Anithakumari and others v. Moosa V. and The New India Assurance Co. Ltd.

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 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938 MACA.No. 2301 of 2010 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.2110/2003 of PRL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 24-04-2008 ## APPELLANTS/PETITIONERS: ------------------------------ 1. ANITHAKUMARI, W/O. LATE SREEJULAL, AGED 23 YEARS, 2. SREYA (MINOR), AGED 2½ YEARS, - D/O. LATE SREEJULAL, DATE OF BIRTH 30.01.2003, REPRESENTED BY GUARDIAN ANITHAKUMARI, IST APPELLANT. 3. B.ARUNLAL, S/O. LATE SREEJULAL, 35 DAYS, D.O.B. 12.5.2003, REPRESENTED BY GUARDIAN ANITHAKUMARI, IST APPELLANT. 4. SREEDHARAN, S/O. KORU, AGED 55 YEARS, 5. JANAKI, AGED 52 YEARS, W/O. SREEDHARAN, (ALL ARE RESIDING AT KAMMANAPURATH, P.O.ERNHIKKAL, KOZHIKODE). BY ADVS.SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. MOOSA V., VAZHAYIL HOUSE, MADAVOOR P.O., NARIKKUNI, KOZHIKODE, PIN-673 583. 2. THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, SHAFEER COMPLEX, 6/975,, OPP. YMCA, KANNUR ROAD, KOZHIKODE HEAD POST OFFICE, PIN-673 001. R2 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------M.A.C.A.No.2301 of 2010 ------------------------------------Dated 30[th] November, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The legal heirs of one Sreejulal who died in a motor vehicle accident preferred this appeal aggrieved by and dissatisfied with the quantum of compensation granted by Principal Motor Accident Claims Tribunal, Kozhikode as per the judgment and award dated 24.4.2008 in O.P.(M.V)No.2110 of 2003. The unfortunate incident in which he lost his life occurred on 3.7.2003. On that fateful day, Sreejulal was driving an autorickshaw bearing Reg.No.KL.11/H-3119. It was hit by a lorry bearing Reg.No.KL.11-8092 and thereupon, it lost its control and hit against another bus bearing Reg.No.KL.11/P-4506. Sreejulal sustained injuries and succumbed to them from the hospital on the same day itself. It is in the said circumstances that the above mentioned claim petition was filed under Section 166 of the Motor Vehicles Act seeking a total compensation of 8,00,000/-. The Tribunal as per the impugned₹ award granted a total compensation of 3,23,499/- with interest at the₹ rate of 7% per annum from the date of petition till realisation. As noticed hereinbefore, it is seeking enhancement of compensation that M.A.C.A.No.2301/2010 2 the captioned appeal has been preferred. 2. We have heard Adv.Sri.V.S.Chandrasekaran, the learned counsel for the appellants and also Adv.Sri.V.P.K.Panicker, the learned counsel appearing for the 2[nd] respondent insurance company. 3. There is no dispute regarding the accident, the cause of the accident as also the liability to indemnify the insured owner. In such circumstances, we do not think it essential to issue notice to the first respondent and therefore, issuance of notice to the first respondent is dispensed with. Now, what survives for consideration is whether or not the appellants are entitled to get enhanced compensation. In the said circumstances, we are proceeding to consider the said question at the admission stage itself. 4. The main contention of the appellants is that the Tribunal erroneously fixed the multiplicand virtually as 25,000/- ignoring the₹ specific averments taken up in the claim petition regarding the occupation and income of the deceased. It is submitted by the learned counsel for the appellants that it is the erroneous fixation of the multiplicand that deprived the appellants the `just compensation'. In M.A.C.A.No.2301/2010 3 the claim petition it was specifically averred that the deceased was a driver by profession and was earning 5,000/- per month. The learned₹ counsel for the appellants further contended that the Tribunal also granted only a meagre sums towards `funeral expenses' and `solatium'. Per contra, the learned counsel appearing for the 2[nd] respondent insurance company contended that taking note of the fact that the accident occurred in the year 2003 and also the failure on the part of the appellants to adduce evidence to establish their averments regarding the occupation and income, the Tribunal cannot be found fault with in fixing the annual income as 25,000/-. It is the further₹ contention that taking note of the fact that the accident occurred in the year 2003 the compensation granted under different heads also cannot be said to be too low warranting interference. 5. We will firstly consider the question whether the contention of the learned counsel for the appellants that the Tribunal fixed the multiplicand erroneously is correct or not. Obviously, the Tribunal fixed the annual income of the deceased as 25,000/-. On₹ going through the impugned judgment, it is evident that there is absolutely no discussion as to how the Tribunal arrived at 25,000/- as₹ the notional annual income. Though it is stated in the judgment that M.A.C.A.No.2301/2010 4 the said amount was fixed as the monthly income the calculation of compensation effected by the Tribunal would reveal that what was actually fixed was annual income and it was fixed as 25,000/-. True₹ that, even after taking up the contentions regarding occupation and income the appellants had not adduced any evidence to establish such contentions. In such circumstances, it cannot be said that the Tribunal went wrong in fixing the annual income notionally. But, then the question is whether the Tribunal is justified in fixing the notional annual income as 25,000/-. In this context, it is to be noted that the fact₹ that he was survived by his wife, two minor children and parents cannot be disputed. The learned counsel for the 2[nd] respondent contended that the 4[th] appellant who is the father of the deceased ought not to have been treated as the dependent of the deceased. There is substance in the contention as the 4[th] appellant was aged only 55 years at the time of the accidental death of Sreejulal and in the light of the decision of the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)).**_ In such circumstances, father of the deceased ought not to have been treated as a dependent. Even then, it is to be noted that the deceased was maintaining himself and a family consisting of his wife, two minor children and his mother. The accident occurred in the year 2003. He was then aged only 28 years. Taking M.A.C.A.No.2301/2010 5 into account all such relevant factors and also the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC**_ _**236)**_ for guidance, we are of the considered view that it is only proper and just to fix the monthly income as 4,000/-. In that context, it is to₹ be noted that in **Ramachandrappa's** case (supra) in respect of an accident occurred to a coolie in the year 2004 the Apex Court fixed the monthly income notionally as 4,500/-. The learned counsel for the 2₹ nd respondent also contended that the fixation of the multiplier as `18' also cannot be sustained in the light of **Sarla Verma's** case (supra). Going by the schedule given **Sarla Verma's** case (supra) and taking into account the age of the deceased there is force in the said contention and the multiplier ought not to have been taken as `18' instead, it ought to have been taken as `17'. In the light of the decision in **Sarla Verma's** case (supra) while considering deduction to be made towards personal expenses while computing compensation for loss of dependency the number of dependents has to be taken into consideration. Evidently, in this case, there are four dependents. In such circumstances, in the light of the decision of the Apex Court only 1/4[th] of the income ought to have been deducted towards personal expenses. In this case, the Tribunal has deducted 1/3[rd] of the income. M.A.C.A.No.2301/2010 6 In such circumstances, taking into account the monthly income fixed by us viz., 4,000/- and taking the multiplier as `17' and the deduction to₹ be made as 1/4[th] the compensation payable under the head `loss of dependency' has to be re-assessed. On such re-assessment, an amount of 6,12,000/- (4000 x 12 x 17 x ¾) is payable. However, the₹ Tribunal has already granted an amount of 2,99,999/- under that₹ head. In such circumstances, the appellants are entitled to get an additional compensation of 3,12,001/- under that head. The Tribunal₹ has granted 15,000/- under the head `solatium'. We are of the view₹ that in fact, the first appellant was entitled to get compensation under the head `loss of consortium'. Going by the decision in **Rajesh v. Rajbir Singh (2013(3) KLT 89(SC))** a minimum of 1,00,000/- shall₹ be grated to the surviving spouse in a claim petition under Section 166 of the Motor Vehicles Act for the death of his/her spouse. In such circumstances, an amount of 85,000/- is granted additionally to the₹ first appellant, the widow of Sreejulal. In terms of the said decision, in the absence of evidence of higher expenses, a minimum of 25,000/-₹ shall be granted towards `funeral expenses'. The Tribunal granted only an amount of 2,000/-. In such circumstances, we are inclined to₹ grant 23,000/- additionally under that head. It is to be noted that the₹ 2[nd] appellant was aged only 2½ years at the time of the accident and M.A.C.A.No.2301/2010 7 the 3[rd] appellant was only suckling. At that time, the 3[rd] appellant was only 35 days' old and the mother of the deceased was aged 52 years. Taking into account all such aspects, we are inclined to grant an amount of 1,00,000/- towards `loss of love and affection' to appellants 2, 3₹ and 5. 6. In the light of the assessment/enhancement made by us as above, the appellants are entitled to get a total additional compensation of 5,20,001/- which is rounded off to 5,20,000/-. The₹ ₹ said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 2[nd] respondent insurance company is directed to deposit the said amount along with interest thereon within two months from the date of receipt of a copy of this judgment. It is made clear that the first appellant alone will be entitled to get the additional compensation of 85,000/- granted under₹ the head `loss of consortium' and appellants 2, 3 and 5 alone will be entitled to get the additional compensation of 1,00,000/- granted₹ under the head `loss of love and affection'. From the said amount, ₹ 40,000/- each shall be given to appellants 2 and 3 and 20,000/-₹ shall be granted to the 5[th] respondent. Over and above the amount of ₹ 20,000/- granted to the 5th appellant she will be entitled to get only a M.A.C.A.No.2301/2010 8 consolidated amount of 25,000/-. The balance amount, after such₹ allotment as mentioned above, is to be apportioned between appellants 1 , 2 and 3 in the ratio 4 : 3 : 3. The amount payable to appellants 2 and 3 shall be deposited in a Nationalized Bank till they attain majority. In the light of the order which we have passed in C.M.Appl.No.2997 of of 2010 while condoning the delay, the additional compensation will not carry interest for a period of 654 days. Before releasing the amount, the Tribunal shall take steps for realising the balance amount of court fee, payable by virtue of grant of enhanced compensation, in accordance with law. There will be no order as to costs. This appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS