GIRIJA and others v SANTOSH and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 14TH DAY OF MARCH 2016/24TH PHALGUNA, 1937** **MACA.No. 1893 of 2006 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 3395/2000 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR, DATED 27-12-2005** **APPELLANTS/PETITIONERS 1 TO 4::** **-------------------------------** **1. GIRIJA, W/O.LATE NARAYANAN.** **2. JIJI @ JIJI, D/O.LATE NARAYANAN.** **3. JISHA (MINOR),AGED 11 YEARS, D/O.LATE NARAYANAN.** ## **4. JITH (MINOR), AGED 15 YEARS, S/O.LATE NARAYANAN.** **(MINOR APPELLANTS 3 AND 4 REPRESENTED BY THEIR GUARDIAN MOTHER THE 1ST APPELLANT HEREIN)** **ALL RE RESIDING AT KAKKATT HOUSE, PANAYAMPADAM P.O. THRISSUR.** **BY ADVS..SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL** **RESPONDENTS/RESPONDENTS/5TH PETITIONER:** **--------------------------------------** **1. SANTHOSH, S/O. CHANDRAN, RESIDSING AT KAITHAYIL HOUSE, KADUKKASSERY, IRINJALAKUDA, THRISSUR DISTRICT.** **2. BIJU, S/O.CHANDRAN, RESIDING AT PUTHENPURAKKAL HOUSE, KOMBODINJAMAKKAL, P.O. THAZHEKKAD, THRISSUR.** **3. THE UNITED INDIA INSURANCE COMPANY LIMITED, CHALAKUDY, THRISSUR DISTRICT.** **4. AMMUKUTTY, W/O.LATE KUTTAN, RESIDING AT KAKKATT HOUSE, PANAYAMPADAM P.O. THRISSUR.** **R3 BY ADV. SRI.MATHEW JACOB SR. R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------ ## **M.A.C.A.No.1893 of 2006** ---------------------------------------------------Dated this the 14[th] day of March, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** The claimants in O.P.(M.V.)No.3395/2000 on the file of the Motor Accidents Claims Tribunal, Thrissur are the appellants herein. The appellants filed the claim petition for compensation for the death of their bread winner/deceased Narayanan @ Kuttamon, who died in a motor vehicle accident occurred on 19.04.2000. According to the claimants, the deceased was riding his bicycle and when it reached Thalore junction, the motor cycle (which is an unregistered motor cycle at the time of accident, but later it was registered), driven by the second respondent, owned by the first respondent and insured with the third respondent came at high speed and hit against the bicycle _**M.A.C.A.No.1893 of 2006**_ 2 driven by the deceased. He suffered severe injuries and taken to Medical College Hospital, Thrissur and succumbed to the injuries on 05.05.2000. He was working as a mason getting Rs.4,500/- per month. They claimed a total compensation of Rs.5,00,000/- on various heads. 2. The first respondent remained absent and second respondent though appeared had no written statement filed. 3. The third respondent appeared and filed written statement contending that even though Bajaj Caliber Motor cycle involved in the accident was insured with them, they are not liable to pay compensation as there was no accident occurred involving the said motor cycle. The unregistered motor cycle was not insured with the third respondent. So they are not liable to pay the compensation. They have also contended that the rider of the motor cycle was not having any driving licence at the relevant time. They prayed for dismissal of the application. Later they admitted that the vehicle was insured with the name of the first respondent. 4. Second petitioner was examined as PW1 and Exts.A1 _**M.A.C.A.No.1893 of 2006**_ 3 to A13 were marked on their side. No oral evidence was adduced on the side of the respondents, but Ext.B1 was marked on the side of the third respondent. They filed an application to cause production of the driving licence of the second respondent and it was allowed. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the motor cycle by the second respondent and awarded a total compensation of Rs.3,54,600/- on various heads as follows: |**_Heads_**|**_Amount_**| |---|---| |For treatment|₹5,100/-| |Bystanders expenses|₹2,000/-| |Funeral expenses|₹5,000/-| |Pain and suffering|₹25,000/-| |Transportation|₹1000/-| |Loss of estate|₹20,000/-| |Extra nourishment|₹1,000/-| |Damage to clothing|₹500/-| |Loss of dependeny|₹2,40,000/-| |Loss of consortium|₹25,000/-| |Loss of love and affection|₹30,000/-| |Total|₹3,54,600/-| making respondents 1 to 3 jointly and severally liable to pay the amount and directed the third respondent insurance company to deposit the amount with 7% interest from the date of petition till payment. Dissatisfied with the quantum _**M.A.C.A.No.1893 of 2006**_ 4 of compensation awarded by the tribunal, the present appeal has been preferred by the appellants/claimants before the court below. 5. Though the third respondent, insurance company had filed an independent appeal challenging their liability to pay the amount and not granting the right of reimbursement from the insured as M.A.C.A.1719/2006, this court by separate judgment today dismissed the appeal confirming the order, directing the third respondent to pay the compensation amount to the claimants and denying their right of recovery from the first respondent/insured. So notice to respondents 1 and 2 was dispensed by this court by a separate order today. 6. Heard Sri.Appu, counsel representing Sri.T.C.Suresh Menon, counsel appearing for the appellants and Sri.Mathews Jacob, senior counsel appearing for the third respondent. 7. The counsel for the appellant submitted that the deceased was aged 45 years, a mason by profession _**M.A.C.A.No.1893 of 2006**_ 5 getting Rs.4,500/- per month. But the court below had grossly fixed his monthly income as Rs.2,000/- which is inadequate and low. Further no future prospects have been taken into consideration by the court below while assessing compensation. The amount deducted for personal expenses of the deceased is also on the higher side. The amount awarded under the head loss of consortium, love and affection are also on the lower side. According to the learned counsel, the appellants are entitled to get enhancement on all heads. 8. On the other hand, the learned counsel for the insurance company submitted that the court below had liberally considered all the aspects and awarded just and proper compensation and no enhancement is called for. 9. Since there is no appeal filed against the question of negligence and this court has already dismissed the appeal filed by the insurance company as per separate judgment in M.A.C.A.No.1719/2006, we are not going on the question of negligence and liability of the insurance _**M.A.C.A.No.1893 of 2006**_ 6 company in this appeal separately. 10. The case of the claimants in the claim petition was that, the deceased was aged 45 years and mason by profession, earning Rs.4,500/- per month. Except the interested testimony of PW1/the second claimant, the son of the deceased, there is no other evidence adduced on the side of the claimants to prove this fact. However, the accident occurred in the year 2000. The deceased was aged 45 years, maintaining a family consisting of wife and three minor children. So the amount of Rs.2,000/- fixed by the court below appears to be on the lower side and we are inclined to fix the monthly income of the deceased as Rs. 2,500/- per month. 11. 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 persons having no permanent income, future prospects will have to be taken into consideration and for the age group between 40- 50, 30% will have to be added for future prospects. As per the decision of _**Sarla**_ _**M.A.C.A.No.1893 of 2006**_ 7 _**Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121), the multiplier applicable to the age group of 41-45 is 14, not 15 as taken by the tribunal. As per Sarla Verma's case (supra) in the case where dependants were four to six, the personal expenses will have to be deducted is only 1/4[th] and not 1/3[rd] as done by the tribunal. If a re-calculation is made on the above basis, the appellants will be entitled to get a compensation of Rs.4,09,500/- (2500x130% = 3250x12x14x75%) instead of Rs.2,40,000/- awarded by the tribunal under the head loss of dependency and thereby, they will be entitled to get an additional amount of Rs.1,69,500/- which we award under that head. 12. The tribunal had awarded only Rs.25,000/under the head loss of consortium. The deceased was aged 45 years at the time of the accident and the first claimant is only 33 years at the time of the death of her husband and there is no possibility of re-marriage as she has three minor children aged 14 years, 11 years and 9 years respectively. _**M.A.C.A.No.1893 of 2006**_ 8 In the decision reported in _**Rajesh v. Rajbir Singh**_ (supra), except in cases special reasons are possible, a minimum amount of Rs.1,00,000/- has to be awarded under the head loss of consortium. Considering the circumstances, we feel that an amount of Rs.1,00,000/- can be awarded under the head loss of consortium to the first petitioner instead of Rs.25,000/- awarded by the tribunal, thereby she will be entitled to get an additional amount of Rs.75,000/- under the head loss of consortium. The court below had awarded only Rs.30,000/- under the head loss of love and affection for the minor three children and the deceased mother, we feel it appropriate to confine that amount to the mother who is aged 79 years at the relevant time. The children were aged 14, 11 and 9 years respectively and they have lost the love and affection of their father and the guidance and upbringing by their father at their young age. So considering these aspects, we feel that an amount of Rs.50,000/- each can be awarded as compensation under the head loss of love and affection to each children, thereby _**M.A.C.A.No.1893 of 2006**_ 9 they will be entitled to get an additional amount of Rs.1,50,000/- under the head loss of love and affection, over and above Rs.30,000/- awarded by the tribunal. The court below had awarded only Rs.5,000/- under the head funeral expenses, we are inclined the enhance the same to Rs.10,000/-. We are not inclined to enhance any amount under other heads as the tribunal has awarded just and proper compensation under other heads. So the appellants will be entitled to get an additional compensation of Rs.3,99,500/- which we round off to Rs.4,00,000/-, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit this amount. Out of the additional compensation awarded, 50% of the amount can be shared equally by claimants 2 to 4 while the balance amount can be paid to the first claimant, the wife of the deceased. Out of that amount so apportioned, 50% of the amount awarded can be disbursed to the claimants and the balance amount can be deposited _**M.A.C.A.No.1893 of 2006**_ 10 in the names of the claimants 1 to 4 for a period of three years with liberty for them to move the tribunal for withdrawal of the amount showing the necessity and the tribunal considering the need and passing appropriate orders in that application at the relevant time. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **( P.N. Ravindran, Judge)** _Sd/-_ **(K. Ramakrishnan, Judge)** // True Copy// P.A. to Judge ss _**M.A.C.A.No.1893 of 2006**_ 11 ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------ **M.A.C.A.No.1893 of 2006** ---------------------------------------------------Dated this the 14[th] day of March, 2016 ## **ORDER** ## **P.N.RAVINDRAN, J** This appeal arises from the award passed by the Motor Accidents Claims Tribunal, Thrissur, in O.P.(M.V.)No.3395 of 2000. The appellants are the claimants therein and respondents 1 and 2 are respondents 1 and 2 respectively before the tribunal. Registry has reported that they have not been served. We have by a separate judgment delivered by us today dismissed M.A.C.A.No.1719 of 2006 filed by the third respondent insurer challenging the award passed by the tribunal and seeking its exoneration or in the alternative right of recovery on the ground that the second respondent did not possess a valid driving licence. We have while dismissing M.A.C.A.No.1719 of 2006 held that, the case set out by the insurer was that, it was not the second respondent who was driving the motor bike, but someone else and that someone else did not have a valid driving licence. We have also held relying on Ext.A6 charge-sheet that on the merits also no interference is called for in the award to the extent the insurer liable to _**M.A.C.A.No.1893 of 2006**_ 12 satisfy the award. Such being the situation, we are of the opinion that notice to respondents 1 and 2 can be dispensed with. We accordingly dispense with notice to respondents 1 and 2. Service complete. **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ss _**M.A.C.A.No.1893 of 2006**_ 13