Laila A.V. and others v. Rejeena K.J. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939 MACA.No. 1553 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1241/2011 of M.A.C.T.,ERNAKULAM DATED 03-04-2012 APPELLANT(S)/PETITIONER: ---------------------------------- 1. LAILA A.V, AGED 49 YEARS W/O.LATE P.K.ABDUL SALAM, POOPPADY HOUSE, MLA ROAD, PANANGAD P.O., KOCHI-06. 2. SHAMEER ABDUL SALAM S/O.LATE P.K.ABDUL SALAM, POOPPADY HOUSE, MLA ROAD, PANANGAD P.O., KOCHI-06. - 3. MUHAMMED SHIFFIN ABDUL SALAM S/O.LATE P.K.ABDUL SALAM, MINOR, AGED 17 YEARS REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN LAILA A.V., THE 1ST APPELLANT (RECORDED) 4. AISHA, W/O.LATE KOCHUNNI, AGED 81 YEARS,POOPADY HOUSE, KOTTAKKAL P.O., MUNDAKKAYAM. BY ADVS.SRI.M.M.SAIDU MUHAMMED SMT.REENA MATHEW (THEVALAKKATTU) RESPONDENT(S):RESPONDENTS ----------------------------------- 1. REJEENA K.J, W/O.K.J.JOSE, KALAPARAMBIL HOUSE, MADAVANA, PANANGAD P.O.,KUMBALAM, ERNAKULAM, PIN-682 506. 2. K.J.ARUN, S/O.K.J.JOSE, KALAPARAMBIL HOUSE, MADAVANA, PANANGAD P.O.,KUMBALAM, ERNAKULAM, PIN-682 506. 3. M/S.ORIENTAL INSURANCE COMPANY LTD BRANCH OFFICE, TRIPUNITHURA, PIN-682 301. *(AS PER ORDER DATED 21.6.2013 IN I.A.NO.1583/2013 IN M.A.C.A.NO.1553 OF 2012, THE NEXT FRIEND AND GUARDIAN, REPRESENTING THE THIRD APPELLANT, IS DISCHARGED SINCE THE APPELLANT HAS BECOME A MAJOR AND IS CAPABLE OF CONDUCTING THE CASE HIMSELF) R3 BY ADV. SRI.VPK.PANICKER R3 BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.1553 OF 2012** **==========================** Dated this the 24[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 3.4.2012 in O.P.(MV) No.1241 of 2011 passed by the Motor Accidents Claims Tribunal, Ernakulam. During the pendency of this appeal, the fourth appellant died and a memo to that effect has been filed and permission was sought to proceed the appeal at the instance of the surviving appellants. There is no reason to decline permission as sought for. 2. The deceased Abdul Salam was a retired government servant. The accident in which Abdul Salam lost his life occurred at 11 p.m on 27.2.2011 and he succumbed to the injuries on the very next day. The aforesaid claim petition was filed under section 166 of the Motor **M.A.C.A.1553/2012** 2 Vehicles Act seeking a total compensation of Rs.10,00,000/- for the death of Abdul Salam by his widow, children and mother. The Tribunal has awarded a sum of Rs.2,09,000/- as compensation with interest at the rate of 8% per annum from the date of the petition till realisation with proportionate cost. Essentially, it is seeking enhancement of the quantum of compensation that this appeal has been filed. 3. On the side of the appellants, one P.B Sheriff was examined before the Tribunal as PW1 besides getting marked Exts.A1 to A10. No evidence, either oral or documentary, was adduced by the respondents. 4. We have heard the learned counsel for the appellants and the learned counsel for the third respondent insurance company. 5. There is no dispute regarding the accident, cause of the accident as also the liability of the third respondent insurer to indemnify the insured owner of the offending vehicle. Hence, we are only called upon to consider the question whether the appellants are **M.A.C.A.1553/2012** 3 entitled to get enhanced compensation. The main grievance of the appellants is that the Tribunal has erroneously estimated the monthly income of the deceased for calculating the compensation for loss of dependency. The Tribunal fixed the monthly income of the deceased as Rs.2,500/-. That apart, it is contended that the Tribunal has wrongly adopted the multiplier. Going by Ext.A9 certificate, the deceased was aged 58 years at the time of the accident. The Tribunal has adopted the multiplier as '7'. In view of schedule given in the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier applicable for the age group of 56 to 60 years is '9'. Therefore, the multiplier has to be taken as '9'. Evidently, the Tribunal has rightly effected deduction of ¼ of the income towards personal and living expenses of the deceased reckoning the number of dependent family members in terms of the said decision. As noticed hereinbefore, the deceased was a government servant. He retired from service as Farm Manager Gr.II. We are of the view that in respect of a person who retired from service **M.A.C.A.1553/2012** 4 as a gazetted officer, the monthly income fixed by the Tribunal, viz., Rs.2,500/- is too low. In such circumstances, we are inclined to fix the monthly income of the deceased as Rs.5,000/- notionally for calculation purpose. Based on the re-fixed monthly income and the multiplier, the compensation under the head 'loss of dependency' has to be re-assessed. On such re-assessment, the appellants will be entitled to get an amount of Rs.4,05,000/- (5000x12x9x3/4). The Tribunal has already awarded a sum of Rs.1,57,500/- under the said head. After deducting the said amount, the appellants are entitled to get an additional sum of Rs.2,47,500/- under the head 'loss of dependency'. Towards 'loss of consortium', the Tribunal has granted only a sum of Rs.5,000/- and towards 'funeral expenses', only an amount of Rs.7,500/- was granted. The sums of compensation awarded under the said heads invite interference in the light of the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** Going by the said decision, in an application under section 166 of the M.V Act seeking compensation for death, the surviving **M.A.C.A.1553/2012** 5 spouse is entitled to get a minimum of Rs.1,00,000/- towards the head 'loss of consortium'. The first appellant widow of deceased Abdul Salam was aged only 48 years at the time of accidental death of her husband. Hence, we are inclined to grant an additional sum of Rs.95,000/- under the head 'loss of consortium'. In the light of the decision in **Rajesh** 's case, in the absence of evidence for higher expenses, a minimum of Rs.25,000/- shall be granted towards funeral expenses. Hence, an additional sum of Rs.17,500/- is granted under the said head. Appellants 2 and 3 were aged 25 years and 16 years at the time of accidental death of their father. The fourth respondent, the mother of the deceased was then aged 80 years. We are inclined to grant an amount of Rs.50,000/- under the head loss of 'love and affection'. The Tribunal has already awarded a sum of Rs.25,000/ under the said head. Hence, appellants 2 and 3 are entitled to get an additional sum of Rs.25,000/- thereunder. Towards loss of estate, only an amount of Rs.2,000/- was awarded. We are inclined to grant Rs.8,000/- additionally under the said head. In the light of the **M.A.C.A.1553/2012** 6 discussions as above, the appellants are entitled to get an additional compensation of Rs.3,93,000/-. It is awarded. Out of the said amount, the first appellant alone will be entitled to get additional compensation granted under the head loss of consortium. Since the fourth appellant is no more, the legal heirs of the fourth appellant will be entitled to get an amount of Rs.20,000/-. The balance amount shall be apportioned between appellants 1 to 3 in the ratio 70:15:15. The third respondent shall deposit the additional compensation along with interest at the rate of 8% per annum from the date of the petition till realisation within two months from the date of receipt of a copy of this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1553/2012** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.1553/2012** 8 **JUDGMENT September, 2010**