'ble Apex Court held that under the head loss of consortium, at least an amount of Rs.1 lakh has to be awarded to the surviving spouse concerned. In other words, an amount of Rs.90,000/- is to be given additionally under the head loss of consortium after subtracting M.A.C.A.124/2012 10 the amount of Rs.10,000/- granted by the Tribunal. 7. Under the head loss of estate, an amount of `50,000/was claimed as compensation. However, the Tribunal has granted only an amount of `5,000/-. We are of the view that towards the head loss of estate, the appellants are entitled to get an additional amount of `20,000/-. Under the head loss of love and affection, the appellants claimed an amount of `50,000/- as compensation. However, the Tribunal has awarded only an amount of `10,000/-. As noticed hereinbefore, appellants 2 to 4 and the third respondent are the children of the deceased. We are of the considered view that the amount granted under the head love and affection cannot be said to be an adequate compensation and that the appellants are entitled to get an amount of `25,000/thereunder. In other words, the appellants are entitled to get additionally `15,000/-under that head. Under the head expenses for religious ceremonies and funeral expenses, the Tribunal has granted only an amount of `5,000/-. In the light of the decision of M.A.C.A.124/2012 11 the Hon'ble Apex Court in **Rajesh** 's case (supra), at least an amount of Rs.25,000/- is payable under the said head. Hence, after deducting the amount which was already granted by the Tribunal, the appellants are entitled to get an amount of `20,000/more. In the light of the above discussions, the appellants are entitled to get an additional compensation of `3,02,250/-. 8. A perusal of section 168 of the M.V.Act would undoubtedly reveal that even after determining the amount of compensation which appears to be just, the Claims Tribunal is bound to specify the person or persons to whom compensation shall be paid. Thus, it is obvious that merely because a person has filed an application for compensation under section 166 M.V Act that by itself will not make him entitled to get the compensation and his entitlement has to be looked into, in accordance with law. In this case, evidently, the appellants 2 and 3 who are the daughters of the deceased, were aged respectively 30 years and 27 years at the time of the accidental death of their father. The M.A.C.A.124/2012 12 dictum laid down in **Sarla Verma** 's case would reveal that the decisive factor as regards entitlement to dependency compensation is dependency on the deceased at the relevant point of time. A scanning of paragraph 31 of the decision in **Sarla Verma** 's case would reveal that merely because a claimant is a legal heir of the deceased that by itself would not make him entitled to claim compensation under the head loss of dependency. Paragraph 31 of the said decision reads thus:- “Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, M.A.C.A.124/2012 13 because they will either be independent and earning, or married, or be dependant on the father.” Thus, evidently, the Hon'ble Apex Court had considered various aspects while considering the entitlement to compensation under the head loss of dependency. In this case, as noticed hereinbefore, appellants 2 and 3 were aged respectively 30 years and 27 years at the time of accidental death of their father. First claimant is the widow and claimants 4 and 5 are the other children of the deceased and they were then aged 22 years and 19 years respectively. There can be no doubt with respect to the entitlement of the first applicant viz., the widow for compensation under the head loss of dependency. We are also of the view that taking into account the age of claimants 4 and 5 at the relevant point of time, it has to be treated that they were also the dependents of their father. As regards appellants 2 and 3 at the age of 30 years and 27 years, in the absence of evidence to the contrary, they cannot be treated as dependants of the deceased. If M.A.C.A.124/2012 14 that be so, they are not entitled to get a share in the compensation under the head loss of dependency. There cannot be any doubt with respect to the fact that except the first applicant viz., the first appellant, none among the applicants are entitled to claim compensation under the head loss of consortium. Being the widow, certainly, the first appellant is entitled to get compensation under the said head. In the light of the aforesaid discussions, we are of the view that the appellants 1, 4 and 5 alone are entitled to get shares in the compensation under the head loss of dependency. Barring the aforesaid heads, the other appellants are also entitled to get their respective shares from the compensation under all the other heads. The said amount has to be apportioned among all the appellants/applicants in the proportion already decided by the Tribunal. The additional compensation of `3,02,250/- will carry interest at the rate of 8% from the date of petition till the date of realisation. The second respondent is directed to deposit the said amount within a period M.A.C.A.124/2012 15 of three months from the date of receipt of a copy of this judgment. There will be no order as to costs. Appeal is disposed of. **Sd/-** **(C.T. RAVIKUMAR) JUDGE** **Sd/-** **(MARY JOSEPH) JUDGE** **spc/**