Deepika P.P. and others v. Sasikumar and New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 4TH DAY OF JULY 2012/13TH ASHADHA 1934 MACA.No. 2935 of 2009 (B) -------------------------------OPMV.1248/2005 of M.A.C.T.,KOZHIKODE ------------- APPELLANT(S)/CLAIMANTS: ------------------------------ 1. DEEPIKA P.P.,W/O. (LATE), PRAHALADAN, - AGED 33 YEARS, CHEMMACHERI HOUSE, P.O. CHEVARAMBALAM KOZHIKODE. 2. ARYA (MINOR) D/O. (LATE), PRAHLADAN, AGED 9 YEARS, CHEMMACHERI HOUSE, P.O. CHEVARAMBALAM KOZHIKODE. - (REP. BY HER MOTHER & LEGAL GUARDIAN DEEPIKA) 3. BABY DEEPIKA. (MINOR) W/O. (LATE), PRAHLADAN, AGED 5 YEARS, CHEMMACHERI HOUSE P.O., CHEVARAMBALAM, KOZHIKODE. - (REP. BY HER MOTHER & LEGAL GUARDIAN DEEPIKA) 4. BALAN C. AGED 74 YEARS, CHEMMACHERI HOUSE,P.O. CHEVARAMBALAM, KOZHIKODE. 5. AMBIKA, W/O. BALAN, AGED 63 YEARS, CHEMMACHERI HOUSE, P.O. CHAVARAMBALAM, KOZHIKODE. BY ADV. SMT.K.V.RESHMI ## RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. SASIKUMAR, S/O. PADMANABHAN, - VARIYAMKANDY HOUSE, P.O. KALLAI, KOZHIKODE. MACA.No. 2935 of 2009 (B) -2- 2. NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G. ROAD KOZHIKODE. R2- ADV. SRI.A.A. ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.2935 of 2009 -----------------------------------------------Dated this the 4[th] day of July, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The appellants are the unfortunate widow and minor children of one Prahladan, a 37 year old business man who met with his death in a road traffic accident occurred on 05/11/04 while he was riding his motorcycle which collided with a bus coming from the opposite direction. Against the claim of ` 15 lakhs, the learned Tribunal awarded a sum of ` 3,83,325/- attributing 5% contributory negligence on the part of the deceased. The bus involved in the accident was driven by the first respondent and it was insured with the second respondent Insurance Company. As the second respondent admitted the policy of the offending vehicle, they were saddled with the liability of paying the compensation. M. A. C. A No.2935 of 2009 -2- 2. In this appeal, the appellants are challenging the adequacy of the compensation awarded by the learned Tribunal. 3. We have heard the learned counsel for the appellants and the learned counsel for the respondent Insurance Company. The impugned award was also perused. 4. The main grievance voiced against the award by the appellants is that they were not awarded adequate compensation for loss of dependency. The learned counsel for the appellants mainly relied on Ext.A4 Income Tax returns filed by the deceased which pertains to the assessment year 2003-04. As per Ext.A4, the returned income of the deceased was ` 10,828/- per month. The learned Tribunal fixed the monthly income of the deceased at ` 3,000/-. We have noticed that there is nothing on record to show that the business was stopped after the death of the deceased. Under the presumption that the business is still continuing, we fix the notional income of the deceased at M. A. C. A No.2935 of 2009 -3- ` 4,000/- taking into account the age of the deceased as well as the year in which the accident had occurred. The correct multiplier applicable to the age group of the deceased who was 37 years old at the time of the accident is 15 as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC). As the dependants are only three in number we deduct one third of the amount in consideration of the expenses which the deceased would have incurred had he been alive. When the dependency compensation is re-calculated it will stand enhanced to ` 4,80,000/-. As the learned Tribunal has awarded only a sum of ` 3,84,000/- under that head, the appellants become entitled to get an additional sum of ` 96,000/- under that head and we award that amount to the appellants. 5. It was submitted by the learned counsel for the appellants that the death occurred after three hours. Towards compensation for pain and suffering the learned Tribunal awarded a sum of ` 5,000/- only to the appellants M. A. C. A No.2935 of 2009 -4- which according to us is on the lower side. Thus we award an additional sum of ` 5,000/- towards pain and suffering. 6. We notice that no amount was awarded by the Tribunal towards loss of estate. Thus we award to the appellants a sum of ` 5,000/- towards loss of estate. 7. The Tribunal was miserly in awarding compensation for funeral expenses also. Only a sum of ` 2,500/- was awarded by the Tribunal. We award an additional sum of ` 2,500/- towards funeral expenses. 8. The first appellant who is the widow was aged 28 years old at the time of the accident. She is entitled to get a reasonable amount as compensation for loss of consortium. As the amount awarded under that head is only ` 10,000/we award an additional sum of ` 20,000/- towards loss of consortium to the first appellant. 9. Second appellant was only four years and the third appellant was six months at the time of the accident. As the second and third appellants lost their father at their tender M. A. C. A No.2935 of 2009 -5- age they are certainly entitled to get a just and reasonable compensation for loss of love and affection. Thus we award to the minor appellants 2 and 3 a sum of ` 40,000/- towards loss of love and affection. 10. Thus in total the appellants become entitled to get an additional sum of ` 1,68,500/- over and above what has been awarded by the Tribunal. 11. The learned Tribunal has reduced 5% on account of contributory negligence on the part of the deceased. We notice that the accident had occurred due to the collision between the motorcycle ridden by the deceased as well as the bus driven by the first respondent. We see justification in the finding of the learned Tribunal that there was 5% contributory negligence on the part of the deceased. So the additional amount awarded also shall stand reduced by 5%. That means the appellants will become entitled to get only a sum of ` 1,60,075/- over and above what has been awarded by the learned Tribunal. The additional amount awarded M. A. C. A No.2935 of 2009 -6- shall carry interest at the same rate specified in the impugned award. ## 12. The appeal is allowed. The impugned award shall stand modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE