Hafsath and others v. Raveendranathan K.K., Noushad and The Manager, Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 MACA.No. 30 of 2008() --------------------OPMV.855/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. HAFSATH, AGED 36 YEARS, W/O. DECEASED ABDUL NAZAR, KUZHIKANDATHIL HOUSE, P.O.MATHILAKOM, THRISSUR DISTRICT. 2. JASIL NAZAR, AGED 16 YEARS, S/O. ABDUL NAZAR, MINOR, REPRESENTED BY HIS MOTHER HAFSATH, KUZHIKANDATHIL HOUSE, P.O.MATHILAKOM. 3. AJMAL NAZAR, AGED 12 YEARS, S/O. ABDUL NAZAR, MINOR, REPRESENTED BY HIS MOTHER HAFSATH, KUZHIKANDATHIL HOUSE, P.O.MATHILAKOM. BY ADV. SRI.N.KRISHNANKUTTY PILLAI RESPONDENT(S): DEFENDANTS ------------------------- 1. RAVEENDRANATHAN K.K., KULANGARA HOUSE, VALLISSERY P.O., AVINISSERY, THRISSUR DISTRICT. 2. NOUSHAD, S/O. MUHAMMEDALI, PALLIPARAMBIL HOUSE, KALAMURI, KAIPAMANGALAM P.O., THRISSUR DISTRICT. 3. THE MANAGER, ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, CITY HEIGHTS BUILDING, SOUTH JUNCTION, CHALAKUDY. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJ ## **R. BASANT & K. SURENDRA MOHAN, JJ.** ## **-----------------------------------------------------------M.A.C.A.NO: 30 OF 2008 ----------------------------------------------------------Dated this the 3[rd ] November, 2011.** ## **JUDGMENT** ## Basant, J. Claimants are the appellants. They are wife aged 31 years and minor children aged 11 years and 7 years respectively of the deceased, a person aged about 43 years. He was allegedly a businessman. He was running a theatre. He suffered injuries in a motor accident which occurred on 28-6-2002. He succumbed to the injuries on 1-7-2002. Claimants claimed a total amount of Rs.6 lakhs as compensation. The Tribunal by the impugned award directed payment of only an amount of Rs.3,65,000/- as per the details given below:- |Compensation|-|3,00,000 (2500x12x2/3x15)| |---|---|---| |Pain and suffering|-|10,000| |Loss of consortium|-|20,000| |Funeral expenses|-|5,000| |Loss of love and||| |affection|-|20,000| |Loss to estate|-|10,000| ||-------------------|| |Total||3,65,000| ======== MACA 30/2008 2 The insurance company was made entirely liable under the impugned award. 2. We have the learned counsel for the appellant. There is no representation for the respondents. The challenge against the impugned award is raised on the short ground that the quantum of compensation awarded is not adequate. 3. Called upon to explain and be specific, the learned counsel for the appellants first of all contends that the quantum of compensation awarded under the head of pain and suffering is inadequate. Only an amount of Rs.10,000 has been awarded by the Tribunal. Deceased had suffered serious injuries and had lived in pain from 28-6-2002 to 1-7-2002. We are in these circumstances satisfied that the quantum of compensation awarded under the head pain and suffering can be enhanced to Rs.15,000/-. 4. It is then submitted that though the deceased was an inpatient from 28-6-2002 to 1-7-2002 no amount has been awarded as compensation for medical and miscellaneous expenses. He was admitted to a hospital. He was shifted to another hospital. He continued treatment there. Medical expenses had to be incurred, byestander expenses had to be MACA 30/2008 3 incurred. For all these no amount of compensation has been awarded under the head medical and miscellaneous expenses complains the learned counsel for the appellant. We find merit in the contention. We are satisfied that an amount of Rs.10,000/can be awarded under the head medical and miscellaneous expenses in connection with the treatment from 28-6-2002 to 1-7-2002. 5. It is then contended that the mainly income reckoned by the Tribunal is too inadequate. The Tribunal has assumed Rs.2500/- to be the monthly income. Ext.A7 agreement was produced to indicate that the deceased was running a business of managing cinema theatres. It is also pointed out that the deceased was the holder of a passport and Ext.A5 is the passport produced. He was a person aged about 43 years and his family consisting of his wife and two minor children were totally depending on him. Even in the absence of any better evidence reasonable inference ought to have been drawn by the Tribunal argues the learned counsel for the appellants. The learned counsel for the appellants points out that when the F.I statement was lodged it is clearly revealed that the deceased is running the business of managing a theatre. This confirms Ext.A7 agreement MACA 30/2008 4 also, submits the learned counsel for the appellant. In any view of the matter reasonable inference ought to have been drawn from the totality of circumstances. The averments in the F.I statement reveal that he was riding a scooter and was taking his minor children to a nearby school. 6. The Tribunal has reckoned only Rs.2500 as the monthly income. We take note of the presumption of prudence available under clause 6 of second schedule which has remained without updation from 1994. We further take note of the proceedings in **Latha Wathwa v. State of Bihar** (AIR 2001 SC 3218) and **Lakshmi Devi v. Mohammed Tabbar** (2008 ACJ 1488) which enables the Tribunal to draw a presumption of prudence that even a non-earning home maker as also an unskilled manual worker must be earning an income of Rs.3000. We are in these circumstances satisfied that it would absolutely safe in the given circumstances to expect that the deceased must have been earning at least an amount of Rs.4500 per mensem. At any rate giving adequate provision for the increase in earnings over the years we are satisfied that Rs.4500 can safely be reckoned as the monthly income for the purpose of computation of loss of dependency. Going by **Sarla Varma v. Delhi Transport** MACA 30/2008 5 **Corporation** (2009)6 SCC 121, 14 is the multiplier applicable for a deceased person aged 43 years. We are satisfied in these circumstances that the compensation amount deserves to be reworked. 7. The above discussion lead us to the conclusion that the appellants are entitled to a further amount of Rs.219000 as compensation in addition to the amount awarded by the Tribunal as shown below:- i) Pain and suffering 5000 (15000 minus 10000) ii) Medical and miscellaneous expenses 10000 (no amount awarded by the Tribunal) iii) Loss of dependency 204000 (4500x12x2/3x14=504000 minus 300000) ---------------- Total:219000 ======= ## 7. We are not persuaded to agree that the amount awarded under any other head requires modification/enhancement. ## 8. In the result; MACA 30/2008 6 a) This appeal is allowed in part. b) The appellants are found entitled to a further amount of Rs.219000 (Rupees two lakhs nineteen thousand only) in addition to the amount awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the Tribunal under the impugned award. d) We further direct that proportionate cost shall be calculated on the entire amount of compensation as held in **Jeena v. Satheesh Babu {2011(3) KLT 943}** . e) All other directions of the Tribunal are upheld. Sd/- R. BASANT Judge Sd/K. SURENDRA MOHAN Judge jj P.S.to Judge MACA 30/2008 7