Beena Rani K.K. and others v. Abdul Nazar and The Royal Sundaram Alliance Insurance Co. Ltd. and Zainaba

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938 MACA.No. 2170 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 950/2010 of M.A.C.T., KOZHIKODE DATED 07-09-2011 APPELLANT(S)/PETITIONER: ------------------------------- 1. BEENA RANI K.K., W/O. LATE BHAGYANATHAN, AGED 35 YEARS RESIDING AT VALLISSERY HOUSE, P.O.CHEVARAMBALAM, KOZHIKODE. 2. AKSHAY (MINOR), AGED 13 YEARS D/B : 13.7.97, REP. BY HIS MOTHER BEENA RANI K.K., RESIDING AT VALLISSERY HOUSE, P.O.CHEVARAMBALAM, KOZHIKODE. 3. ANAGHA (MINOR), AGED 10 YEARS D/B: 10.4.01, REP. BY HIS MOTHER BEENA RANI K.K., RESIDING AT VALLISSERY HOUSE, P.O.CHEVARAMBALAM, KOZHIKODE. 4. BHASKARAN NAIR, AGED 80 YEARS RESIDING AT PALATT HOUSE, P.O.NALLALAM, KOZHIKODE-673 027. 5. AMMINI AMMA @ AMMINIKUTTY, AGED 77 YEARS W/O. BHASKARAN NAIR, RESIDING AT PALATT HOUSE, P.O.NALLALAM, KOZHIKODE-673 027. BY ADVS.SRI.AVM.SALAHUDEEN SMT.P.Y.SHEHEERA RESPONDENT(S)/RESPONDENTS: - -------------------------- 1. ABDUL NAZAR, AGED 38 YEARS, S/O. KOMUKUTTY, AT ALAYAM VEEDU, P.O.MANNARKKAD, KOTTAPPADAM, PALAKKAD-678012. 2. THE ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. 2ND FLOOR, AMRITHA TOWERS, OPP. MAHARAJAS GROUND, M.G.ROAD, KOCHI-682011. 3. ZAINABA, W/O. (LATE) C.N.MUHAMMED ALI, AGE NOT KNOWN, RESIDING AT CHAKKINGATHODY (H), P.O.CHETTIPARAMBU, KODUR, MALAPPURAM-670505. R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** ## **========================== M.A.C.A. No.2170 OF 2011 ==========================** Dated this the 8[th] day of August, 2016 ## **JUDGMENT** _Jyothindranath, J._ This appeal is filed by the claimants in O.P.(MV).No.950 of 2010 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The challenge is against the quantum of compensation awarded. 2.The relevant facts, for consideration of this appeal, are as follows:- A motor vehicle accident occurred on 13.12.2009 while deceased Bhagyanathan was travelling in an autorickshaw bearing Reg.No.KL-11-V-9533. The appellants are the wife, children and **M.A.C.A.2170/2011** 2 parents of the deceased. Their case is that, a bus hit against the autorickshaw and he sustained grievous injuries and succumbed to the same, on the very next day of the accident. Their further case is that the deceased was a Marketing Manager in a private firm who was earning an amount of `15,000/- per month. It is also their case that he was aged 44 years at the time of the accident. They claimed a total compensation of `10,00,000/-. The Tribunal, after considering the evidence, awarded a total compensation of `6,58,500/-. Aggrieved by the said award, this appeal is preferred. 3.When the appeal came up for hearing, the learned counsel for the appellants submitted before us that, the Tribunal considered only a monthly income of `4,500/- even though the accident occurred in the year 2009. It is on a lower side. It is the further submission that only a sum of `3,000/- is awarded towards funeral expenses. It is also brought to our notice that only a sum of `10,000/- each is awarded towards loss of consortium as well as loss of love and affection. It is **M.A.C.A.2170/2011** 3 the submission that an interference by this Court is warranted. 4.The learned counsel for the insurance company submitted before us that the Tribunal awarded a just compensation. It is also submitted that no evidence is adduced by the claimants to show that the deceased was actually employed as a Marketing Manager and was earning such an amount. No document is produced to show his educational qualification. Under such circumstances, no illegality is committed by the Tribunal in assessing the compensation. 5.After hearing the submissions and going through the award, we feel that a re-assessment is warranted in respect of the following heads. Surely, no evidence is adduced to substantiate the case of the appellants that the deceased was a business executive. Ext.A4 is the salary certificate. It can be seen that it is not properly proved. But at the very same time, it is to be remembered that the appellant was only aged 44 years at the time of the accident. Even in the case of a coolie, **M.A.C.A.2170/2011** 4 the Apex Court considered a monthly income of `4,500/-, that also in an accident occurred in the year 2004 [ **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** ( **(2011) 13 SCC** **236)].** Thus, it will only be just and proper to consider an income of `5,000/- per month in this case even though no relevant evidence is adduced regarding the occupation and income of the deceased. Considering the fact that the deceased was aged 44 years, his future prospects also have to be considered. The income will not remain stagnant even in the case of a coolie. Thus, we are inclined to consider 30% of his income towards future prospects. Thus, the amount available for consideration will be `6,500/- per month. It is also relevant to note that the learned counsel for the insurance company pointed out that compensation was assessed by the Tribunal applying the multiplier 15. In the light of the decision in **Sarla Verma** **v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the proper multiplier applicable will be 14. There is force in the said submission. It is also pertinent to note that the claimants are five in number. Then **M.A.C.A.2170/2011** 5 the amount that has to be deducted towards his personal expenses will be ¼ . Thus, the compensation towards loss of dependency will come to `8,19,000/- (6500x12x14x¾). The Tribunal awarded a sum of `6,07,500/- on this head. Thus, the appellants will be entitled for an additional sum of `2,11,500/-. The said amount is awarded. Apart from the same, it can be seen that towards funeral expenses, only a sum of `3,000/- is awarded. The appellants will be entitled for an additional sum of `22,000/- in the light of the dictum laid down by the Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** The said amount is awarded. At the time of the accident, the first claimant was aged only 35 years. Towards loss of consortium, only a sum of `10,000/- is seen awarded by the Tribunal. The first claimant will be entitled for an additional sum of `90,000/on this head in the light of the decision in **Rajesh'** s case (supra). Apart from the same, towards loss of love and affection, only a sum of `10,000/- is seen awarded. The children are the minor claimants. It is also brought to our attention that the parents were aged 79 and 76 **M.A.C.A.2170/2011** 6 years respectively at the time of the accident. Thus, a total additional sum of `90,000/- is awarded towards loss of love and affection. Thus, the appellants will be entitled for a sum of `4,13,500/- in addition to the compensation already awarded by the Tribunal. The said amount will carry 8% interest from the date of the petition till realisation. The insurance company shall pay the amount within two months of the date of receipt of a copy of this judgment. The amount of `90,000/- awarded towards loss of consortium will be exclusively entitled to the first appellant/first claimant. The compensation of `90,000/- awarded towards loss of love and affection shall be shared as ` 5,000/- each to the parents and the balance amount shall be shared equally in between the children. Thus, deducting the said amounts referred to above, the balance amount available shall be shared between the claimants in the same ratio ordered by the Tribunal, i.e., 2:2:2:1:1. It is also made clear that if the children are still minors, the amount shall be deposited in their names in a nationalised bank till they attain majority, with maximum benefits. The amount entitled to **M.A.C.A.2170/2011** 7 the major claimants shall be released. The Tribunal shall realise the court fee payable for the amount awarded over and above the claim. There will be no order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.2170/2011** 8 **C.T. RAVIKUMAR, J.** **JUDGMENT** ## **M.A.C.A.2170/2011** 9 **September, 2010**