Joseph Mervin A.B, Merin Bastin and Mareena Bastin v. Bastin and The National Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938 MACA.No. 991 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 311/2010 of M.A.C.T.,ERNAKULAM DATED 09-012012 APPELLANT(S)/PETITIONERS 1 TO 3: --------------------------------------- 1. JOSEPH MERVIN A.B, - AGED 22 YEARS, S/O.LATE JOLLY BASTIN, ARATTUKULAM HOUSE, CHELLANAM P.O., KOCHI-8. 2. MERIN BASTIN, - AGED 19 YEARS, D/O.LATE JOLLY BASTIN, ARATTUKULAM HOUSE, CHELLANAM P.O., KOCHI-8. 3. MAREENA BASTIN, AGED 17 YEARS, D/O.LATE JOLLY BASTIN, ARATTUKULAM HOUSE, CHELLANAM P.O., KOCHI (MINOR), REPRESENTED BY HER BROTHER AND NATURAL GUARDIAN JOSEPH MERVIN A.B. BY ADVS.SRI.C.ARUN PRASANTH SRI.A.S.BRIJESH SMT.ROOPA RAMACHANDRAN RESPONDENT(S):RESPONDENTS 1 AND 2 ---------------------------------------------- 1. BASTIN ARATTUKULAM HOUSE, CHELLANAM P.O., KOCHI-682002. 2. THE NATIONAL INSURANCE COMPANY LIMITED, DISTRICT OFFICE, M.G.ROAD, KOCHI - 682016. R2 BY ADV. SMT.RAJI T.BHASKAR R2 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** ## **========================== M.A.C.A. No.991 OF 2012** **==========================** Dated this the 22[nd] day of November, 2016 ## **JUDGMENT** _Ravikumar, J._ The claimants who are the legal heirs of the victim of a motor vehicle accident preferred this appeal on feeling aggrieved by and dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).No.311 of 2010. They are respectively the son and daughters of the deceased Jolly. She succumbed to the injuries sustained by her in a motor vehicle accident occurred on 27.12.2009. On that day, she was a pillion rider on the motor cycle ridden by her husband. Alleging that she was a tailer by profession and was earning `9,000/- per month, the claim petition was filed for a total compensation of `9,00,000/-, for her **M.A.C.A.991/2012** 2 death. As per the impugned award, the Tribunal granted a total compensation of `6,05,155/- with interest at 8% from the date of the petition till realisation. The appellants seek for enhancement of the quantum of compensation awarded as per the impugned award. 2.The sole question to be resolved in this appeal is whether or not the appellants are entitled to get enhanced compensation as there is no dispute regarding the accident, cause of the accident as also the liability of the insurer to indemnify the insured-owner of the offending vehicle involved in the case. 3.We have heard the learned counsel for the appellants and Smt.Raji T. Bhaskar, the learned counsel appearing for the insurance company. The main contention of the learned counsel for the appellants is that the Tribunal, ignoring the specific averments taken up by the appellants in the claim petition that the deceased was a tailer by profession and was earning `9,000/- per month, fixed the monthly **M.A.C.A.991/2012** 3 income of the deceased so meagrely at `3,000/- passed the impugned award. But at the same time, it is obvious from the evidence on record that despite taking up such contentions, the appellants had failed to establish their contention relating occupation and income of the deceased. In such circumstances, we do not find any fault with the Tribunal in treating the deceased as housewife. In the case of a housewife between the age group 34-59, the Hon'ble Apex Court fixed the monthly income for calculation purpose as `3,000/-in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** . The said decision was followed by a Division Bench of this court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** . The accident in question occurred on 27.12.2009 and the Tribunal fixed the monthly income of the deceased as `4,000/- In such circumstances, we do not find any reason to interfere with the monthly income fixed by the Tribunal notionally. 4.But at the same time, on a careful scanning of the schedule of **M.A.C.A.991/2012** 4 compensation given in the impugned award, we are of the view that an interference is required in respect of compensation granted under the heads 'funeral expenses' and 'loss of love and affection'. It is also to be noted that the Tribunal had not granted any amount under the head loss of estate. In the light of the decision of the Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** in the absence of evidence for higher expenses, a minimum of `25,000/shall be granted towards funeral expenses. The Tribunal granted only `7,500/- under the said head. In such circumstances, we are inclined to grant `17,500/- more under that head. Towards compensation for 'loss of love and affection', the Tribunal granted only an amount of `30,000/- against a claim of `1,00,000/- Taking note of the fact that the claimants are the son and daughters of the deceased and considering their age, we are inclined to grant the amount as claimed under that head. Therefore, the appellants are entitled to get `70,000/more under the said head. Even in the absence of any evidence, we are of the view that a conventional amount of `10,000/- can be **M.A.C.A.991/2012** 5 granted towards 'loss of estate'. It is awarded. In the light of the discussions as above, the appellants are entitled to get an additional compensation of `97,500/-. It is awarded. The additional compensation will carry @ 8% from the date of the petition till realisation. The second respondent-insurance company shall deposit the amount within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/-** **C.T. RAVIKUMAR** **(JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge **M.A.C.A.991/2012** 6 **C.T. RAVIKUMAR, J.** **M.A.C.A.991/2012** 7 **JUDGMENT September, 2010**