Lakshmy and others v. Sandeep V.S., Suresh Babu K.R. and The Manager, New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 28TH DAY OF NOVEMBER 2013/7TH AGRAHAYANA, 1935** ## **MACA.No. 1327 of 2008 ( )** **-----------------------------------** ## **AGAINST THE AWARD IN OP(MV) 1407/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** **----------------** ## **APPELLANTS/PETITIONERS.:** **------------------------------------------** ## **1. LAKSHMY, AGED 48 YEARS,** **W/O. DECEASED THANKAPPAN @ UNNIYAPPAN, PATTERI ALIKKAL HOUSE, P.O. CHITTISSERY, PALIYEKKARA, THRISSUR.** ## **2. JAYAN, AGED 16 YEARS,** - **S/O. THANKAPPAN, MINOR REPRESENTED BY HIS MOTHER LAKSHMY, PATTERI ALIKKAL HOUSE, P.O. CHITTISSERY, PALIYEKKARA, THRISSUR.** **3. VIJAYAN, AGED 16 YEARS,** - **S/O. THANKAPPAN, MINOR REPRESENTED BY HIS MOTHER LAKSHMY, PATTERI ALIKKAL HOUSE, P.O. CHITTISSERY, PALIYEKKARA, THRISSUR.** ## **BY ADV. SRI.N.KRISHNANKUTTY PILLAI** ## **RESPONDENT(S)/DEFENDANTS.:** **------------------------------------------------** ## **1. SANDEEP V.S.,** - **S/O. V.K.SURENDRADAS, VAILAPILLY HOUSE CHUDUVALATHOOR DESOM, SHORNOOR P.O., PALAKKAD DISTRICT.** **2. SURESH BABU K.R., S/O. RAJAN C., KUNNATHAZHATHU HOUSE, NEDUNGOTTOOR P.O. PALAKKAD DISTRICT.** **3. THE MANAGER, NEW INDIA ASSURANCE CO. LTD., IIND FLOOR J.R.J.COMPLEX, OTTAPPALAM, PALAKKAD DISTRICT.** **R3 BY ADV. SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------- M.A.C.A. No.1327 of 2008 --------------------------------------------------------------Dated this, the 28[th] day of November 2013 ## Judgment ## Ramakrishnan, J. The claimants in O.P.(M.V).No.1407/03 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, are the appellants herein. The appellants, who are the wife and children of late Thankachan filed the application for compensation for the death of their breadwinner, who died in a motor vehicle accident, caused on account of the negligent driving of the vehicle by the second respondent, owned by the 1st respondent and insured with the third respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the second respondent and awarded a total compensation of Rs.1,64,000/- on various heads as follows : MACA No.1327/08 2 |**_Head of claim_**|**_Amount awarded_**<br>**_Rs._**| |---|---| |**_Dependency_**|**_128,000.00_**| |**_Loss of consortium_**|**_10,000.00_**| |**_Loss of love and affection_**|**_10,000.00_**| |**_Pain and sufferings of the deceased_**|**_10,000.00_**| |**_Funeral expenses_**|**_3,000.00_**| |**_Hospital expenses_**|**_3,000.00_**| |**_Total_**|**164,000.00**| Dissatisfied with the quantum of compensation awarded, the appellants have filed this appeal, seeking enhancement of compensation. 2. Since the insurance is admitted and respondents 1 and 2 were given notice in the delay condonation application with intimation regarding the filing of the appeal, further notice in the appeal has been dispensed with and we have decided to dispose of the appeal at the admission stage itself after hearing the counsel for the insurance company as well. 3. The counsel for the appellants submitted that the deceased was actually aged 53 years and a papad maker and getting Rs.4,000/- per month, but the Tribunal has taken his age as 58 years and wrongly adopted 8 as the multiplier, which is not MACA No.1327/08 3 correct. The documents produced were not properly considered by the Tribunal. So, the Tribunal ought to have taken the age of the deceased as 53 years and applied the multiplier on that basis. Further, the Tribunal has not taken the future prospects of the deceased in fixing the monthly income as has been held in the decision reported in **Rajesh v. Rajbeer Singh** (2013(3) KLT 89 (SC). The amount awarded under the head pain and sufferings suffered by the deceased is also on the lower side, as he was in the hospital for three days and died only thereafter. The amounts awarded under the heads loss of consortium and love and affection are also on the lower side. The amount awarded under the head funeral expenses is also very low and no amount has been awarded under the head loss of estate. So, according to the learned counsel for the appellants, the appellants are entitled to enhancement of compensation on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that there is no evidence adduced on the side of the appellants either to prove the age of the deceased or his avocation and income. Under such circumstances, MACA No.1327/08 4 the Tribunal was perfectly justified in relying on the age of the deceased shown in the Post-mortem certificate and the First Information Report for assessing compensation. The total compensation awarded is just and proper and no interference is called for with the award at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellants in the petition was that the deceased was aged 50 years and a papad maker, getting Rs.4,000/- per month as his income. They have not produced any documents to prove his age. Though the counsel for the appellants submitted that the documents have been produced, it was not seen marked as well. The only document available to the Tribunal to assess the age of the deceased was only the post mortem certificate and the First Information Report produced, in which the age of the deceased was shown as 58 years. Similarly, there is no evidence adduced on the side of the appellants to prove his income as well. It is true that in the decision reported in **Rajesh** 's case (supra), it has been held that even in the case of self MACA No.1327/08 5 employed and persons with fixed wages, addition has to be made in the case of persons below the age of 40, 50 and 60 years. In this case, there is no accepted evidence adduced, to prove that he was employed at all. Under such circumstances, only a notional income could have been taken by the Tribunal for the purpose of assessing compensation and that was done in this case. But, considering the fact that the accident occurred in the year 2003, the notional income of Rs.2,000/- taken by the Tribunal appears to be on the lower side and also considering the fact that there is possibility of increase in his income on account of his employment, we feel that the monthly income can be re-fixed as Rs.2,500/- per month. As per the decision of the Supreme Court in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), the multiplier applicable to the age group of 58 years, as the deceased was, is 9 and not 8, as taken by the Tribunal. If a re-calculation is made on that basis, the appellants will be entitled to get Rs.1,80,000/- (2500x12x9x2/3), instead of Rs.1,28,000/-, awarded by the Tribunal under the head loss of dependency. We award the said amount under that head. 6 MACA No.1327/08 7. It is seen from the records that the accident occurred on 14.08.2003 and he died on 17.08.2003 while he was undergoing treatment in the hospital. He suffered severe injuries and he may have suffered considerable pain as well. But, the Tribunal has awarded only Rs.10,000/- under the head pain and sufferings, which, we feel is low and it is enhanced to Rs.15,000/-. 8. The counsel for the appellants relied on the decision reported in **Rajesh** 's case (supra) for the proposition that the minimum amount of Rs.1 lakh has to be awarded under the head loss of consortium and Rs.25,000/- under the head funeral expenses. The Supreme Court has considered the factors to be noted for the purpose of assessing compensation under the head loss of consortium, which reads as follows : “The loss of companionship, love, care and protection, etc, the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head.” MACA No.1327/08 7 In that case, the deceased was aged only 33 years and his wife was still younger and considering those aspects, the Apex Court has opined that at least Rs.1 lakh has to be awarded as compensation for loss of consortium, considering the age of the deceased and the age of his wife. In this case, the deceased was aged 58 years and though the age of the first appellant was shown as 48 years in the petition, there is no document produced to prove her age as well. But, in view of the principles laid down in the above decision, regarding as to how the loss of consortium has to be fixed, we feel that the amount of Rs.10,000/- awarded by the Tribunal appears to be on the lower side and we enhance the same to Rs.30,000/- from Rs.10,000/-. Appellants 2 and 3 were aged only 16 years at the time of death of their father. They have lost the love and affection and guidance of their father at their younger age. Considering these aspects, the amount of Rs.10,000/- awarded by the Tribunal under the head love and affection is on the lower side, which, we enhance to Rs.30,000/-. There is no evidence adduced on the side of the appellants to prove the nature of rituals and the MACA No.1327/08 8 expenses incurred for conducting the funeral of the deceased. Under such circumstances, the amount awarded by the Tribunal cannot be said to be on the lower side under the head funeral expenses as well. No amount has been awarded under the head loss of estate. A conventional amount has to be awarded under the head loss of estate even if loss of dependency was considered for the purpose of assessing compensation. The Tribunal found that since the compensation was awarded under the head loss of dependency, no loss of estate need be awarded, appears to be not correct. So, we award an amount of Rs.10,000/- under the head loss of estate. Though persuasive arguments were made by the counsel for the appellants to get enhancement under other heads, we are not impressed by the same as we feel that the amounts awarded under other heads are just and proper. In all, the appellants will be entitled to get an additional amount of Rs.1,07,000/- over and above what has been awarded by the Tribunal, which, the third respondent insurance company is liable to pay with 9% interest per annum from the date of petition till the date of payment. Two months' time is granted to the insurance MACA No.1327/08 9 company to deposit this amount as well. With the above modification of the impugned award passed by the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA No.1327/08 10 MACA No.1327/08 11