Krishna Swamy Chettiar and Mylathal v. Gangadharan, Sasikumar and The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE R.BASANT & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 1ST DAY OF MARCH 2012/11TH PHALGUNA 1933 ## **M.A.C.A.No.1310 of 2007 (B)** ## **----------------------------------------** **(** AGAINST THE AWARD IN O.P.(MV) No.7/2001 OF THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD, DATED 10.11.2006) --------------- ## **APPELLANT/** PETITIONER IN OP(MV):- ------------------------------------------------------ 1. KRISHNA SWAMY CHETTIAR, S/O. LATE PALANI SWAMY CHETTIAR, AGED 76 YEARS, RESIDING AT 468, GANDHIPURAM, SULIESWARAMPATTI P.O. POLLACHI, TAMILNADU. 2. MYLATHAL, W/O. KRISHNA SWAMY CHETTIAR, AGED 64 YEARS, -DO- -DO-. BY ADVS.SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN ## **RESPONDENTS/** RESPONDENTS IN OP(MV):- ---------------------------------------------------------------- 1. GANGADHARAN, S/O. PAZHANIMALA, RESIDING AT 1/263, MURUGAN INDUSTRIAL WORKS, OLD BAZAR, KOLLENGODE, CHITTUR TALUK. 2. SASIKUMAR, S/O. VELAYUDHAN, AGED 22 YEARS, RESIDING AT CHANGANARA, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, - T.S.M. COMPLEX, R.S.ROAD, PALAKKAD. R1 BY ADV. SRI.JACOB SEBASTIAN R3 BY STANDING COUNSEL SRI.V.P.K.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- R.Basant & K.Vinod Chandran,JJ. ---------------------------------------------- ## M.A.C.A.No.1310 of 2007-B ## ---------------------------------------------Dated this, the 1[st] day of March, 2012 **JUDGMENT** ## R.Basant,J.: Claimants are the appellants. They are parents, aged 70 years and 58 years respectively, of the deceased. Deceased was an unmarried person, aged about 38 years. He succumbed to injuries suffered by him in a motor accident on 2.4.2000. Claimants claimed a total amount of `.5,68,500/- as compensation. The claim was resisted. Before the Tribunal, the 1[st] claimant examined himself as P.W.1. Exhibits A1 to A6 were marked. On the side of the respondents, Exhibit B1 final report filed by the police was also marked. 2. The Tribunal, by the impugned award, directed payment of a total amount of Rs.86,500/- as per the details shown below: |**_Head_**|**_Amount awarded_**| |---|---| |Damage to clothing and articles|`. 500/-| |Medical Expenses|`.6,000/- (including<br>transportation)| |Funeral expenses|| |Pain and suffering|`.5000/-| |Loss of love and affection and protection|`.15000/-| |Compensation for pecuniary loss|1000x12x5 =`.60,000/-| |**Total**|`**.86,500/-**| 3. We have heard the learned counsel for the appellants and the learned counsel for the 3[rd] respondent, Insurance company. **- 2 -** M.A.C.A.No.1310 of 2007 Liability of the insurer is not disputed. The short dispute is about the quantum of compensation payable. 4. The learned counsel for the appellants contends that the quantum of compensation fixed by the Tribunal is painfully, perversely and unrealistically low. The Tribunal ought to have awarded a much higher amount as compensation at any rate, contends learned counsel. 5. First of all it is contended that under the composite head of medical expenses, funeral expenses and transportation, only an amount of `.6,000/- has been paid. This is grossly inadequate, it is contended. The deceased was a person hailing from Pollachi in Tamil Nadu and the accident had taken place within the jurisdiction of Kollengode Police Station. He was admitted in a hospital. He underwent treatment for some time before he succumbed to the injuries on the same day. For medical expenses, transportation and funeral expenses, reasonable amounts have not been awarded, it is contended. 6. We find merit in the challenge raised. We are satisfied that an amount of `.5,000/- each deserves to be awarded under the heads of transportation and funeral expenses and an amount of `.3,000/deserves to be awarded as medical expenses, even in the absence of any better evidence. **- 3 -** M.A.C.A.No.1310 of 2007 7. The learned counsel for the appellants contends that, for loss of estate no amount of compensation has been awarded. We are satisfied that a global amount of `.5,000/- can be awarded as compensation under the head of loss of estate. 8. The main plank of challenge is the quantum of compensation awarded under the head of dependency. The deceased was an unmarried young person, aged about 38 years. The claimants, his parents are aged 70 years and 58 years. The claim is under Section 166 of the Motor Vehicles Act, 1988 and the multiplier has got to be ascertained taking into account the probable period of dependency of the claimants. Only 5 has been accepted as the multiplier by the Tribunal. The learned counsel for the appellants, relying on the decision of _**Sarla Verma v. Delhi Transport Corporation**_ [(2009) 6 SCC 121] contends that for a person of the age group of 56 to 60 years at least 9 should have been accepted ordinarily as the multiplier. We accept that contention of the learned counsel for the appellants. 9. The learned counsel for the Insurance Company contends that following the dictum in _**Sarla Verma**_ , one-half of the income of a bachelor ought to be set apart for his personal expenses. Only the remaining half would be available as contribution to his parents, points out the counsel. We are in ready agreement with the learned counsel for **- 4 -** M.A.C.A.No.1310 of 2007 the Insurance Company. Tribunal had reckoned 2/3[rd] of the income of the deceased as contribution to the parents. Following the dictum in Sarla Verma, we agree that only one-half can be reckoned as the contribution to the parents, the claimants. 10. We now come to the dispute about the quantum of monthly income. The deceased, a person aged about 38 years, is said to be a business man. No better evidence was made available to the Court to show the nature of employment/business or the precise income of the deceased. Reliance was placed on the contents of Exhibit A1 F.I.R. and Exhibit A4 Inquest Report to build up a contention that the deceased was a business man. Indications are there, but there is absolutely no details about the precise nature of business or about the income. 11. In situations like this, we are certainly of the opinion that the Tribunals cannot throw their hands up in helplessness. Reasonable assumptions and presumptions are perfectly permissible when a Tribunal is called upon to discharge its onerous obligation of ascertaining the just amount of compensation as mandated by Section 168 of the Motor Vehicles Act. 12. The learned counsel for the appellants places reliance on the presumption of prudence permissible under the Second Schedule to the Motor Vehicles Act when compensation is computed under Section **- 5 -** M.A.C.A.No.1310 of 2007 163A of the Act. Even for an unskilled manual worker or a person who has not started earning at all, it is perfectly permissible for the Tribunal to draw the presumption of prudence that even in 1994 when the Second Schedule was introduced the victim must have been earning an income of `.15,000/- per annum. Six years had rolled by before the date of accident in this case, points out the learned counsel. 13. The learned counsel for the appellants further relies on the decisions in _**Laxmi Devi v. Mohammad Tabbar**_ (2008 ACJ 1488) and _**Lata Wadhwa v. State of Bihar**_ (AIR 2001 SC 3218) to contend that at least `.3,000/- per mensem can safely be assumed to be the monthly income. We find merit in that contention. We shall always bear in mind the principle that it is for the claimant to prove the precise quantum of loss suffered by him. But even in a case where claimant has not with precision discharged this burden, we are certainly of the opinion that the Tribunals can draw reasonable assumptions and presumptions about the undisputable minimum income that must have been earned by the deceased/claimant. It is in that view of the matter that we choose to come to the conclusion that the deceased must have been earning at least an amount of `.3,000/- per mensem. 14. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of `.1,14,000/- (Rupees one **- 6 -** M.A.C.A.No.1310 of 2007 lakh and fourteen thousand only) as compensation in addition to the amounts awarded by the Tribunal as shown below: 1. Medical expenses, funeral expenses and transportation - `.13000/- (`.5,000 + `.5,000 + `.3,000) minus `.6,000/- `. 7,000.00 2. Loss of estate (no amount awarded by the Tribunal) - `. 5,000.00 3. Loss of dependency (`.3,000 x 12 x ½ x 9) = `.1,62,000 minus `. 60,000 -------------`.1,02,000.00 ------------------ Total `.1,14,000.00 ========== 15. The learned counsel for the appellants submits that interest has been awarded by the Tribunal only at the rate of 6% per annum. It is contended that the interest awarded is too meagre and painfully inadequate. We agree with the learned counsel for the appellants. Taking all relevant circumstances into account, we are of the opinion that interest deserves to be awarded at the rate of 7.5% per annum on the entire amount of compensation from the date of the claim to the date of payment. 16. Proportionate costs has been awarded by the Tribunal. We make it clear that proportionate costs must be worked out as per the decision in _**Jeena v. Satheesh Babu.K.**_ [2011 (3) KLT 943]. **- 7 -** M.A.C.A.No.1310 of 2007 17. In the result, (a) The appeal is allowed in part. (b) The appellants are found entitled to a further amount of `.1,14,000/- (Rupees one lakh and fourteen thousand only) in addition to the amount already awarded by the Tribunal. (c) We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the claim to the date of payment. (d) The proportionate costs, we direct, shall be calculated as held in _**Jeena's case**_ (supra). (e) All other directions of the Tribunal are upheld. Sd/R.Basant, Judge Sd/- K.Vinod Chandran, Judge. vku/- - true copy -