K.T. Saradha and others v. Rajesh, M. Savithri and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939 MACA.No. 1079 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1243/2007 of M.A.C.T OTTAPPALAM DATED 14-12-2010 ## APPELLANT(S)/PETITIONERS: ------------------------ 1. K.T.SARADHA, W/O.LATE ACHUTHANKUTTY, PATTIPARAMBU VEEDU, MANGALAM, LEKKIDI-PERUR I VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. UNNIKRISHNAN, S/O.LATE ACHUTHANKUTTY, PATTIPARAMBU VEEDU, MANGALAM, LEKKIDI-PERUR I, VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 3. SMITHA, D/O.LATE ACHUTHANKUTTY, - PATTIPARAMBU VEEDU, MANGALAM, LEKKIDI-PERUR I VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 4. SUBHASH, S/O.LATE ACHUTHANKUTTY, - PATTIPARAMBU VEEDU, MANGALAM, LEKKIDI-PERUR I VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. RAJESH, S/O.GOPALAKRISHNAN, KUTTATH HOUSE, CHERUTHURTHY (PO), THRISSUR DISTRICT., (DRIVER OF KL-7-T-1447 AMBASSADOR), PIN-679531 2. M.SAVITHRI, QUAMBIL NIVAS, VALLATHOL NAGAR P.O., THRISSUR DISTRICT, (OWNER OF KL-7-T-, 1447 AMBASSADOR), PIN-679531. 3. UNITED INDIA INSURANCE CO.LTD., PARK HOUSE BUILDING, 2ND FLOOR, ROUND NORTH, THRISSUR (PO), PIN-680001. (OWNER OF KL-7-T-1447, AMBASSADOR). R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. No.1079 OF 2011** **==========================** Dated this the 22[nd ] day of November, 2017 ## **JUDGMENT** _Ravikumar, J._ The legal heirs of the victim of the accident that led to the filing of O.P.(MV)No.1243 of 2007 on the files of the Motor Accidents Claims Tribunal, Ottapalam preferred this appeal on being dissatisfied with and aggrieved by, the quantum of compensation granted as per the award passed thereon. According to them, they were deprived of just compensation. The deceased Achuthankutty was a pedestrian. On 11.3.2007, while he was walking alongside Ottapalam-Palakkad public road, he was knocked down by the car bearing Reg.No.KL7/T-1447, driven by the first respondent. He succumbed to the injuries sustained, enroute to the hospital. In such circumstances, the appellants - claimants had filed the claim petition under section 166 of **M.A.C.A.1079/2011** 2 the Motor Vehicles Act seeking a compensation of Rs.5 lakhs. As per the impugned award, an amount of Rs.1,67,000/- was granted as compensation with interest at the rate of 7% per annum from the date of the petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 2. Heard the learned counsel for the appellants and the learned counsel for the third respondent insurance company. 3. In view of the absence of dispute regarding the cause of the accident as also the liability of the third respondent to indemnify the second respondent, the insured owner of the offending vehicle, the sole question to be considered in this appeal is whether or not the appellants are entitled to enhanced compensation. 4. The appellants are respectively the widow and children of the deceased. Their main grievance is that the Tribunal had erroneously assessed the monthly income of the deceased and that deprived them `just compensation'. In the claim petition, it was specifically averred that the deceased was an agriculturist and was earning Rs.5,000/- per month. He was then aged 62 years. According to them, disregarding **M.A.C.A.1079/2011** 3 such averments, the Tribunal had fixed the monthly income for calculation purpose as Rs.2,500/-. Upon hearing the learned counsel on both sides, we are of the firm view that there is substance in the contention of the appellants. 5. Before the Tribunal, the second appellant was examined as PW1 and on the side of the appellants Exts.A1 to A8 were got marked. No evidence, either oral or documentary, was adduced on the side of the respondents. At the same time, it is to be noted that no documentary evidence revealing the occupation and income of the deceased was produced by the appellants. In such circumstances, the Tribunal cannot be said to have committed an error in fixing the monthly income notionally, for calculation purpose. At the same time, according to us, fixation of the monthly income notionally as Rs.2,500/- invites interference. The appellants claimed only Rs.5,000/- as the monthly income of the deceased who was aged 62 years at the time of his accidental death. We do not find any reason at all to disbelieve the claim of the appellants that the deceased was earning Rs.5,000/- per month taking into account the year of the accident as also the age of the deceased at the relevant point of time. **M.A.C.A.1079/2011** 4 In such circumstances, we are inclined to accept the claim of the appellants and to fix the monthly income of the deceased notionally as Rs.5,000/- for calculation purpose. Taking into account the number of surviving dependent family members, the Tribunal had rightly identified the rate of deduction to be made from the income of the deceased, reckoning the personal and living expenses which the deceased must have incurred, had he been alive. In the light of the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the Tribunal had correctly deducted 1/3[rd] of the income of the deceased. The Tribunal had also correctly identified the multiplier as '7' in the light of the schedule given in the said decision, with reference to the age of the deceased. In such circumstances, a re-assement of compensation payable for loss of dependency is required only by substituting the monthly income. The Tribunal had granted an amount of Rs.1,40,000/-. In view of the re-fixed monthly income, the appellants are entitled to get Rs.1,40,000/- (5000x12x7x2/3-140000) additionally. 6. We are of the view that in addition to the said amount, the appellants are also entitled to get enhancement of compensation under **M.A.C.A.1079/2011** 5 certain other heads. Towards loss of consortium, the Tribunal had granted only an amount of Rs.5,000/-. The first appellant alone is entitled to get the said compensation. In the light of the decision of the Apex Court in **National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)],** the amount payable towards loss of consortium to the surviving spouse on the death of his/her spouse, in a claim under section 166 of the M.V Act, is Rs.40,000/-. The Tribunal had already granted an amount of Rs.5,000/-. After deducting the said amount, the first appellant who is the widow of the deceased is entitled to get an amount of Rs.35,000/- additionally. Towards loss of love and affection, the Tribunal had granted only Rs.15,000/- to appellants 2 to 4. True that, at the time of death of their father, they were aged respectively 33, 27 and 25 years respectively. Considering the relationship between the appellants 2 to 4 and the deceased, and also the age of the appellants at the time of the accidental death of Achuthankutty we are inclined to grant Rs.15,000/- additionally thereunder. Towards funeral expenses, only an amount of Rs.5,000/was granted. In the light of **Pranay Sethi** 's case, the amount payable towards funeral expenses is Rs.15,000/-. Since the Tribunal had **M.A.C.A.1079/2011** 6 already granted an amount of Rs.5,000/-, the appellants are entitled to get only an additional amount of Rs.10,000/- under the said head. Towards pain and suffering, the Tribunal did not grant any amount. As noticed hereinbefore, the deceased Achuthankutty breathed his last enroute to the hospital. In such circumstances, we are inclined to grant Rs.10,000/- towards pain and suffering. Towards damage to clothing, no amount was granted. The nature of the injuries would reveal that the dresses worn by the deceased must have been spoiled in the accident. In such circumstances, we are inclined to grant Rs.1,000/- under the said head. In the light of assessment/reassessment made by us, the appellants are entitled to get an additional compensation of Rs.2,11,000/-. The additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. It is made clear that out of the said amount, the first appellant alone will be entitled to get Rs.35,000/- granted additionally under the head `loss of consortium'. Appellants 2 to 4 are entitled to get additional compensation granted under the head `loss of love and affection'. All the appellants are entitled to a share in the balance amount. The Tribunal had allotted 70% of the amount awarded to the **M.A.C.A.1079/2011** 7 first appellant and only the balance amount was apportioned among other appellants. We maintain the said apportionment viz., at the ratio of 70:30. Needless, to say that appellants 2 to 4 are entitled to get the balance amount viz., 30% of the additional compensation. It shall be apportioned among them equally. The third respondent shall deposit the additional compensation along with interest thereon, within a period of two months from the date of receipt of a copy of this judgment. Appeal is disposed of, as above. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **B.SUDHEENDRA KUMAR (JUDGE)** **spc/**