Laila Beevi v. Rajan T. Shetty and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937** **MACA.No.273 of 2007 ( ) ------------------------AGAINST THE AWARD IN OPMV 459/2001 of M.A.C.T., KOLLAM, DATED 15-10-2004.** ## **APPELLANT(S)/APPELLANTS/PETITIONER:** **-----------------------------------** **1. LAILA BEEVI,** - **W/O.ISMAIL KUNJU, PUTHENPURAIKKAL KIZHAKKATHIL, POROOKKARA, PANMANA, EDAPPALLIKOTTA,KARUNAGAPPALLY, KOLLAM.** **2. IRSHADU, AGED 10 YEARS (MINOR),** - **S/O.ISMAIL KUNJU, PUTHENPURAIKKAL KIZHAKKATHIL, POROOKKARA, PANMANA, EDAPPALLIKOTTA,KARUNAGAPPALLY, KOLLAM.** **3. EJILA, AGED 8 YEARS (MINOR),** - **D/O.ISMAIL KUNJU, PUTHENPURAIKKAL KIZHAKKATHIL, POROOKKARA, PANMANA, EDAPPALLIKOTTA,KARUNAGAPPALLY, KOLLAM.** **4. AJIMAL, AGED 6 YEARS (MINOR),** - **S/O.ISMAIL KUNJU, PUTHENPURAIKKAL KIZHAKKATHIL, POROOKKARA, PANMANA, EDAPPALLIKOTTA,KARUNAGAPPALLY, KOLLAM.** **MINORS REP.BY MOTHER 1ST APPELLANT, LAILA BEEVI)** **BY ADV.SRI.C.RAJENDRAN** ## **RESPONDENT(S)/RESPONDENTS:** - **--------------------------** **1. RAJAN T.SHETTY,S/O.THIMMAPPA SHETTY, KUNJUMBATHOTTA, KAVOOR MADYA VILLAGE(OWNER).** **2. VINCENT CRASTA, S/O. XAVIER CRASTA, R/A ZEENATHADKA HOUSE, PORADALA, KASARAGOD TALUK,(DRIVER).** **3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD.,BRANCH OFFICE, VARANASI TOWERS, MISSION STREET, MANGALORE.** **4. SHASHIDHARAN PILLAI, S/O.AYYAPPAN PILLAI, KHRICA OPERATOR NO.70, NMPT PANAMBUR,(OWNER-CUM-DRIVER).** **5. THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., BRIDGE ROAD, BALMATTA, MANGALORE.** **R5 BY ADV.SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- ## **M.A.C.A. No.273 of 2007** -------------------------------------------------------------Dated this the 24[th] day of February, 2016 ## **JUDGMENT** ## **P.N.RAVINDRAN, J** The appellants are the claimants in O.P.(M.V.) No.459 of 2001 on the file of the Motor Accidents Claims Tribunal, Kollam, a petition filed by them claiming the sum of 15,00,000/- as compensation from the respondents for₹ the death of late Ismail Kunju, husband of the first claimant and father of claimants 2 to 4 in a motor accident that took place at about 2.1.5 p.m., on 08.01.2001. They had in the claim petition averred that, while the victim of the accident was travelling as pillion rider on a scooter bearing registration No.KA-19E/8738, owned and driven by the fourth respondent before the tribunal and insured with the fifth respondent, a stage carriage bus bearing registration _**M.A.C.A. No.273 of 2007**_ 2 No.KA-19A/737, owned by the first respondent, driven by the second respondent and insured by the third respondent, collided with the scooter and in that accident the pillion rider sustained serious injuries and he succumbed to the injuries sustained by him on the same day while undergoing treatment at Public Health Centre, Surathkal. The appellants had in the claim petition averred that the accident took place on account of the negligence of the 2[nd] respondent, the driver of the stage carriage bus. Though respondents 1, 2, 4 and 5 were served, they did not enter appearance, with the result they were set exparte. The third respondent, the insurer of the stage carriage bus entered appearance and filed a written statement admitting the fact that the stage carriage bus was covered by a valid policy of insurance on the relevant date. It however contended that there was no negligence on the part of the second respondent and that the compensation claimed is exorbitant and excessive. 2. Before the tribunal, the first claimant namely _**M.A.C.A. No.273 of 2007**_ 3 the wife of the victim was examined as PW1 and a superior officer of the victim of the accident, who was an employee of Mangalore Port Trust was examined as PW2. PW3, an eye witness to the accident was also examined. The claimants also produced and marked as Exts.A1 to A14. No evidence oral or documentary was adduced on the side of the respondents. The Motor Accidents Claims Tribunal considered the rival contentions and held relying on the testimony tendered by PW2 an eye witness to the accident and the police records that the accident took place on account of the rash and negligent driving of the stage carriage bus by the second respondent. The tribunal thereafter proceeded to quantify the compensation payable to the claimants and taking the monthly income of the deceased as 5,000/-, awarded the sum of 6,30,000/-, as₹ ₹ compensation under various heads as shown below: _**M.A.C.A. No.273 of 2007**_ 4 _**Heads Amount**_ Loss of dependency ₹5,99,999/Loss of consortium ₹10,000/Love and affection ₹10,000/Pain and suffering ₹5,000/Transportation& funeral expenses ₹5,000/Total ₹6,30,000/- 3. Though the claimants relied on Ext.A8 to prove the income of the victim, that was discarded on the ground that it does not bear the seal and signature of the authorized officer of the Mangalore Port Trust notwithstanding the fact that it was proved in evidence by PW2. The tribunal directed the third respondent, the insurer of the stage carriage bus to deposit the amount awarded as compensation with interest at 9% per annum from 14.05.2001 till the date of deposit. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimants have filed this appeal. 4. We heard Sri.Ranjith K.R, learned counsel appearing for the appellants and Sri.M.A.George, learned counsel appearing for the third respondent insurance _**M.A.C.A. No.273 of 2007**_ 5 company. The deceased was admittedly employed as Senior Store Worker in New Mangalore Port Trust. Ext.A10 identity card discloses that his date of birth as per his service records was 20.05.1960. The accident took place on 08.01.2001. As on the date of the accident, he had completed 40 years of age. Ext.A8 arrears statement for the year 2000-2001 which was marked in evidence through PW3/Deputy Traffic Manager in the Administrative wing of the New Mangalore Port Trust discloses that the last drawn salary of the victim in December, 2000 was 8,487/-₹ inclusive of all allowances. The said document also shows that he was drawing salary in the sale of pay of 3840-₹ ₹6728, the net salary being 8,487/-. The tribunal has₹ discarded the said document on the short ground that it does not bear the seal or signature of the competent authority of New Mangalore Port Trust notwithstanding the fact that it was marked through PW3, a competent officer of the New Mangalore Port Trust. Apart from the said fact, the _**M.A.C.A. No.273 of 2007**_ 6 statement also refers to the fact that the income tax was deducted from the salary paid to him. The tribunal has after ignoring the said document, proceeded to award compensation for loss of dependency taking 5,000/-as his₹ monthly income. In our opinion, in the light of the testimony tendered by PW3 and the fact that it was produced from proper custody by a competent officer of the New Mangalore Port Trust, the tribunal erred in discarding Ext.A8. Having given anxious consideration to all aspects of the matter, we are of the opinion that Ext.A8 can be safely relied on to fix the monthly income of the deceased for the purpose of awarding compensation under the head loss of dependency. 6. The Apex Court has in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] held that, in the case of those on a regular scale of pay an increment in the income for future prospects should be factored into for the purpose of awarding compensation under the head loss of dependency. In the case of victims aged between 40-50 years, 30% of _**M.A.C.A. No.273 of 2007**_ 7 their monthly income can thus be taken into account. Computed on that basis, the monthly income of the victim of the accident will have to be taken as 8,487+₹ ₹2,546= ₹11,033/-. After deducting 20% thereof, namely the sum of ₹2,206/- towards tax liability, the net salary of the victim of the accident is 8,827/- per mensem. As stated earlier, the₹ deceased had completed 40 years of age and he was nearing 41 years. Applying the principles laid down by the Apex Court in _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another**_ (2009 (6) SCC 121), the multiplier applicable group is 14. The deceased was maintaining a family consisting of his wife and three children who were totally dependant on him. In such circumstances only 1/4[th] of the compensation awarded can be deducted towards the personal expenses of the deceased. Computed on that basis, the compensation payable to the claimants under the head loss of dependency would be ₹8,827x12x14x3/4=₹11,12,200/-. The tribunal has awarded _**M.A.C.A. No.273 of 2007**_ 8 only the sum of ₹5,99,909/under that head. We accordingly award to the appellants/claimants an additional sum of 5,12,201 (₹ ₹11,12,200-5,99,909) as compensation under the head loss of dependency. 7. The tribunal has by the impugned award awarded the sum of 10,000/- towards loss of consortium to₹ the wife, 10,000/- towards loss of love and affection to the₹ three minor children, 5,000/- towards pain and suffering₹ and 5,000/- towards transportation and funeral expenses.₹ The Apex Court has in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] held that, in cases of fatal accidents, the surviving spouse should invariably be awarded the sum of ₹1,00,000/as compensation under the head loss of consortium. The Apex Court has in the very same decision held that in the absence of evidence to the contrary regarding higher expenditure, a minimum amount of ₹25,000/- should be awarded under the head funeral expenses. Applying the principles laid down in the aforesaid _**M.A.C.A. No.273 of 2007**_ 9 decision, we are of the opinion that the appellants/claimants are entitled to a further sum of 90,000/- under the head₹ compensation for loss of consortium and the sum of ₹20,000/under the head funeral expenses and we accordingly award the same. 8. The tribunal had awarded only the sum of ₹5,000/- towards pain and suffering. The Apex Court has consistently awarded the sum of 10,000/- towards pain and₹ suffering even in cases of instantaneous death. We accordingly award a further sum of 5,000/- under that₹ head. The tribunal has not awarded any amount towards loss to the estate. The deceased was aged only 41 years. He was regularly employed in New Mangalore Port Trust, a Government of India undertaking, which ensures security of tenure. In such circumstances, we are of the opinion that, on a modest estimate the tribunal ought to have awarded the sum of 10,000/- under that head. We accordingly₹ award the sum of ₹10,000/- as compensation to the _**M.A.C.A. No.273 of 2007**_ 10 appellants/claimants under the head loss to the estate. 9. The tribunal has in the impugned award awarded only 10,000/- as compensation for loss of love₹ and affection and parental care to three minor children of the victim of the accident who were aged only 10 years, 8 years and 6 years respectively at the time of the accident. The Apex Court has in _**Kala Devi and Others v. Bhagwan Das Chauhan and Others**_ (2015 (2) SCC 771), awarded to each minor children of the victim of a motor accident the sum of 1,00,000/- each, as compensation under the head₹ loss of love and affection, applying the principles laid down by the Apex Court in _**Jijiu Kuruvila v. Kunjujamma Mohan**_ (2013(9) SCC 166) _._ In such circumstances, notwithstanding the fact that in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Apex court had awarded only consolidated sum of 1,00,000/- under that head to two₹ minor children, we are of the opinion that the later decision of the Apex Court which has considered the dictum in _**M.A.C.A. No.273 of 2007**_ 11 _**Rajesh v. Rajbir Singh**_ (supra) as also other decisions on the subject can be relied on to award compensation for loss of love and affection and parental care and guidance. We accordingly award an additional compensation of ₹2,90,000/- under the head loss of love and affection and parental care to the three minor children of the deceased. The compensation awarded under the other heads does not in our opinion call for any enhancement. We accordingly award to the appellants/claimants an additional sum of ₹9,27,201/(5,12,201+90,000+2,90,000+20,000+10,000+5,000) as compensation. The third respondent insurer shall deposit the said amount together with interest at the rate of 9% per annum from the date of claim petition (14.05.2001) till the date of deposit. While computing the interest payable, the insurer will be entitled to deduct interest for the period of 763 days, in the light of the order passed by us today while allowing the application to condone the delay in filing the _**M.A.C.A. No.273 of 2007**_ 12 appeal. Upon such deposit being made, 50% of the amount deposited shall be released to the first appellant/first claimant and the balance amount shall be disbursed equally to claimants 2, 3 and 4. No costs. ## _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** //True Copy// P.A. to Judge ss