Jolly Chandrababu & two minors (Jithin Babu & Jeevan Babu) v. T. Jayakumar, Joseph P.J. and United India Insurance Company

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 MACA.No. 1506 of 2011(A) ----------------------OPMV.1209/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANTS : -------------- 1. JOLLY CHANDRABABU, W/O.LATE CHANDRABABU, VISWANATHA VILASOM, ERAMALLOOR P.O., WARD -5, EZHUPUNNA PANCHAYAT, ALAPPUZHA. 2. JITHIN BABU, S/O.LATE CHANDRABABU, AGED 16 YEARS OF DO. DO. 3. JEEVAN BABU, S/O.LATE CHANDRABABU, AGED 7 AND HALF YEARS OF DO. DO. (MINOR APPELLATS 2 & 3 ARE REPRESENTED BY THEIR MOTHER, THE 1ST PETITIONER. - BY ADV. SRI.NIDHI BALACHANDRAN SRI.T.JAYAKRISHNAN RESPONDENTS: - --------------- 1. T.JAYAKUMAR, S/O.THANKAPPAN, NIKARTHIL, OLAVAYPU P.O., POOCHAKKAL, CHERTHALA-688 526. 2. JOSEPH P.J., S/O.OUSEPH, THEKKEPUTHENPURAYIL, VAIKOM, PRESENTLY RESIDING AT THEKKEPUTHENPURAYIL, EAST OF WATER TANK WARD NO.1, THRIPPOONITHURA MUNICIPALITY, PIN-682 038. 3. UNITED INDIA INSURANCE COMPANY REPRESENTED BY ITS DIVISIONAL MANAGER, MULLAKKAL, ALAPPUZHA-688 010. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ. *********************** M.A.C.A No.1506 of 2011-A** ## ********************************* Dated this the 8[th] day of November, 2011 ## **JUDGMENT** ## BASANT, J. Claimants are the appellants. They are the wife, 2 minor children and father of a deceased person, aged 38 years, who suffered injuries in a motor accident, which took place on 24.03.2004 and succumbed to the same on the same day. Against a total claim of Rs.10 lakhs, the Tribunal awarded an amount of Rs.2,90,000/- as compensation as per the details given in para.8 of the impugned award, which we extract below: |**_Sl.No._**|**_Head of claim_**|**_Amount awarded_**| |---|---|---| |1|Compensation for the pecuniary loss caused<br>to the petitioners due to the death of Chandra<br>Babu|Rs.2,56,000.00<br>(2000X12X2/3X16)| |2|Compensation for loss of love and affection|Rs. 12,000.00| |3|Compensation for loss of consortium to the<br>1stpetitioner|Rs. 12,000.00| |4|Compensation for pain and suffering|Rs. 5,000.00| |5|Ambulance charge|Rs. 2,000.00| |6|Funeral expenses|Rs. 3,000.00| ||Total|Rs.2,90,000.00| The insurance company was made entirely liable under the impugned award to satisfy the award. 2 **M.A.C.A No.1506 of 2011-A** 2. We have heard the learned counsel for the appellants and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded by the Tribunal. 3. Called upon to explain and be specific, the learned counsel for the appellants first of all contends that the Tribunal was absolutely unrealistic in reckoning the monthly income of the deceased at Rs.2,000/-. The accident had taken place on 24.03.2004. It was claimed that the deceased was the manager of a finance company. He was having earnings as an L.I.C agent also, it was contended. A salary certificate was thrust into Court as Ext.A11. No satisfactory proof was offered. The Tribunal, by the impugned award, reckoned the monthly income of the deceased at Rs.2,000/-. 4. The learned counsel for the appellants submits that the Tribunal ought to have, even in the absence of any better evidence, come to reasonable conclusions about the quantum of monthly income. The Tribunal should have noted that his wife and two children were dependent on him to keep body and soul together. The presumption under clause 6 of the Second Schedule, which remains in force from 1994, should have been 3 **M.A.C.A No.1506 of 2011-A** taken note of. The precedents in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] and **Laxmi Devi & Ors. V. Mohammad Tabbar & Anr.** [2008 ACJ 1488] must also have guided the Tribunal, contends the learned counsel for the appellants. 5. We take note of all the relevant circumstances. Even in the absence of better, more authentic, crisp and cogent evidence on the quantum of monthly income, the Tribunals cannot throw their hands up in helplessness. Reasonable inferences will have to be drawn taking into account the totality of inputs available. We take note of the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] which mandates that due provision must be made for future enhancement of income. Taking all the relevant circumstances into account, we are satisfied that an amount of Rs.3,250/- can be reckoned as the monthly income for the purpose of ascertainment of compensation for loss of dependency. The learned counsel for the insurance company alertly points out that going by the dictum in **Sarla** (supra) 16, and not 15 as reckoned by the Tribunal, should have been accepted as the multiplier. We agree. 4 **M.A.C.A No.1506 of 2011-A** 6. The learned counsel argues that the amount of compensation awarded under the heads loss of love and affection (12,000), loss of consortium (12,000), pain and suffering (5,000) and funeral expenses (3,000) are painfully low and inadequate. We find force in that submission. 7. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs.1,52,000/as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. i) Compensation for pain and suffering : Rs.5,000.00 (10,000 minus 5,000) ii) Funeral expenses :Rs.2,000.00 (5,000 minus 3,000) iii) Compensation for loss of love and affection :Rs.3,000.00 (15,000 minus 12,000) iv) Loss of consortium :Rs.8,000.00 (20,000 minus 12,000) v) Loss of dependency :Rs.1,34,000.00 (3,250X12X15X2/3 = 3,90,000 minus 2,56,000) .......................... Total :Rs.1,52,000.00 ========== 5 **M.A.C.A No.1506 of 2011-A** 8. We are not persuaded to interfere with the amount awarded under any other head. The learned counsel for the appellants points out that proportionate cost has not been awarded as per the dictum in **Jeena V. Satheesh Babu.K** [2011 (3) KLT 943]. Only an amount of Rs.3,000/- has been awarded as cost. We agree that proportionate cost as held in **Jeena** (supra) is liable to be awarded. 9. In the result: a) This M.A.C.A is allowed in part; b) The appellants are found entitled to a further amount of Rs.1,52,000/- (Rupees One lakh fifty two thousand only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We direct that the entire amount of compensation shall carry interest at the rate and for the period as specified in the impugned award. But we make it clear that no interest amount on the enhanced amount of compensation will be payable for the period of delay in filing this appeal, ie. 643 days; d) Proportionate cost for the proceedings before the 6 ## **M.A.C.A No.1506 of 2011-A** Tribunal on the entire amount of compensation shall be payable to the appellant as held in **Jeena** (supra); e) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(V.CHITAMBARESH, JUDGE)** rtr/ 7 **M.A.C.A No.1506 of 2011-A** ## **R.BASANT & V.CHITAMBARESH, JJ. *********************** C.M.Appl.No.2304 of 2011 in M.A.C.A No.1506 of 2011 ******************************* Dated this the 8[th] day of November, 2011 ## **ORDER** ## BASANT, J. This petition is to condone the delay of 643 days in filing the appeal. Heard. We take a lenient view. Petition allowed. Delay condoned on condition that if there be enhancement of compensation in this appeal, no interest on the enhanced amount shall be payable for the period of delay, ie. 643 days. **(R.BASANT, JUDGE)** **(V.CHITAMBARESH, JUDGE)** rtr/