K.C.GIRIJA and others v. K.M.SUDHAKARAN and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 MACA.No. 1468 of 2011() ----------------------OPMV.88/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): -------------- 1. K.C.GIRIJA, AGED 33 YEARS, W/O.LATE K.C.SREEDHARAN, CHANDRATHIL HOUSE, ARIYALLUR AMSOM, KODAKKAD DESOM, P.O.KODAKKAD, MALAPPURAM DIST. 2. K.C.SREEJITH, AGED 31 YEARS, S/O.LATE K.C.SREEDHARAN. 3. K.C.KRISHNA RAJ ALIAS SREEJESH, AGED 28 YEARS, S/O.LATE SREEDHARAN. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- 1. K.M.SUDHAKARAN, AGED 33 YEARS, S/O.SANKARU, KODAKKADMADU HOUSE, VELIMUKKU AMSOM, P.O.VELIMUKKU, DIST.MALAPPURAM.673082 2. P.K.ALI, S/O.P.K.MOHAMMED, VALAPPUPARAMBU HOUSE, VELIMUKKU, - P.O.CHELARI, TIRUR TALUK, MALAPPURAM DIST.673082 3. THE NEW INDIA ASSURANCE CO.LTD., CHEROOTTY ROAD, CALICUT.673001 A.A.ZIYAD RAHMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1468 of 2011 ---------------------------------------Dated this the 20[th] day of September 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimants are the appellants. They are wife, aged 33 years and two minor children aged 13 years and 10 years (on the date of the claim petition) of the deceased who suffered injuries in a motor accident which took place on 26/5/1992 and succumbed to the same. Against a total claim of Rs.4,00,000/-, the tribunal awarded a total amount of Rs.1,54,600/- as compensation as per the details given in paragraph 7 of the impugned award which we extract below: Transport to hospital Rs.500/Damage to clothing and Rs.300/articles of the injured Loss of consortium Rs.10,000/Loss of love and affection Rs.10,000/pain and sufferings Rs.5,000/funeral expenses Rs.4,000/- 2 M.A.C.A.No.1468 of 2011 Pecuniary loss cum loss of Rs.1,24,800/dependency (Rs.1,800/- x 12 x 2/3 x 13 x 2/3) ------------------- **==> picture [159 x 24] intentionally omitted <==** 2. The claimants/appellants claim to be aggrieved by the impugned award. Called upon to explain and be specific, the learned counsel for the appellants assails the impugned award on various grounds: 3. The learned counsel for the appellants first of all contends that the deceased was a loading and unloading worker. He was earning an income of Rs.3,000/- per month. The tribunal did not accept that assertion of the claimants even though the claimants had tendered oral evidence in support of the assertions through PW1, the wife of the deceased. The tribunal erred grossly in accepting only Rs.1,800/- as the monthly income. In the light of the oral evidence, the tribunal should have drawn appropriate and reasonable inference about the monthly income of the deceased. The tribunal should not have lost sight of the fact that the deceased along with his wife and two minor children were depending on the income of the deceased to keep 3 M.A.C.A.No.1468 of 2011 body and soul together. In any view of the matter, the tribunal had erred grossly in reckoning monthly income at Rs.1,800/only, contends the counsel. 4. We find force in that contention. Even in the absence of any better evidence, we are satisfied that Rs.2,000/- should certainly have been reckoned as the monthly income of the deceased in 1992. That inference of prudence appears to be absolutely justified from the totality of the facts and circumstances available in this case. 5. The learned counsel for the appellants then contends that the tribunal had grossly erred in ascertaining the compensation for loss of dependency. The tribunal deducted 1/3[rd] of the monthly income towards the personal expenses of the deceased. 13 was reckoned as the multiplier and that is justified by the dictum in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** . After ascertaining the quantum of compensation for loss of dependency by employing the multiplier-multiplicand method, the tribunal further proceeded to deduct 1/3[rd] of the total amount of compensation allegedly to provide for the imponderables. This process of calculation of compensation is not justified at all, 4 M.A.C.A.No.1468 of 2011 contends the learned counsel for the appellants. 6. We find merit in that contention. We find absolutely no justification for a further deduction of 1/3[rd] of the total amount after choosing appropriate multiplier and multiplicand. Though the learned counsel for the appellants assails the amounts awarded under other grounds, we are not persuaded to invoke our appellate jurisdiction under Section 173 of the Motor Vehicles Act to interfere with the quantum of compensation awarded under any other head. We cannot lose sight of the fact that the accident had taken place as early as on 26/5/1992. 7. The above discussions would lead us to the conclusion that the appellants are entitled to a further amount of Rs.83,200/- as per the details shown below in addition to the amount awarded by the tribunal: Compensation for loss of dependency **Rs.83,200/-** [Rs.2,08,000/- (Rs.2,000/- x 12 x 2/3 x 13) minus Rs.1,24,800/-) 8. In the result, a) This appeal is allowed in part. b) Appellants are found entitled to a further amount of Rs.83,200/- (Rupees eighty three thousand two hundred only) in M.A.C.A.No.1468 of 2011 5 addition to the amount already awarded by the Tribunal. c) We direct that for the enhanced amount of Rs.83,200/-, interest shall be payable at the rate of 9% per annum from the date of the petition to the date of deposit/realisation. d) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1468 of 2011 6 7 M.A.C.A.No.1468 of 2011 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010