GIRIJA, VIDYA, VIJITH and SWARANAMBAI v. P. SURENDRAN, NATIONAL INSURANCE COMPANY LIMITED and SAJEEV M.K.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939 MACA.No. 211 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV 1492/2006 of PRINCIPAL M.A.C.T., KOZHIKODE DATED 17-07-2009 APPELLANT(S):PETITIONERS -------------------------------- 1. GIRIJA, AGED 43 YEARS W/O.WILSON, PANTHAKKAYIL, EAST HILL P.O,KOZHIKODE. 2. VIDYA, AGED 21 YEARS D/O.WILSON, DO..DO.. 3. VIJITH, AGED 19 YEARS S/O.WILSON, DO..DO... 4. SWARANAMBAI, AGED 73 YEARS M/O.WILSON, DO..DO... BY ADVS.SRI.P.V.KUNHIKRISHNAN SRI.HANSON.P.MATHEW RESPONDENT(S):RESPONDENTS ----------------------------------- 1. P.SURENDRAN, S/O.P.KUMARAN PARAMBATH HOUSE, CHETTIKULAM P.O, ELATHUR , KOZHIKODE DISTRICT. 2. NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, NOOR COMPLEX, MAVOOR ROAD, P.B.NO.811, KOZHIKODE 673 004 3. SAJEEV M.K., S/O.ANDYKUTTY MANIKKA MUNNINMEL, P.O ONNASSERY, KOZHIKODE DISTRICT. R2 BY ADV. SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.211 OF 2010 ==========================** Dated this the 28[th] day of June, 2017 ## **JUDGMENT** _Ravikumar, J._ The appellants were the petitioners in O.P(MV).No.1492 of 2006 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. They filed the said claim petition under section 166 of the Motor Vehicles Act, 1988 seeking compensation for the death of one Wilson who was the husband of the first appellant, the father of appellants 2 and 3 and the son of the fourth appellant. The accident occurred on 5.4.2006. While the deceased was riding his motor cycle bearing Reg.No.KL-11-W-9943, a bus bearing Reg.No.KL-11-C-5763 dashed against his motor cycle and he sustained serious injuries. While undergoing treatment, he succumbed to the injuries. The claim petition was filed claiming a total compensation of Rs.12,00,000/- and **M.A.C.A.211/2010** 2 the Tribunal as per the impugned award, granted an amount of Rs.3,43,750/- with interest at the rate of 7% per annum from the date _._ of petition till realisation ## 2. Heard. 3. After appreciating the evidence on record, the Tribunal found that the respondents are jointly and severally liable to compensate the petitioners/appellants. Since the offending vehicle was covered by a valid insurance policy, the second respondent insurance company was held liable to indemnify the insured-owner. Despite such findings and conclusions, none of the respondents preferred any appeal. So also, they have not taken up any cross objection in this appeal. In such circumstances, it can be safely taken that there is no dispute regarding the accident, cause of accident as negligence from the part of the third respondent driver of the offending vehicle and the liability of the second respondent to indemnify the insured-owner. In short, we are only called upon to consider the question whether or not the appellants are entitled to get enhancement of compensation. 4. The main grievance of the appellants is that the Tribunal **M.A.C.A.211/2010** 3 erroneously fixed the monthly income of the deceased disregarding their averments in the claim petition with respect to his occupation and income. In the claim petition, it was averred that the deceased was a real estate developer and supplier of building materials and was earning a monthly income of Rs.12,550/-. However, the appellants had failed to adduce any evidence to establish their averments regarding the occupation and income of the deceased. When that be so, the Tribunal cannot be found fault in fixing the monthly income of the deceased notionally. 5. The question to be considered is whether any interference is called for with respect to the notional fixation of monthly income as Rs.3,000/-. The accident occurred on 5.4.2006. The deceased was aged 45 years. Ext.A4 would reveal that he was a tax payer. In the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Hon'ble Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004, for calculation purpose, as Rs.4,500/-. Taking into account all the aforesaid aspects, we are of **M.A.C.A.211/2010** 4 the view that despite the failure of the appellants to establish the income of the deceased, it is only just and proper to fix the monthly income of the deceased notionally at Rs.6,000/-, for calculation purpose. Accordingly, it is fixed. With reference to the age of the deceased, the Tribunal identified the multiplier as ‘13’. In the light of decision of the Hon’ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the adoption of the said multiplier cannot be said to be faulty. The Tribunal deducted 1/3 of the income of the deceased towards his personal and living expenses. The question is whether the Tribunal has correctly effected the said deduction. Obviously, in this case, there are four dependents. When the deceased is survived by four dependents, going by the decision in **Sarla Verma** ’s case, only ¼ of the income ought to have been deducted. In the light of the aforesaid factors, compensation for loss of dependency has to be re-assessed. On such re-assessment, an amount of Rs.7,02,000/- (6000x12x13x3/4) is payable towards compensation for 'loss of dependency'. The Tribunal has granted only Rs.3,12,000/- under this head. In such circumstances, the appellants **M.A.C.A.211/2010** 5 are entitled to get an additional sum of Rs.3,90,000/- under the head 'loss of dependency'. Towards the head ‘funeral expenses', the Tribunal has granted an amount of Rs.4,000/- and towards ‘loss of consortium’ an amount of Rs.7,500/- was granted. Towards 'loss of love and affection', the Tribunal has granted Rs.10,000/-. The contention of the learned counsel for the appellants is that the compensation granted under the aforesaid heads, is on the lower side. We find substance in the said contention. The accident occurred in the year 2006. True that the said accident had occurred prior to the accident involved in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** and therefore, as a matter of right, the appellants cannot claim the benefit flowing from the said decision, for calculating compensation under different heads. Still, considering the year of the accident and other relevant factors, we are inclined to grant upward modification of the compensation granted under the aforesaid heads. Towards funeral expenses, we are inclined to grant an additional sum of Rs.11,000/- to make the total compensation thereunder as Rs.15,000/-. Taking into account the fact that the first **M.A.C.A.211/2010** 6 appellant was aged only 40 years at the time of the accidental death of her husband, we are inclined to re-fix the compensation under the head loss of consortium as Rs.75,000/-. After deducting the amount already granted by the Tribunal, the first appellant would be entitled to get an additional sum of Rs.67,500/-. Towards loss of love and affection, the Tribunal has granted only an amount of Rs.10,000/-. The appellants 2 and 3 were then aged 18 years and 16 years at the time of death of their father and the fourth appellant was then aged 70 years. We are inclined to grant Rs.60,000/- additionally under the head 'loss of love and affection'. Towards pain and suffering, no amount was awarded by the Tribunal. We are inclined to grant an amount of Rs.15,000/- under this head taking into account the fact that the deceased died while undergoing treatment. In the light of the assessment and enhancement made by us, the appellants are entitled to get a total additional compensation of Rs.5,43,500/-. It is awarded. 6. This appeal was admitted on 5.2.2010 and notice by speed post was ordered. Though notice to the third respondent was returned with endorsement ‘not known’, no steps were taken thereafter. **M.A.C.A.211/2010** 7 Subsequently, as per order dated 11.8.2016, issuance of notice to the third respondent was dispensed with. Taking into account the fact that the appellant had failed to take steps for serving notice to the third respondent and thereby this appeal remained defective for quite a long time, we are of the view that the appellants would be entitled to get interest only at the rate of 6% per annum from the date of the petition till realization. The second respondent insurance company shall deposit the said amount along with interest thereon, at the aforesaid rate, within two months from the date of receipt of a copy of this judgment. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.211/2010** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.211/2010** 9 **JUDGMENT September, 2010**