Chithra Devi W/o Sivaraj and others v. Muraleedharan S.O.K.S.Kutty and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938** **MACA.No. 2025 of 2006 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 1084/2001 of M.A.C.T.,PERUMBAVOOR DATED 29.03.2006** **APPELLANTS/CLAIMANTS:** **----------------------** **1. CHITHRA DEVI.W/O.SIVARAJ, AGED 39 YEARS,** **MADATHIPARAMBIL HOUSE,, P.D.ROAD,PALLURUTHY,COCHIN-6.** **2. PRIYA, AGED 16 YEARS (MINOR),** - **D/O.SIVARAJ,MADATHIAPRAMBIL HOUSE,,** - **P.D.ROAD,PALLURUTHY,COCHIN-6.** - **REPRESENTED BY HER, MOTHER AND NEXT FRIEND CHITRA DEVI,MADATHIPARAMBIL, HOUSE,P.D.ROAD,PALLURUTHY,COCHIN-6.** **3. PRABHU,AGED 16 YEARS (MINOR),** - **S/O.SIVARAJ,MADATHIPARAMBIL HOUSE,, P.D.ROAD,PALLURUTHY,COCHIN-6** - **REPRESENTED BY HER MOTHER AND NEXT FRIEND CHITRA DEVI, MADATHIPARAMBIL HOUSE, P.D.ROAD,PALLURUTHY,, COCHIN-6.** **4. PRAVEEN,AGED 13 YEARS, (MINOR)** - **S/O.SIVARAJH,MADATHIPARAMBIL HOUSE,,** - **P.D.ROAD,PALLURUTHY,COCHIN-6., REPRESENTED BY HER MOTHERR AND NEXT FRIEND CHITHRA DEVI,MADATHIPARAMBIL HOUSE,P.D.ROAD,, PALLURUTHY,COCHIN-6.** **5. MANOJ,S/O. ARUNACHALAM, MADATHIPARAMBIL HOUSE,P.D.ROAD, PALLURUTHY,COCHIN-6.** **6. SANTHAMANI,AGED 45 YEARS, W/O.KRISHNAN,PUTHANPURAKKAL HOUSE,, P.D.ROAD,PALLURUTHY,COCHIN.** **7. JAYARAJ M.A.,AGED 41 YEARS, S/O.ARUNACHALAM,MADATHIPARAMBIL HOUSE,,** - **P.D.ROAD,PALLURUTHY,COCHIN-6.** **8. AYYAPPAN M.A.,AGED 36 YEARS,** **S/O.ARUNACHALAM,, MADATHIPARAMBIL HOUSE,,** - **P.D.ROAD,PALLURUTHY, COCHIN-6.** **BY ADV. SRI.T.MADHU** ## **RESPONDENTS/RESPONDENTS:** - **--------------------------** ## **1. MURALEEDHARAN,S.O.K.S.KUTTY,** - **C-2/6B ACHARAYA NIKETHAN DELHI-92** **2. AFSAL BABU P.A.,** - **S/O.ABDUL SALEEM,, SHAFIQUE MANZIL,HMT COLONY,, KALAMASSERY.** **3. THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE NO.6,1201 NEW DELHI.** **R3-BY SMT. K.S. SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.2025 of 2006 ....................................................... Dated this the 8[th] day of April, 2016. ## **O R D E R** ## **K. RAMAKRISHNAN, J:** The claimants in OP(MV)No.1084 of 2001 on the file of the Motor Accidents Claims Tribunal, Perumbavoor are the appellants herein. The wife, children, mother and one brother of deceased Shivaraj filed the claim petition for compensation for the death of their breadwinner, who died in a motor vehicle accident occurred on 27.5.2001. According to the claimants, the deceased Shivaraj was riding on his motor cycle bearing registration No.KL-7AA 1741 from Aluva to Companypadi through Aluva-Ernakulam National Highway and when he reached Companipadi at 11.45 a.m, he took U turn after following the procedure and at that time, a Maruthi car bearing registration No.DDB 7035 driven by the second respondent, owned by the first respondent and insured with the third respondent came and hit against the motor cycle driven by the deceased. He suffered severe injuries and he was taken to the hospital and died on 30.5.2001 while he was undergoing the treatment. The deceased was conducting a dairy farm and getting a monthly income of Rs.6,000/- per month. The claimants claimed a sum of Rs. 8 Lakhs as total compensation on various heads. 2. During the pendency of the proceedings, the mother of the deceased namely the 5[th] petitioner died and her legal heirs were impleaded as additional petitioners 7 to 9 as per order in I.A.No.1681 of 2003 before the tribunal. 2 M.A.C.A.No.2025 of 2006 3. Respondents 1 and 2 remained absent. The third respondent appeared and filed counter admitting the insurance of the Maruti car with registration No.DDB-7035, but denied the allegation that the accident occurred due to the negligence of the second respondent. According to them, the accident occurred due to the negligence of the deceased himself. They denied occupation, income etc of the deceased and dependency of the petitioners. According to them, the total compensation claimed is exorbitant and they prayed for dismissal of the application. 4. The first petitioner was examined as PW1 and Exts.A1 to A13 series were marked on their side. No evidence either oral or documentary adduced on the side of the respondents. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the Maruti car, by the second respondent and awarded a total compensation of Rs.2,97,260/- on various heads as follows: Loss of dependency :Rs.2,30,400/Transportation charges :Rs.3,000/Funeral expenses :Rs.3,000/Damage to clothings :Rs.250/Medical expenses :Rs.19,110/Extra nourishment :Rs.500/Nursing assistance :Rs.1,000/Pain and sufferings :Rs.10,000/Loss of consortium :Rs.15,000/- 3 M.A.C.A.No.2025 of 2006 Loss of love and affection :Rs.15,000/-------------Total :Rs.2,97,260/========= making respondents 1 to 3 jointly and severally liable to pay the amount and directed the third respondent to deposit the amount with 7% interest from the date of petition till payment. Dissatisfied with the quantum of compensation awarded by the tribunal, the present appeal has been preferred by the appellants/claimants before the tribunal. 5. Heard Smt. Saradamani, learned counsel representing Sri. Madhu, learned counsel appearing for the appellants and Smt. K.S.Santhi, learned counsel appearing for the third respondent. Since insurance liability is admitted, notice to respondents 1 and 2 is dispensed with by this court by a separate order. 6. Learned counsel for the appellants submitted that the court bellow was not justified in fixing the monthly income of the deceased as Rs.1,800/- per month especially when they have produced documents to show that the deceased was conducting a dairy farm. Further no future prospects have been taken into consideration while fixing the monthly income of the deceased as well for awarding compensation under the head loss of dependency. Further, the dependents being more than three in number, the court below ought to have deducted only one fourth instead of one third for personal M.A.C.A.No.2025 of 2006 4 expenses of the deceased. Further the amount awarded under the heads loss of consortium, love and affection, pain and sufferings, funeral expenses are also on the lower side. So according to the learned counsel, the total compensation awarded is very less and the appellants are entitled to get enhancement. 7. On the other hand, learned counsel of the insurance company submitted that the petitioners have not produced any document to prove the income as such and in the absence of any convincing evidence on that aspect, the tribunal was perfectly justified in fixing the monthly income as Rs.1,800/- per month which cannot be said to be low in the year 2001. Further as per _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another** (2009(6)SCC_ _121),_ the multiplier ought to be 15 and not 16 taken by the court below. The tribunal had appreciated all the aspects and the total compensation awarded is just and proper. 8. Since the question of negligence has not been challenged by the respondents, we are not considering that aspect in this appeal. According to the claimants, the deceased was aged 39 years and conducting a dairy farm and getting Rs.6,000/- per month. It is true that the wife of the deceased was examined as PW1 and deposed of this fact. Further Exts.A9 to A12 were marked on the side of the M.A.C.A.No.2025 of 2006 5 petitioners to show that he is conducting a dairy farm and that will not be sufficient to assess the income as such. The fact that the deceased was conducting a dairy farm evidenced by Exts.A9, A10 and A12 paid licence fee for this purpose and Ext.A11 Professional Tax Receipt will go to show that the deceased was conducting a dairy farm and paying professional tax. Further he was looking after his wife, three minor children and mother as well. The accident occurred in the year 2001. Considering this aspect, we feel that the amount of Rs.1,800/- fixed by the court below as monthly income appears to be on the lower side and we fix the same as Rs.2,500/- per month. In the decision reported in _**Rajesh v. Rajbir Singh** [2013(3) KLT 89 (SC)]_ , the Supreme Court has held that even in the case of a person having no permanent income considering his age, the future prospects will have to be taken into consideration and between the age group up to the age of 40, the same has to be taken as 50% of the income. In the decision reported in _**Sarla Verma's**_ case (supra) it has been held that if the dependents are between 4 and 6, one fourth will have to be deducted for the personal expenses of the deceased and the multiplier for the age group upto 40 years is 15 and not 16 as taken by the court below. Further in _**Sarla Verma's**_ case (supra), if there is no evidence to show the tax paid, M.A.C.A.No.2025 of 2006 6 20% will have to be deducted towards income tax. If a recalculation is made on that basis, the appellants will be entitled to get Rs.4,05,000/-(2500x150%=3750x12x15x3/4x80%) and deducting Rs.2,30,400/- awarded by the tribunal under that head they will be entitled to get an additional amount of Rs.1,74,600/- and we award that amount under that head. 9. The tribunal had awarded only Rs.15,000/- under the head compensation for consortium to the wife. She was aged only 34 years at that time. She is a mother of three minor children aged 11 years and 9 years respectively. There is no possibility of remarriage. So the loss on account of the death of her husband at that age will be a great loss to her. In the decision reported in Rajesh's case (supra), the Supreme Court has held that in appropriate cases the compensation for loss of consortium should not be less than Rs. One lakh. Considering the age of the wife, we feel that she is entitled to get Rs. One lakh as compensation instead of Rs.15,000/- awarded by the tribunal and thereby she is entitled to get an additional compensation of Rs.85,000/- under the head loss of consortium. 10. In the decision reported in _**Kala Devi v. Bhagwan Das Chauhan (2015 (2) SCC 771).**_ , the Supreme Court has held that considering the age of the children, the compensation will have to be M.A.C.A.No.2025 of 2006 7 awarded for loss of love and affection for each child as they will be loosing the love and affection of the father for the remaining period of their life. In this case minor children are only 11 years and 9 years respectively and two of them being twins. They have lost the love and affection and guidelines of the father for the remaining period of their life. Considering this fact, we feel that Rs.75,000/- each can be awarded under the head loss of love and affection for the children. Since the mother is no more, we are not considering the question as to whether she has to be awarded compensation for love and affection separately. The tribunal also found that she is entitled to get only share from the amount awarded under section 140 of the Motor Vehicles Act and that amount was allowed to be shared between her legal heirs namely petitioners 6 to 9. So under the circumstances, there is no necessity to award any additional amount under the head loss of love and affection to her in this appeal. So the children will be entitled to get an additional compensation of Rs.2,10,000/- under the head loss of love and affection. 11.The tribunal has awarded only Rs.3,000/- under the head funeral expenses. Considering the fact that huge amount will be incurred for funeral expenses, we award an additional amount Rs.10,000/- under that head. The tribunal has awarded only 8 M.A.C.A.No.2025 of 2006 Rs.15,000/- under the head pain and sufferings, but he died after three days. He suffered severe head injury and other injuries as well. Considering these aspects we feel that another Rs.10,000- can be awarded under the head pain and sufferings suffered by the deceased. We are not inclined to award any amount on other heads as the tribunal has awarded just and fair compensation on other heads. The wife and children of the deceased are entitled to get an additional compensation of Rs.4,89,600/- over and above the compensation awarded by the tribunal which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. The additional amount awarded can be shared between appellants 1 to 4 equally. Three months time is granted to the insurance company to deposit the amount. With the above modification of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. **Sd/-** **P.N. RAVINDRAN, JUDGE.** **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge