Janaki Raghavan and others v. A.J. Martin and The National Insurance Company Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939 ## MACA.No. 1587 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1206/2010 of M.A.C.T., ERNAKULAM ## APPELLANT(S)/PETITIONERS: ----------------------- 1. JANAKI RAGHAVAN, W/O.LATE RAGHAVAN,AGED 76, VELIPARAMBIL HOUSE,THRIPPUNITHURA P.O., NADAMA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 2. BALAKRISHNAN V.R, S/O.LATE RAGHAVAN, AGED 52, S/O.LATE RAGHAVAN, VELIPARAMBIL HOUSE, THRIPPUNITHURA P.O.,NADAMA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 3. RAJU V.R, S/O.LATE RAGHAVAN,AGED 49, VELIPARAMBIL HOUSE, THRIPPUNITHURA P.O.,NADAMA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 4. GOPINATH V.R, S/O.LATE RAGHAVAN,AGED 47, VELIPARAMBIL HOUSE, THRIPPUNITHURA P.O.,NADAMA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 5. MADHU V.R,S/O.LATE RAGHAVAN,AGED 43, VELIPARAMBIL HOUSE, THRIPPUNITHURA P.O.,NADAMA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 6. HARIKUTTAN V.R, S/O.LATE RAGHAVAN,AGED 41,VELIPARAMBIL HOUSE, THRIPPUNITHURA P.O.,NADAMA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. ## BY ADV. SRI.MATHEWS K.PHILIP RESPONDENT(S):RESPONDENTS ------------------------------------ 1. A.J. MARTIN, S/O.JOSEPH ADICHIRAYIL HOUSE, MANKAI JUNCTION, M.L.A.ROAD, UDAYAMPEROOR P.O.,MANAKUNNAM VILLAGE, ERNAKULAM-682307 2. THE NATIONAL INSURANCE COMPANY LTD KOCHI DIVISIONAL OFFICER, M.G.ROAD, ERNAKULAM, KOCHI-16 R2 BY ADV. SRI.P.JACOB MATHEW R2 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.1587 OF 2012 ==========================** Dated this the 13[th] day of June, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 29.3.2012 passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).No.1206 of 2010 filed under section 166 of the Motor Vehicles Act. The appellants are the legal heirs of one Raghavan, the victim of a motor vehicle accident that occurred on 27.5.2010. The deceased was a septuagenarian. While he was walking alongside Puthiyakavu-Thrippunithura road, he was knocked down by a motorcycle bearing Reg.No.KL-39/A-3202. The above claim petition was filed seeking a total compensation of Rs.3.5 lakhs. Taking note of the fact that the deceased was aged 76 years, the Tribunal treated him **M.A.C.A.1587/2012** 2 as a non-earning person and notionally fixed his annual income as Rs.15,000/- and ⅓ of the income was deducted towards his personal expenses for the purpose of calculating compensation payable under the head 'loss of dependency'. Going by the schedule given in paragraph 11 of the impugned award, the Tribunal assessed the compensation under different heads as hereunder:- |**Heads**|**Amount claimed**|**Amount awarded**|| |---|---|---|---| |Loss of<br>dependency|1.5 lakh|50000|15000-1/3rdx5| |Transport<br>and<br>expenses|2000|2000|| |Funeral expenses|25000|7500|| |Compensation<br>for pain and<br>sufferings|30000|10000|| |Compensation<br>for loss of love<br>and affection|50000|20000|| |Total||89500|| |Other<br>claims<br>disallowed||0|| 2. Based on such assessment, the Tribunal awarded a total compensation of Rs.89,500/- with interest @ 8% per annum from the date of the petition till realisation. Since there was no dispute with **M.A.C.A.1587/2012** 3 respect to the accident, cause of the accident as negligence on the part of the first respondent as also the liability of the insurer to indemnify the insured-owner, the second respondent -insurance company was directed to deposit the said amount along with interest before the Tribunal. It is seeking enhancement of the quantum of compensation awarded that the captioned appeal has been preferred. 3. We have heard the learned counsel for the appellants and also the learned counsel for the second respondent-insurance company. 4. In view of the absence of dispute regarding the accident, cause of the accident as negligence on the part of the first respondent, the rider of the aforesaid motorcycle and also the liability of the second respondent-insurance company to indemnify the insuredowner of the offending vehicle, the only question to be decided in this appeal is regarding the entitlement or otherwise of the appellants to get enhanced compensation. In that regard, the learned counsel for the appellants contended that the Tribunal committed an error in treating the victim viz., late Sri.Raghavan as a non-earning person. **M.A.C.A.1587/2012** 4 True that the victim was aged around 76 years at the time of the accident, even as per the averments in the claim petition. According to the appellants, that by itself cannot be a reason for treating the deceased as a non-earning person and consequently, to fix Rs.15,000/only as his annual income. 5. The learned counsel for the second respondent-insurance company contended that in the absence of any evidence to show that the deceased was an earning member, it cannot be said that the Tribunal had committed a patent error warranting an interference. A glance at the impugned award would reveal that the Tribunal treated the victim as a non-earning person. The first appellant, the widow of the deceased, was aged 74 years. The other appellants who are the sons of the deceased in his wedlock with the first appellant were aged 39-50 years at the time of the accident in question. The Tribunal treated them as non-dependents and treated only the widow as the dependent of the deceased. We do not find any reason to interfere with the said conclusion arrived at by the Tribunal taking note of **M.A.C.A.1587/2012** 5 undisputed position regarding the age of appellants 2 to 6. Considering the reasons apparent that persuaded the Tribunal to treat the wife alone as the dependent, we are of the view that the conclusion arrived at by the Tribunal that the deceased was a non-earning person cannot be sustained. After treating the first appellant widow as the dependent of the deceased, how can it be taken that deceased was a non-earning person? In short, the finding that the first appellant was a dependent of the deceased and the deceased was a non-earning person could not co-exist. For all these reasons, we do not find any reason to sustain the finding of the Tribunal that the deceased was a non-earning member. Hence, the said finding is vacated. True that the deceased was aged around 76 years and there is absolute absence of any evidence establishing the occupation of the deceased at the time of the accident. Still, we are of the considered view that for calculation purpose, it is incumbent on the Court to fix the monthly income notionally taking into account the age of the deceased as also the year of the accident and such other relevant **M.A.C.A.1587/2012** 6 factors. Taking into account all such factors, we are inclined to fix the monthly income of the deceased as Rs.3,000/- notionally for calculation purpose. The Tribunal has correctly adopted the multiplier as '5' with reference to the age of the deceased. In view of our disinclination to interfere with the conclusion arrived at by the Tribunal that the first appellant alone could be treated as the dependent of the deceased and also in the light of the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** 1/3 of the income has to be deducted towards personal expenses of the deceased. It was also correctly ordered by the Tribunal. In such circumstances, a re-assessment of the compensation for loss of dependency has to be made based on the refixed monthly income. On such calculation, the first appellant would be entitled to get an amount of Rs.1,20,000/- (3000x12x5x2/3) under the said head. The Tribunal has already granted an amount of Rs.50,000/- under the head 'loss of dependency'. Hence, after deducting the said amount, the first appellant would be entitled to get **M.A.C.A.1587/2012** 7 an additional compensation of Rs.70,000/- under that head. It is ordered accordingly. The fact that the other appellants are not entitled to get dependency compensation cannot be the reason to deprive them the compensation towards 'loss of love and affection'. The deceased was the father of appellants 2 to 6. Merely because the sons are grown up, they cannot be denied the compensation for 'loss of love and affection'. Taking into account their number and also their respective age, we are of the view that an amount of Rs.50,000/- can be granted towards 'loss of love and affection'. In fact, that alone was the amount claimed under that head by the appellants. After deducting the amount already granted viz., Rs.20,000/-, the appellants 2 to 6 are entitled to get an amount of Rs.30,000/- additionally. It is awarded. Towards funeral expenses, though an amount of Rs.25,000/- was claimed, the Tribunal granted only an amount of Rs.7,500/-. In the light of the decision of the Hon'ble Apex Court in **Rajesh and others** **v. Rajbir Singh and others [(2013) 9 SCC 54],** in the absence of any evidence for higher expenses, a minimum of Rs.25,000/- shall be **M.A.C.A.1587/2012** 8 granted towards funeral expenses. In such circumstances, after deducting the amount granted by the Tribunal under that head, the appellants are entitled to get an additional amount of Rs.17,500/-. It is awarded. Towards loss of consortium, no amount was granted by the Tribunal. The fact that the first appellant, the widow, was aged 74 years could not have been a reason to deny her compensation for loss of consortium. But at the same time, taking note of the fact that she was aged 74 years at the time of the accidental death of her husband, we are of the view that an amount of Rs.50,000/- would be an appropriate compensation under that head. It is awarded. Towards loss of estate, no amount was granted. In the absence of any evidence, we are inclined to grant a conventional amount of Rs.5,000/- under that head. Towards pain and suffering, the Tribunal awarded only a sum of Rs.10,000/-. The deceased succumbed to the injuries sustained in the accident after two days of the accident viz., on 30.5.2010. Considering the fact that he had experienced excruciative pain for about two days, we are inclined to grant Rs.5,000/- more under that **M.A.C.A.1587/2012** 9 head. In the light of the aforesaid discussions, the appellants are entitled to get an additional compensation of Rs.1,77,500/-. The additional compensation will carry 8% interest per annum from the date of the petition till realisation. The second respondent shall deposit the said amount along with interest thereon within two months from the date of receipt of a copy of this judgment. The amount of compensation granted under the head 'loss of dependency', 'loss of love and affection' and 'loss of consortium' shall be disbursed as ordered above, specifically. The balance amount alone will be available for equal apportionment among all the appellants. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.1587/2012** 10 **M.A.C.A.1587/2012** 11 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1587/2012** 12