Lali Viswambaran and others v. Prasannan T.S. and Reliance General Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 26TH DAY OF MAY 2017/5TH JYAISHTA, 1939** **MACA.No. 1261 of 2012** **----------------------AGAINST THE COMMON AWARD IN OP(MV).1924/2008 of M.A.C.T.,ERNAKULAM DATED 11-01-2012** ## **APPELLANTS/PETITIONERS:** - **-----------------------** ## **1. LALI VISWAMBARAN** - **W/O.LATE VISWAMBARAN, AGED 37 YEARS, PADIKKATHARA HOUSE, NADAKKAVU UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE KANAYANNOOR TALUK, ERNAKULAM.** **2. VIVEK P.V., AGED 13 YEARS** **S/O.LATE VISWAMBARAN, MINOR REP.BY HIS MOTHER AND NATURAL GUARDIAN LALI VISWAMBARAN W/O.LATE VISWAMBARAN, AGED 37 YEARS,PADIKKATHARA HOUSE, NADAKKAVU UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE KANAYANNOOR TALUK, ERNAKULAM.** ## **3. NARAYANAN,** **S/O.KUNJUPILLA, PADIKKATHARA HOUSE, NADAKKAVU UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE KANAYANNOOR TALUK, ERNAKULAM DISTRICT. (DIED)** **4. SAVITHRI, AGED 81 YEARS** - **W/O.NARAYANAN, PADIKKATHARA HOUSE, NADAKKAVU UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.MATHEWS K.PHILIP** ## **RESPONDENTS/RESPONDENTS:** - **------------------------** **1. PRASANNAN T.S.** - **S/O.SREEDHARAN, THYTHARAYIL HOUSE, PULLIYADU BHAGOM ULLALA P.O., THALAYAZHAM VILLAGE, VAIKOM TALUK KOTTAYAM DISTRICT.** **2. RELIANCE GENERAL INSURANCE COMPANY LIMITED, MARINE DRIVE XL/3599, 4TH FLOOR ELIZABETH ALEXANDER MEMORIAL BUILDING SHANMUGHAM ROAD, ERNAKULAM DISTRICT, KOCHI.** **R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** ## **-----------------------------------------------** M.A.C.A.No.1261 of 2012 **-----------------------------------------------** Dated this the 26[th] day of May, 2017 ## **J U D G M E N T** ## Ravikumar, J. The appellants, who are the legal heirs of one Viswambaran who died in a motor vehicle accident occurred on 3.4.2008, preferred this appeal on being aggrieved by and dissatisfied with the quantum of compensation granted as per the award in O.P.(MV)No.1924/08 by the Motor Accidents Claims Tribunal, Ernakulam. The Tribunal awarded an amount of ₹5,32,506/- as compensation with interest @ 8% per annum from the date of petition till realisation as per the award dated 11.1.2012. In fact, during the pendency of the claim petition itself, the 3[rd] appellant/3[rd] claimant, the father of the deceased, died. 2. The accident that led to the filing of the above mentioned claim petition had occurred on 3.4.2008 at about 3.15 p.m. while the deceased was travelling as a pillion rider on a motor cycle M.A.C.A.1261/12 :-2-: bearing registration No.KL-7 AY 3027, through VaikomErnakulam road. When they reached at Toll Juma Masjid, a van bearing registration No.KL-36/7694 came from the opposite side and dashed against the said motor cycle. The deceased sustained fatal injuries and he succumbed to the injuries while undergoing treatment, on the same day itself. Alleging that he was a head load worker and was earning 7,500/- per month and claiming an₹ amount of 8 lakhs as compensation, the aforementioned claim₹ petition was filed. The said claim petition was enquired into along with O.P.(MV)No.1938 of 2008. The evidence were adduced jointly in those cases. The evidence consisted only of the documentary evidence on the side of the petitioners as Exts.A1 to A23. The Tribunal, after considering the evidence on record, passed the impugned judgment as aforesaid. As noticed hereinbefore, it is contending that the petitioners were denied 'just compensation', the captioned appeal was preferred, seeking for enhancement of the quantum of compensation. 3. We have heard the learned counsel for the appellants and also the learned counsel appearing for the 2[nd] respondent. There is no dispute regarding the accident and the cause of M.A.C.A.1261/12 :-3-: accident as the negligence on the part of the 1[st] respondent and also the liability to indemnify the insured owner of the offending vehicle. In such circumstances, the only question to be considered is whether or not the appellants are entitled to get enhanced compensation. 4. The learned counsel for the appellants contended that despite the production of Ext.A11 wage slip pertaining to the year 2006, the Tribunal had fixed the monthly income of the deceased only notionally. It is further contended that even if it was to be fixed notionally, the fixation of notional income as Rs.4,000/- is too low and it invites interference. There is no dispute regarding the multiplier adopted by the Tribunal. So also, there is no dispute regarding the deduction of one third of the income towards personal and living expenses of the deceased while quantifying the amount under the head 'loss of dependency', taking into account the number of dependents of the deceased. The compensation granted under the heads 'funeral expenses', 'loss of consortium' and 'loss of love and affection' warrant modification, it is submitted. The learned counsel appearing for the 2[nd] respondent resisted the contentions and contended that a M.A.C.A.1261/12 :-4-: bare perusal of the schedule of compensation given in the impugned judgment would reveal that the appellants were granted 'just compensation'. 5. In the claim petition, it was stated that the deceased was a head load worker and he was earning 7,500/- per month.₹ Evidently, in support of the said contention, the appellants have produced Ext.A11. However, it is a wage slip pertaining to the year 2006 and the accident had occurred in the year 2008. If the deceased was continuing as a headload worker what was the difficulty in producing a recent wage slip. If the appellants could produce a wage slip of the year 2006, they could not be heard to say that they were not in a position to produce the latest wage slip. That apart, the said document was not proved before the Tribunal. In such circumstances, we cannot find fault with the Tribunal in arriving at a conclusion that the appellants had failed to prove the occupation as also the income of the deceased. In that view of the matter, the fixation of the monthly income of the deceased notionally for calculation purpose cannot be said to be faulty. Still, the question to be decided is whether the fixation of ₹4,000/- as monthly income notionally invites interference. In M.A.C.A.1261/12 :-5-: that regard, according to us, the decision of the Honourable Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** can guide on that issue. Taking note of the fact that in that case, in respect of an accident which occurred in the year 2004, the Honourable Apex Court had notionally fixed the monthly income of a coolie as 4,500/-, we are of the view that it would be just and₹ proper to fix the monthly income of the deceased at 5,500/-₹ notionally. Accordingly, it is fixed. Based on the monthly income so fixed, if the compensation payable under the head 'loss of dependency' is re-assessed, the amount payable is 6,16,000/-₹ (₹5,500x12x14x2/3). After deducting the amount of 4,48,000/-₹ awarded by the Tribunal under that head, the appellants would be entitled to get an amount of 1,68,000/- additionally, under₹ that head. It is awarded. The amounts awarded by the Tribunal towards 'funeral expenses' and as compensation for 'loss of consortium', are definitely very meagre. The Tribunal had granted only a sum of 7,500/- towards 'funeral expenses'. In the₹ light of the decision of the Apex Court in **Rajesh v. Rajbir Singh [2013(3) KLT 89(SC)]** , in the absence of evidence for higher M.A.C.A.1261/12 :-6-: expenses, a minimum of 25,000/- has to be granted under that₹ head. In the said circumstance, we are inclined to grant an amount of 17,500/- additionally under that head. Going by the₹ same decision, a sum of 1₹ lakh shall be the minimum compensation payable towards 'loss of consortium' in a claim petition moved by the surviving spouse, under Section 166 of the MV Act for compensation for the death of his/her spouse. The Tribunal had granted only an amount of 20,000/- under that₹ head. In the light of the decision, we are inclined to grant an amount of 80,000/- additionally. Towards the compensation for₹ 'loss of love and affection', the Tribunal had granted only an amount of 30,000/-. Taking note of the fact that the 2₹ nd appellant was a minor at the time of the death of his father and the deceased was then survived by his aged parents, aged 83 and 77 years respectively, we are inclined to grant an amount of ₹30,000/- additionally. Despite the persuasive arguments made by the learned counsel for the appellants, we do not find any reason to interfere with the compensation granted under the other heads. In the light of the discussion as above, the appellants are entitled to get an additional compensation of M.A.C.A.1261/12 :-7-: ₹2,95,500/-. It is made clear that out of the said amount, the 1st appellant alone is entitled to get the additional compensation of ₹80,000/- along with interest thereon granted towards 'loss of consortium'. The appellants 2 and 4 alone are entitled to get the additional compensation of 30,000/- along with interest thereon₹ granted towards 'loss of love and affection'. The additional compensation of 2,95,500/- will carry interest @ 8% per annum₹ from the date of petition till realisation. The 2[nd] respondent is directed to deposit the additional compensation along with interest within a period of 2 months from the date of receipt of a copy of this judgment. We are maintaining the ratio fixed by the Tribunal in the matter of apportionment of compensation. There will be no order as to costs. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/31.5.17 //True copy// P.A.to Judge