Lekha Shaji and Others v. George Mathew, K.P. Shaji, and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937** ## **MACA.No. 115 of 2007 ( ) -------------------------** ## **AGAINST THE AWARD IN OPMV 1408/1999 of M.A.C.T.,KOTTAYAM DATED 6.10.2003** ## **/APPELLANTS/PETITIONERS::** **-----------------------------------------** ## **1. LEKHA SHAJI, HARIMANDIRAM, RUBY NAGAR P.O., CHANGANASSERY.** **2. VISHNU SHAJI (MINOR) OF DO. DO. REP. BY 1ST PETITIONER.** **3. VIVEK SHAJI, (MINOR)** - **OF DO. DO.** **4. BHAVANI SUKUMARAN,** **W/O.LATE K. SUKUMARAN OF DO.** ## **BY ADV. SRI.K.SUBASH CHANDRA BOSE** ## **RESPONDENT/RESPONDENTS:** **---------------------------------------------** **1. GEORGE MATHEW, THOTTUACHALEL HOUSE, VILLOONNI P.O., ARPOOKARA, KOTTAYAM.** **2. K.P. SHAJI, PUTHUPARAMPIL HOUSE, PUTHENCHANDA BHAVAN, MUNDAKKAYAM KARA,, ERUMELY NORTH VILLAGE.** ## **3. UNITED INDIA INSURANCE CO.LTD., KOTTAYAM.** ## **R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No. 115 of 2007** ## **APPENDIX** ## **APPELLANTS' ANNEXURES:** ## **ANNEXURE I: PARTNERSHIP DEED DATED 29.01.1998.** **ANNEXUREII: REGISTRATION CERTIFICATE UNDER KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT.** **ANNEXURE III: RECEIPT SHOWING THE REMITTANCE OF LICENCE FEES FOR THE YEAR 1998-99.** ## **RESPONDENTS' ANNEXURES:** **NIL.** **TRUE COPY** **P.A. TO JUDGE.** **kp/-** ## **P.R.RAMACHANDRA MENON, J & ANIL K. NARENDRAN, J.** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=** M.A.C.A. No. 115 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17[th] day of March, 2016 ## **JUDGMENT** ## _RAMACHANDRA MENON , J._ The claimants are the appellants before this Court. Grievance is in respect of the inadequacy of the compensation awarded by the Tribunal in respect of the death of the husband of the first appellant, father of the second and third appellants and son of the fourth appellant. 2. The accident occurred was on 22.2.1999. The deceased was riding a scooter bearing No. KL 5F/4955, when he was knocked down by a bus bearing No. KL 5C/7947; owned, driven and insured by respondents 1 to 3 before the Tribunal. Because of fatal injuries sustained, he bid farewell to this world, which was sought to be compensated by filing the claim petition before the Tribunal. The owner and driver of the offending vehicle did not choose to contest the matter and were set ex-parte. The case projected before the Tribunal was that, the deceased was running a business with a monthly income of 10,000/-. The₹ evidence adduced before the Tribunal consists of Exts.A1 to A9. M.A.C.A. No.115 of 2007 -2- Nobody was examined either from the part of the claimants or the respondents. Based on the materials on record, the Tribunal arrived at a finding that the accident was solely because of the negligence on the part of the driver of the bus and proceeded to fix the compensation accordingly. 3. Though there was a claim that 10,000/- was the₹ monthly income, the documents relied on, particularly, Exts.A7, A8 and A9, have been discussed in paragraph 8, which disclose that the deceased was having an annual income of 31,350/- as₹ reflected from the profit and loss account. Reference was also made to Ext.A6, wherein it is stated that the deceased was a partner of 'Sukumaran and Company' and was drawing a monthly salary of 2,500/-. It was accordingly, that compensation for₹ dependency was worked out, after deducting 1/3[rd] towards the personal expenses and adopting a multiplier of 15. Awarding amounts under different heads total compensation payable was fixed as 3,34,500/- which is sought to be enhanced by filing this₹ appeal. 4. Heard the learned counsel for the appellant as well as the learned counsel for the Insurance Company. 5. As rightly pointed out by the learned counsel for the M.A.C.A. No.115 of 2007 -3- respondents, no other evidence than the documents referred to and discussed by the Tribunal revealing a monthly salary of ₹2,500/- was produced . The profit and loss account was also referred to and it was accordingly that annual income was fixed as 31,350/-.₹ 6. The learned counsel for the appellants points out that the document produced before the Tribunal is only in respect of one partnership establishment and that there was another partnership establishment, with the wife of the deceased as a partner, which was started one year back and came to be closed down because of the demise of the husband. But no evidence is adduced in this regard and nobody was examined before the Tribunal. The learned counsel points out that, some additional documents including the particulars of the said partnership business have been sought to be produced along with I.A.No.997 of 2016 before this Court. The accident was in the year 1999 and four persons, the widow, two minor children and mother were depending upon the deceased. It is also relevant to note that the deceased was having a scooter of his own and it was during the course of such riding, that the accident had occurred. These are some pointers with regard to the income generating capacity and M.A.C.A. No.115 of 2007 -4- considering the totality of the facts and circumstances, we find it appropriate to reckon 3,500/- as the monthly income to fix the₹ compensation accordingly. 7. It is seen that the Tribunal deducted 1/3[rd] toward the personal expenses. Since the dependents were 'three to five', the Tribunal could have deducted only 1/4[th] and remaining 3/4[th] ought to have been reckoned as contribution to the family. The age of the deceased with reference to the figures shown in the agreement produced before the Tribunal is reckoned as 42 years and as such, the proper multiplier would be '14'. On re-working the compensation, it comes to ₹3500 x 12 x ¾ x14 = ₹4,41,000/-. After deducting the sum of 3,13,500/- awarded by₹ the Tribunal, the balance payable comes to ₹ **1,27,500** /-. 8. The Tribunal has awarded a total sum of 15,000/-₹ towards loss of consortium to the widow and loss of love and affection to the other appellants/claimants. This is totally inadequate. By virtue of the law declared by the Supreme Court as per the decision reported in **Rajesh and Others v. Rajbir Singh and Others** 2013(3) KLT 89 (SC), a minimum of 1,00,000/- is₹ payable to the widow towards 'loss of consortium' and similar extent of 1,00,000/- to the others in respect of 'loss of love and₹ M.A.C.A. No.115 of 2007 -5- affection'. But accident in the said case was in the year 2007, whereas accident in the instant case, was in the year 1999. The said judgment was discussed by another Division Bench of this Court as per decision reported in **Valsamma v. Binu Jose** 2014 (1) KLT 10, whereby it has been held that, for awarding compensation under these heads, age of the deceased as well as that of the claimants had to be considered. Striking a balance, considering the fact that the accident was in the year 1999 and also considering the economic conditions prevailing at the date of accident, we find it appropriate to re-fix the same as 50,000/-₹ towards 'loss of consortium' to the widow and 50,000/- towards₹ loss of 'love and affection' to the other claimants. After deducting the total sum of 15,000/- awarded by the Tribunal₹ under the above heads, the balance payable under these two heads comes to ₹ **85,000** /-, which is awarded accordingly. 9. The Tribunal has awarded only a sum of 2,000/-₹ towards funeral expenses. Placing reliance on the very same decisions cited above, we find it appropriate to grant a further sum of ₹ **8,000** /- under this head. Similarly, we find it appropriate to award an additional compensation of ₹ **5,000** /- towards pain and suffering. Since no amount has been awarded M.A.C.A. No.115 of 2007 -6- towards loss of estate, we find it appropriate to award a sum of ₹ **5,000** /- under this head as well. Total balance compensation payable comes to ₹ **2,30,500** /- (Rupees two lakhs thirty thousand and five hundred) which requires to be satisfied with interest at the rate of 9% per annum from the date of petition, till satisfaction. The appeal was preferred with a petition to condone the delay of 862 days in filing the same. This was condoned subject to the rider that, if any enhancement is awarded, the appellants will not be entitled to get interest for the period of delay, as per the interim order dated 10.6.2008. The said interim order is made absolute. The liability of the insurer stands restricted to the said extent. Since the policy is admitted, we direct the Insurance Company to deposit the due amount within one months from the date of receipt of a copy of this judgment. Appeal stands allowed to the said extent. No costs. sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** sd/- ## **ANIL K. NARENDRAN, JUDGE** kp/-19.03.16 True Copy P.A. To Judge.