Kadupali Khadeeja and others v. K.E. Cleetus and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938 MACA.No. 2641 of 2010 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)No.96/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 09-04-2010 ## APPELLANTS/PETITIONERS: ------------------------------ 1. KADUPALI KHADEEJA, W/O. LATE VALIL KOYAKUTTY, VALIL HOUSE, PANDIKKAD AMSOM, P.O.POOLAMANNA. 2. V.AMEERSHA, S/O. LATE VALIL KOYAKUTTY, VALIL HOUSE, PANDIKKAD AMSOM, P.O.POOLAMANNA, PIN-679327. 3. M. SAJITHA, W/O. LATE VALIL KOYAKUTTY, - -DO- -DO- 4. V.LADEEDA NASRINE, D/O. LATE VALIL KOYAKUTTY (MINOR), REPRESENTED BY MOTHER 5TH PETITIONER -DO- -DO-. 5. V. LAYIKA NASRINE, W/O. LATE VALIL KOYAKUTTY (MINOR), REPRESNTED BY MOTHER 5TH PETITIONER -DO- -DO- 6. V. AJMAL, S/O. LATE VALIL KOYAKUTTY (MINOR), REPRESENTED BY MOTHER P.KHADEEJA, D/O. MOHAMMED, POOLATHU HOUSE, EDAPATTA. BY ADV. SRI.SAJU.S.A RESPONDENTS/RESPONDENTS: ---------------------------------- 1. K.E.CLEETUS, S/O. EASY, KANITHODATH HOUSE, P.O. EDAKOCHI, COCHIN (DRIVER), PIN-682005. 2. I.G.SANKARANKUTTY, PARIJATH VALAMMAL ROAD, THOPPUMPADY, P.O. COCHIN (OWNER), PIN-682005. 3. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, VELLINGOTON ISLAND.P.O., COCHIN, PIN-682003. MACA.No. 2641 of 2010 2 4. V.KHOWLATHMOL, D/O. LATE VALIL KOYAKUTTY, VAIL HOUSE, PANDIKKAD AMSOM, P.O.POOLAMANNA, PIN-679327. 5. V.SAINUL ABID, S/O. LATE VALIL KOYAKUTTY, -DO- -DO- R,R4,5 BY ADV. SRI.JAMSHEED HAFIZ R,R3 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------M.A.C.A.No.2641 of 2010 ------------------------------------Dated 2[nd] December, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The legal heirs of one Valil Koyakutty who died in a motor vehicle accident filed this appeal on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Manjeri as per the award in O.P.(M.V)No.96 of 2006. The said claim petition was filed under Section 166 of the Motor Vehicles Act seeking compensation for his death. The total compensation claimed was 8,00,000/-. As per the impugned award₹ the Tribunal granted 2,83,500/- with interest at the rate of 7% per₹ annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation that this appeal has been filed. 2. We have heard Adv.Sri.Vinoy Mathew Joseph, the learned counsel for the appellants/claimants and also Adv.Sri.Rajan P. Kaliyath, the learned counsel appearing for the 3[rd] respondent insurance company. M.A.C.A.No.2641/2010 2 3. In the absence of any dispute regarding the accident, cause of accident and liability to indemnify the insured owner, the sole question to be decided is regarding the entitlement of the appellants/claimants to enhanced compensation. In such circumstances, issuance of notice to respondents 1, 2, 4 and 5 is dispensed with and we are proceeding to consider the appeal on merits at the admission stage itself. 4. The deceased was having two wives. Claimants 1 and 5 are the wives of the deceased. Claimants 2, 3, 4, 5 and 6 are the children born to the deceased through them and the 8[th] claimant is his another son born through yet another wife. The main contention of the learned counsel for the appellants/claimants is that the Tribunal, disregarding the averments taken up in the claim petition, fixed the monthly income of the deceased notionally at 2,500/-. In the claim₹ petition it is contended that the deceased was aged 44 years. In fact, no document was produced to establish the correct age of the deceased. In the postmortem certificate viz., Ext.A2, the age of the deceased was recorded as 48 years. In such circumstances, the Tribunal accepted the age as 48 and identified the multiplier with M.A.C.A.No.2641/2010 3 reference to the same. In such circumstances, we do not find any reason to hold that the Tribunal had done an illegality in the matter of ascertaining the age and consequently, to adopt the multiplier applicable in the case. The learned counsel further contended that the Tribunal went wrong in effecting a deduction of 1/3[rd] of the income without taking into account the number of dependents. It is submitted that it ought to have been 1/5[th] of the income. The learned counsel further submitted that the compensation granted under the heads `loss of consortium', `loss of love and affection' and `funeral expenses' are too inadequate and an upward modification is required under those heads. On the contrary, the learned counsel for the 3[rd] respondent submitted that the notional fixation of the monthly income cannot be said to be faulty warranting an interference. When the claimants failed to adduce evidence to establish the occupation and income of the deceased the Tribunal is justified in fixing the monthly income notionally. It is further contended that as the accident occurred in the year 2005 the fixation of the monthly income is also cannot be said to be too meagre warranting an interference. Further, a glance at the compensation granted in the impugned award would reveal that the Tribunal has granted adequate compensation on all heads and in short, no appellate interference is required. M.A.C.A.No.2641/2010 4 5. We have heard the learned counsel on both sides and perused the impugned judgment. Upon considering the rival contentions and perusing the impugned judgment and award, we are of the view that the claimants have made out a case warranting appellate interference. True that, the appellants/claimants have failed to establish the occupation and income of the deceased. In the claim petition it is stated that the deceased was a Contractor by profession. To establish the said contention the claimants have produced Ext.A3 series of agreements. Mere production of copies of certain agreements cannot be taken as reliable evidence regarding one's occupation as also income. We are of the view that the Tribunal cannot be found fault with in declining to accept and act upon such documents to uphold the claim of the appellants with respect to the occupation of the deceased. So also, there is absolute absence of any evidence regarding his income. When that be the position, the notional fixation of the monthly income by the Tribunal for calculation purpose cannot be said to be illegal or faulty warranting interference. But, at the same time, the question is whether the fixation of monthly income by the Tribunal as ₹ 2,500/- calls for interference. The accident occurred on 17.8.2005. Though going by the averments in the claim M.A.C.A.No.2641/2010 5 petition the deceased was then aged only 44 years Ext.A2 postmortem certificate would suggest his age as 48 years. At the same time, it is evident that the deceased was maintaining himself and his family consisting of eight members. In such circumstances, taking into account the aforesaid aspects, we are inclined to fix the monthly income at 5000/- for calculation purpose. In view of our finding that the₹ claimants had failed to adduce evidence regarding the age of the deceased the Tribunal cannot be said to have committed any wrong in identifying the multiplier in view of the age recorded in the postmortem certificate. Accordingly, the Tribunal fixed the multiplier as `13'. There is substance in the contention of the claimants that the Tribunal effected deduction without properly taking into account the number of dependents. Obviously, the Tribunal deducted 1/3[rd] of the income towards personal expenses of the deceased. In the light of the decision of the Hon'ble Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ the question of deduction towards personal expenses has to be decided with reference to the number of dependents and not with reference to the number of applicants. In this case, evidently, all the applicants are dependents. They are 8 in number. In such circumstances, in the light of the dictum laid down in **Sarla Verma's** case (supra) the deduction ought to have M.A.C.A.No.2641/2010 6 been only 1/5[th] of the income towards personal expenses. Taking into account the aforesaid relevant factors if the amount payable towards compensation for `loss of dependency' is re-assessed the amount payable will be 6,24,000/- (5000 x 12 x 13 x 4/5). The Tribunal has₹ already granted 2,60,000/- under that head. In such circumstances,₹ after deducting the amount awarded by the Tribunal the appellants are entitled to get an additional compensation of 3,64,000/- under that₹ head. Towards `loss of consortium' the Tribunal granted only 5,000/-₹ and towards `funeral expenses' only 2,000/- was granted. In the₹ light of the decision in **Rajesh v. Rajbir Singh (2013(3) KLT 89 (SC))** in the absence of any evidence of higher expenses a minimum of ₹ 25,000/- can be granted towards `funeral expenses' and the minimum amount payable towards `loss of consortium' is 1,00,000/-.₹ In such circumstances, we are inclined to grant an additional compensation of 95,000/- towards `loss of consortium' and an₹ amount of 23,000/- additionally towards `funeral expenses'. The₹ Tribunal granted only an amount of 5,000/- under the head `loss of₹ love and affection'. Taking note of the number of children we are of the view that the amount granted by the Tribunal under the said head is too low and we are inclined to grant 95,000/- more under that head. In₹ the light of the re-assessment made as above, the claimants are M.A.C.A.No.2641/2010 7 entitled to get a total additional compensation of 5,77,000/-. It is₹ awarded. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. It is made clear that claimants 1 and 5 are entitled to get equally the additional compensation of ₹ 95,000/- granted towards `loss of consortium' and claimants 2 to 4 and 6 to 8 alone are entitled to get equally the additional compensation granted towards `loss of love and affection'. The balance amount of additional compensation shall be apportioned among the claimants in terms of the same ratio mentioned in the award passed by the Tribunal. Before releasing the amount to the claimants the Tribunal shall take steps for realising the balance amount of court fee, in accordance with law. There will be no order as to costs. This appeal is allowed as above. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS