Ligi w/o Late Venugopal and Others v. United India Insurance Co. and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 MACA.No. 1254 of 2009() ----------------------OPMV.100/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): -------------- 1. LIGI. W/O. LATE VENUGOPAL, AGED 37 YEARS THENAMVELI, VAIKAPRAYAR, VADAKKEMURI VILLAGE, VAIKOM THALUK, KOTTAYAM DIST. 2. KUMARAN, S/O. KUNJAN, AGED 70YEARS, THENAMVELI, VADAKKEMURI VILLAGE, VAIKOM THALUK KOTTAYAM DIST. 3. PADMINI, W/O.KUIMARAN, AGED 60 YEARS, THENMVELI, VADAKKEMURI VILLAGE, VAIKOM THALUK, KOTTAYAM DIST. 4. ADARSH(MINOR) AGED 14 YEARS, THENAMVELI, VAIKAPRAYAR, VADAKKEMURI VILLAGE, VAIKOM THALUK, KOTTAYAM DIST. 5. AROMAL (MINOR) AGED 7 YEARS, THENMVELI, VAIKAPRAYAR, VADAKKEMURI VILLAGE, VAIKOM THALUK,KOTTAYAM DIST. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S): --------------- 1. P.V.BABU, MAGALATHVELI, KAIPURAM, MUHAMMA, ALAPPUZHA. 2. ANILKUMAR, S/O. CHIDAMBARAM, THOTTUMKAL VEEDU, MUHAMMA.P.O.,KAIPURAM, ALAPPUZHA. 3. M/S. THE UNITED INDIA INSURANCE CO.. REP. BY THE DIVISIONAL MANAGER, KOTTAYAM. BY ADV. SMT.S.JAYASREE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **M.A.C.A.No.1254 of 2009** ------------------------------- **Dated this the 10[th] day of November, 2011** ## **J U D G M E N T** Claimants are the appellants. They are the wife aged 35 years, two minor children and parents aged 68 years and358 years of deceased Venugopal who was aged 44 years at the time of the accident. He was working as LIC agent. His total income by way of commission was Rs.16,000/- per month, it was asserted. He suffered injuries in a road traffic accident on 28.10.2005. He succumbed to the injuries while he was being moved from one hospital to another on the same day. Against a total amount of Rs.22 lakhs claimed by the appellants, the Tribunal awarded a total amount of Rs.4,88,500/- as compensation as per the details given in paragraph 12 of the impugned award which we extract below:- |Sl.No.|Head of claim|Amount awarded| |---|---|---| |||(Rs.)| |-------------------------------------------------------------------------||| |1.|Transport to hospital|3,000.00| |2.|Funeral expenses|5,000.00| |3.|Damages to clothing|500.00| |4.|Loss of consortium|15,000.00| |5.|Loss of love and affection|15,000.00| |6.|Compensation for loss of|| ||dependency|4,40,000.00| M.A.C.A.No.1254 of 2009 2 7. Loss of estate 10,000.00 ------------------------------------------------------------------------ - ## **TOTAL Rs. 4,88,500.00** ======================================== = The insurance company is made entirely liable under the impugned award to satisfy the award. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded by the Tribunal. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all submits that the monthly income of the deceased reckoned by the Tribunal at Rs.5,000/is grossly inadequate. There are indications to suppose that the deceased was earning an income of about Rs.16,000/- every month by way of commissionfrom the LIC. The commission paid to him had steadily increased and about Rs.16,000/- per mensem was the commission he was drawing at the relevant M.A.C.A.No.1254 of 2009 3 time. The Tribunal accepted Rs.5000/- as the monthly income. The Tribunal did not make any provision for future improvement of prospects in employment. The appropriate multiplicand deserves to be taken, it is contended. We find force in that submission. Of course, we do note that the entire amount of commission received by a LIC agent from the LIC cannot be reckoned as his net monthly income. Expenses will necessarily have to be incurred. However, taking all the relevant inputs into account, we find it absolutely safe to assume that the deceased must have been earning an amount of Rs.7500/- per mensem. The available indications eminently support that contention. The fact that relevant documents have not been put to strict legal proof does not in these circumstances militate against the presumption of prudence drawn by us. We are further of the opinion that considering the age of the deceased (44 years), an increase of 30% in wages willhave to be provided while ascertaining the multiplicand as held by **Sarala Verma v. Delhi Transport Corporation** (2009 (6) SCC 121). M.A.C.A.No.1254 of 2009 4 4. Though bills were produced to show that medical expenses exceeding Rs.5,000/- was incurred, the Tribunal has not adverted to that aspect of the matter specifically. Even though claim on the ground of medical expenses has been rejected, we are satisfied that an amount of Rs.5000/- deserves to be awarded under that head. 5. For pain and sufferings, there has been an omission to award any amount of compensation. We are satisfied that an amount of Rs.10,000/- can safely be fixed as the quantum of compensation under the head pain and sufferings. 6. Under the head loss of consortium, the Tribunal has awarded only an amount of Rs.15,000/-. We note that the deceased was aged 44 years and the wife was aged 35 years. We ae satisfied that an amount of Rs.20,000/- deserves to be awarded under the head loss of consortium. 7. It was pointed out that one-third of the amount has been deducted towards personal expenses of the deceased. M.A.C.A.No.1254 of 2009 5 There are altogether 5 claimants in addition to the deceased who were dependent on his income. We are satisfied, in these circumstances, that one-fourth alone need be deducted towars personal expenses of the deceased. This is particularly so in view of our reckoning Rs.3,500/- as the monthly income though the total drawings by way of commission every month happens to be much higher. 8. The learned counsel for the appellant further points out that the Tribunal has accepted only 11 as the multiplier. Considering the age of the deceased (44 years) he who falls in the age group of persons aged 40-45 years, 14 must have been reckoned as the multiplier going by the dictum in **Sarala Verma v. Delhi Transport Corporation** (2009 (6) SCC 121). contends the counsel, we agree. 9. We are not persuaded to interfere with the quantum of compensation awarded under any other heads. 10. The above discussion leads us to the conclusion that the appellant is entitled to a further amount of M.A.C.A.No.1254 of 2009 6 ## Rs.8,13,500/- as compensation as shown below in addition to the amount amount awarded by the Tribunal. |1.|Medical expenses|| |---|---|---| ||(No amount has been awarded|| ||by the Tribunal)|Rs. 5,000.00| |2.|Pain and sufferings|| ||(No amount has been awarded|| ||by the Tribunal)|Rs.10,000.00| |3.|Loss of consortium|| ||(Rs.20,000 minus 15,000)|Rs. 5,000.00| |4.|Loss of love and affection|| ||(Rs.20,000 minus15,000)|Rs. 5,000.00| |5.|Compensation for loss of|| ||dependents|| ||(7500 x 130/100 x 12 x14 x ¾|| ||= 12,28,500 minus 4,40,000)|Rs.7,88,500.00| ||**TOTAL**<br>|**Rs.8,13,500.00**| - 11. In the result: a) This appeal is allowed in part; M.A.C.A.No.1254 of 2009 7 b) The appellant is found entitled to a further amount of Rs.8,13,500/- (Rupees Eight lakh thirteen thousand five hundred only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal. d) The proportionate cost for the proceedings before the Tribunal shall be awarded on the entire of amount of compensation calculated as per the dictum in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.** ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **C.M.Appln.No.1431 of 2009 in M.A.C.A.No.1254 of 2009** ------------------------------- **Dated this the 10[th] day of November, 2011** ## **O R D E R** This petition is filed to condone the delay of 20 days in filing the appeal. We have heard the learned counsel for the appellant and the learned counsel for the insurance company which has been made entirely liable under the impugned award to satisfy the award. We take a lenient view. Petition allowed. Delay condoned. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** ## **nj.**