Annamma and Others v. National Insurance Co. Ltd. and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MACA.No. 1544 of 2011 ----------------------OPMV.331/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... ## APPELLANTS: APPELLANTS/PETITIONERS ------------------------------------ 1. ANNAMMA, W/O.JOHN, PUNCHAYIL HOUSE, THOPRAMKUDY KARA, VATHIKUDY VILLAGE. 2. BENNY, S/O.JOHN, PUNCHAYIL HOUSE, THOPRAMKUDY KARA, VATHIKUDY VILLAGE. 3. MERCY, W/O.JOY, KUZHIKATTU HOUSE, MURICKASSERY, VATHIKUDY VILLAGE. 4. SOPHYA, W/O.SABU, CHAKKUMPURATHU HOUSE, THOPRAMKUDY KARA, VATHIKUDY VILLAGE. BY ADV. SRI.C.M.TOMY SRI.K.J.JOSEMON RESPONDENTS: RESPONDENTS/RESPONDENTS 2,3,5 AND 6 -------------------------------------------------- 1. NATIONAL INSURANCE CO. LTD., KOTTAYAM-686 001. 2. ABDUL BASITH, ARACKAKUDY HOUSE, NELLIKUZHY, KOTHAMANGALAM, ERNAKULAM-686 691. 3. LUKOSE @ BABU, S/O.GEORGE, ALANICKAL HOUSE, KANAKAKUNNU BHAGOM, THOPRAMKUDY KARA, VATHIKUDY VILLAGE, MARYGIRI POST-685 515. 4. ROSAMMA, W/O.BABU, ALANICKAL HOUSE, KANAKAKUNNU BHAGOM, THOPRAMKUDY KARA, VATHIKUDY VILLAGE, MARYGIRI POST-685 515. ADV. SRI.M.A.GEORGE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 1544 OF 2011 ============================** ## **Dated this the 17[th] day of October 2011** ## **JUDGMENT** ## **R.Basant, J.** Claimants are the appellants. They are wife aged 53 years and adult children of the deceased. The deceased was a person allegedly aged above 59 years on the date of the accident. Against a total claim of Rs.3 lakhs, the Tribunal awarded an amount of Rs.1,41,000/- as compensation as per the details given in paragraph 19 of the impugned award which we extract below: |**_Sl.No._**|**_Head_**|**_Amount_**<br>**_awarded_**|**_Basis – vital details_**| |---|---|---|---| |1|Transportation expenses|Rs.3,750/-|Documents produced| |2|Extra nourishment|...|Not allowed| |3|Damage to cloth etc.|..|| |4|Medical expenses|Rs. 162/-|| |5|Bystander expenses|Rs. 200/-|| MACA 1544/2011 2 |**_Sl.No._**|**_Head_**|**_Amount_**<br>**_awarded_**|**_Basis – vital details_**| |---|---|---|---| |6|Funeral expenses|Rs. 5,000/-|| |7|Pain and suffering|Rs.10,000/-|| |8|Loss of estate|Rs. 5,000/-|| |9|Loss of consortium|Rs. 5,000/-|| |10|Loss of love and affection||Not allowed| |11|Loss of dependency|Rs.1,12,000/-|(2000x12x7x2/3)| ||total|Rs.1,41,112/-|Rs.91,100/- with interest<br>at the rate of 7.5 % per<br>annum from 10/5/2005<br>till realisation| ||||| 2. Arguments have been advanced by the learned counsel for the appellants and the Learned counsel for the first respondent – Insurance Company who has been made entirely liable under the impugned award . 3. Called upon to explain and be specific, the learned counsel for the appellants raises various contentions to assail the impugned award. 4. First of all it is contended that the monthly income of the deceased reckoned by the Tribunal is grossly inadequate. The Tribunal had accepted Rs.2,000/- as the monthly income. MACA 1544/2011 3 Learned counsel for the appellant submits that the deceased was a loading and unloading worker as seen from Ext.A6 and in these circumstances in any view of the matter the Tribunal had grossly erred in accepting Rs.2,000/- as the monthly income. Learned counsel for the appellants points out that the presumption of prudence available under clause (vi) of the IInd Schedule as also the precedents in **Lata Wadhwa & Others. v. State of Bihar & Others,[A.I.R.2001 S.C. 3218]** and **Laxmi Devi v. Mohammad Tabbar[2008 A.C.J. 1488].** We are satisfied that Rs.3000/- must safely have been taken as the monthly income as asserted by the appellants in the claim petition. 5. Learned counsel for the appellants next contends that the amount awarded under the head of loss of dependency is inadequate. It is contended that 7 was adopted as the multiplier and that is not satisfactory. The deceased is shown to be a person aged above 60 years, going by the electoral identity card produced as Ext.A7. He is shown to be aged 54 years on 1/1/1998. The accident had taken place on 9/10/2004. The learned counsel for the appellants submits that the appellant must have been reckoned as a person aged 56-60 years and MACA 1544/2011 4 hence following the dictum in **Sarla Verma v. Delhi Transport Corporation[ (2009)6 S.C.C.121],** 9 must have been reckoned as the multiplier. 6. Learned counsel for the Insurance company points out that for persons aged above 60 years, 7 must be reckoned as the multiplier. At any rate, there is no satisfactory evidence available to show whether the appellant had or had not completed 61 years on the date of the accident. Specific evidence to throw light on the question has not been made available by the appellants, it is submitted. It is true that in **Sarla Verma(supra)** the range of age of the victim/deceased was given upto 15 years, 15-20 years , 21-25 years and so on till 61-65 years. For persons who have completed the age of 60 years, we are of the opinion that the horizontal entry 11 (61-65 years) is to apply. For persons who have not completed 60 years, the previous horizontal entry 56-60 is to apply. It is true that instead of showing 60-65 years in the relevant horizontal Entry 61-65 years has been shown, but the scheme is very evident. The IInd Schedule to the Motor Vehicles Act has been shown against vertical column 5 and that shows that scheme MACA 1544/2011 5 under IInd Schedule to the Motor Vehicles Act is intended to be followed. In any view of the matter, we are of the opinion that there is no satisfactory and cogent evidence to throw light on the question whether the deceased had completed the age of 61 years or not. In these circumstances, we are not persuaded to interfere with the computation of the multiplier at 7 by the Tribunal. 7. Learned counsel for the appellants then contends that for the first claimant, a woman aged 53 years only an amount of Rs.5,000/- has been awarded under the head of loss of consortium. This is inadequate and deserves to be enhanced, contends counsel. We agree. We are satisfied that Rs.15,000/can be accepted as the compensation for loss of consortium. 8. Under the head of love and affection, no amount has been awarded. We agree with the learned counsel for the appellants that an appropriate amount of compensation deserves to be awarded under the head of loss of love and affection. 9. On the basis of the above discussions, we come to the conclusion that the appellants are entitled to a further amount MACA 1544/2011 6 of Rs.76,000/- as per the details shown below in addition to the amount awarded by the Tribunal. 1)Loss of dependency :Rs.56,000/(3000x12x7x2/3=1,68,000/minus 1,12,000) 2)Loss of consortium :Rs.10,000/(Rs.15,000/- minus 5000) 3)Loss of love and affection :Rs.10,000/Total :Rs.76,000/============ 10. We are not persuaded to agree that the amount awarded under any other head deserves to be enhanced. 11. Learned counsel contends that proportionate cost has not been awarded in accordance with law. We agree that cost before the Tribunal is liable to be granted as held in **Jeena v. Satheesh Babu.K.[2011(3)K.H.C.728].** 12. In the result, a)this appeal is allowed in part. b)The appellants are found entitled to a further amount of Rs.76,000/- (rupees seventy six thousand only) in addition to the amount awarded by the Tribunal. MACA 1544/2011 7 c)We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the Tribunal. d)We further direct that proportionate cost before the Tribunal be paid as indicated in **Jeena(supra)** . d)All other directions of the Tribunal are upheld. ## **R.BASANT, JUDGE** ## **M.C. HARI RANI,JUDGE** ks. MACA 1544/2011 8