Loyidas and others v. S. Lucas and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937 MACA.No. 809 of 2012 () -----------------------AGAINST THE AWARD IN O.P(M.V)NO.1385/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATTINKARA DATED 28-08-2010 APPELLANTS/APPLICANTS: ----------------------------- 1. LOYIDAS, AGED 45 YEARS, S/O.YOHANAN, PREETHI BHAVAN, VALIYAVILA MUTTAKKADU PERUMPAZHUTHOOR VILLAGE, PERUMPAZHUTHOOR P.O., NEYYATTINKARA TALUK THIRUVANANTHAPURAM DISTRICT. 2. VALSALA, AGED 38 YEARS, D/O.CICILY, PREETHI BHAVAN, VALIYAVILA, MUTTAKKADU PERUMPAZHUTHOOR VILLAGE, PERUMPAZHUTHOOR P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 3. DILEEP, AGED 19 YEARS, D/O.CICILY, PREETHI BHAVAN, VALIYAVILA, MUTTAKKADU PERUMPAZHUTHOOR VILLAGE PERUMPAZHUTHOOR P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.R.NIKHIL SRI.P.ABDUL RAZAK ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. S. LUCAS, S/O.SABARINATHAN, 38-19, MANIKKANVILAI PACODE, THICKURICHY P.O., KANYAKUMARI DISTRICT 629702. 2. S.JUSTIN JOSE, S/O.SUDHAKARAN, 7-5A, KOLKKUDIVILAKOM VEEDU, BACK OF ABRAHAM MEMORIAL SCHOOL, MARUTHAMCODE, PACODE VILLAGE, VILAVANCODE TALUK, KANYAKUMARI DISTRICT - 629 702. 3. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., GOVT.PRESS ROAD, THIRUVANANTHAPURAM - 695001. MACA.No. 809 of 2012 2 4. R.SREEKANTH, S/O.REGHU, CHEMMANUVILA VEEDU, VADACODU, PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA - 695121 5. THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO.LTD., KOTTARATHIL BUILDING, PALAYAM, THIRUVANANTHAPURAM - 695 001. R5 BY ADV. SRI.LAL GEORGE BY SRI.M.A.GEORGE BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2016, ALONG WITH MACA. 1069/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ. == == == == == == == == == == M.A.C.A.Nos. 809 & 1069 of 2012 == == == == == == == == == == == Dated this the 23r[d] day of February, 2016** ## **J U D G M E N T** ## C.T.RAVIKUMAR, J. These appeals arise from the common award passed by the Motor Accident Claims Tribunal , Neyyattinkara. The former appeal is preferred against the award in O.P.(MV).No 1385/04 and the latter has been preferred against the award in O.P.(MV).No 1554/04. 2. Appellants in the former appeal are the legal heirs of one Mr.Pradeep and the appellants in the latter appeal are the legal heirs of one Thulaseedharan, who sustained injuries in a motor vehicle accident occurred on 25.6.2004 while travelling as passengers in an autorickshaw bearing Reg.No.KL-01-AC-4178. Both of them succumbed to the injuries. The offending vehicle is a lorry bearing Reg.No.TN-576954. On sustaining injuries in the collision between the said vehicles they were taken to Medical College Hospital, Thiruvananthapuram. Pradeep died from the hospital on 26.06.2004 at 1.30 a.m. In the case of Thulaseedharan, he sustained very serious injuries and while undergoing prolonged treatment he died on 23.04.2007. It is in such circumstances that their respective legal heirs filed O.P.(MV).Nos. 2 M.A.C.A.Nos.809 & 1069 of 2012 1385 & 1554, of 2004 claiming compensation for death. As per the impugned common award 3,02,500/- with interest @ 7.5% per₹ annum from 13.08.2004 till realisation was granted in OP(MV) No.1385/2004. In O.P.(M.V)No.1554/2004 filed for compensation in respect of the death of Thulaseedharan, the Tribunal passed an award for a total compensation of 4,20,707/- with interest @ 7.5% per₹ annum from 18.09.2004 till realisation. Since both these appeals seeking enhancement of compensation arise from the common award they were jointly heard and are being disposed of by this common judgment. 3. We have heard learned counsel on both sides. The accident, the cause of the accident as the negligence on the part of the 2[nd] respondent who was driving the lorry involved in the accident and also the insurance coverage of the offending vehicle are not in dispute and none of the respondents before the Tribunal filed appeal against award in any of the aforesaid claim petitions. Therefore, in both the appeals, the only question calls for consideration is whether or not the appellants are entitled to get enhancement of compensation. Certainly, the quantum of additional compensation has to be assessed if the answer is in the affirmative. 3 M.A.C.A.Nos.809 & 1069 of 2012 ## M.A.C.A.Nos.809 of 2012 4. The claimants/appellants are the parents and brothers of deceased Pradeep. At the time of the accident, the deceased was aged 21 years. The appellants are aged respectively 45 years, 38 years and 19 years. In the claim petition, it is stated that Pradeep was a Maison by profession and he was earing 4,500/- per month. The death of₹ Pradeep occurred at 1.30 a.m., on 26.06.2004. The main grievance of the appellants is that though they claimed that Pradeep was a Mason by profession and earing 4,500/- the Tribunal took the monthly income₹ at 2,500/- notionally. The further contention is that the Tribunal did₹ not grant any amount towards `funeral expenses' and under the head `pain and sufferings'. It is contended that since the accident occurred at about 11.30 p.m., and his death occurred after about 2 hours there was no justification in declining compensation under the head `pain and sufferings'. It is the further contention that though an amount of ₹ 25,000/- was claimed under the head `loss of love and affection', the Tribunal granted only a meagre amount of 15,000/-. It is also the₹ contention that the erroneous fixation of monthly income resulted in inadequate fixation of compensation under the head `loss of dependency'. In the said circumstances, it is contended by the learned counsel for the appellants that appropriate enhancement of compensation under the aforesaid heads is required. The learned 4 M.A.C.A.Nos.809 & 1069 of 2012 counsel for the 5[th] respondent insurance company resisted the contentions and submitted that no appellate interference is called for in this case as just compensation was granted as per the impugned award. 5. As noticed hereinbefore, the main grievance of appellants is regarding the fixation of the monthly income. Evidently, the appellants claimed that the deceased Pradeep was a Mason by profession and he was earning 4,500/- per month. Though such₹ contentions were taken up no evidence, either oral or documentary, was adduced by the appellants in support of the contention regarding occupation and income. In the said circumstances, we do not find any illegality in the action on the part of the Tribunal in fixing the monthly income of the deceased notionally for the purpose of computing the compensation under the head `loss of dependency'. However, the question is whether the fixation of 2,500/- as monthly income invites₹ interference. The accident took place in the year 2004. Though the claimants/appellants failed to produce any documents in support of the averments regarding occupation as also the monthly income of deceased Pradeep, we are of the considered view that for fixing the monthly income, the decision of Honourable Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd. [2011(2) SCC 236]** could be referred for 5 M.A.C.A.Nos.809 & 1069 of 2012 guidance. The accident involved in **Ramachandrappa's** case occurred in the year 2004. The Hon'ble Apex Court fixed the monthly income in the case of a coolie notionally at 4,500/- for calculation purpose, in₹ that case. As noticed hereinbefore, the accident involved in this case also occurred in the same year. In the said circumstances, we are of the view that the monthly income of the deceased Pradeep ought to have been fixed notionally at 4,500/-for calculation purpose. It is₹ accordingly fixed. At the time of his death, Pradeep was aged 21 years. Going by the decision of the Honourable Apex Court in **Sarla Varma** v. **Delhi Transport Corporation [2010(2) KLT 802 SC]** , the multiplier to be adopted in the case of persons belonging to the age group 21 to 25 is `18'. Thus it is evident that the multiplier has been correctly identified by the Tribunal. In the decision in **Sarla Varma's** case the Honourable Apex Court held that while considering compensation for `loss of dependency' in a case where deceased was a salaried person and where the claim is one under Section 166 of the Motor Vehicles Act, an addition has to be made to his income reckoning the future prospects. Later, in the decision in **Rajesh** v. **Rajbir Singh and other [2013(3) KHC 212 SC]** the Apex Court held that in the case of self employed persons or persons with fixed income also such addition has to be made to the actual income for the purpose of computing compensation under the head `loss of dependency'. But at the same 6 M.A.C.A.Nos.809 & 1069 of 2012 time, it is to be noted that the deceased Pradeep was neither a salaried person nor a person with fixed wages. He was also not a self employed person. If it is treated that he was a manual worker his work availability would depend upon the requirement of some other person. In other words, he would get work only as and when his services are required by some others. But, we are of the considered view that even in the case of such persons, their wages could not be static and such persons would also seek increase in wages to cope up the requirements taking into account the price index as also the cost of living. It is also to be noted that in the case of such persons there would be no age of retirement on superannuation and such persons could work as long as he remains hale and hearty. Taking into account all such relevant factors, we are of the view that an addition of 30% can be made to his monthly income fixed reckoning the future prospects which the deceased would have had but for his untimely death. Since he was a bachelor, in the light of the decision in **Sarla Verma's** case (supra) 50% of the income has to be deducted. Taking into account such aspects, the compensation payable under `loss of dependency' is to be re-assessed. On such reassessment the appellants would be entitled to get an amount of ₹ 6,31,800/- (2925 x 12 x 18). After deducting the amount which was already granted by the Tribunal under the said head the appellants are entitled to get an amount of 3,61,800/- additionally under the said₹ 7 M.A.C.A.Nos.809 & 1069 of 2012 head. Towards damage to clothing, the appellants claimed an amount of 1,000/-. However, the Tribunal granted only 500/-. There₹ ₹ cannot be any doubt with respect to the fact that the apparels worn by the deceased at the time of the accident, must have been damaged in the accident. In the said circumstances, we award 500/- more under₹ the said head. For `pain and suffering' the appellants claimed an amount of 15,000/-. But, the Tribunal did not grant any amount under₹ the said head. Presumably, it was declined for the reason that the death of Pradeep took place on the same date itself. However, it is evident that the accident occurred on 25.06.2004 at about 11.30 p.m. The evidence on record would reveal that he breathed his last after about 2 hours since the accident. A perusal of Ext.A11 Postmortem certificate would reveal the antemortem injuries found on the body of deceased Pradeep. It would reveal that he sustained lacerated wounds and fractures, which were specifically noted thereunder. They would go to show that he must have endured excruciating pain owing to such injuries to which he succumbed later. Therefore, we are of the view that the Tribunal was not justified in declining to grant any amount under the said head. In the circumstances, we are inclined to grant ₹ 10,000/- under the said head. Towards `loss of love and affection', the appellants claimed an amount of 25,000/- and the Tribunal₹ granted only an amount of 15,000/-. The claimants/appellants are₹ 8 M.A.C.A.Nos.809 & 1069 of 2012 the parents and brother of deceased Pradeep. Taking into account the said aspect an amount of 10,000/- is granted additionally under the₹ said head. The appellants were not paid any amount towards `funeral expenses'. In **Rajesh's** case (supra) it was held that in the absence of evidence to the contrary for higher expenses at least an amount of ₹ 25,000/- has to be granted towards `funeral expenses'. Accordingly, the said amount is granted. 6. In the light of the assessment made as above, the appellants would be entitled to get a total additional amount of ₹ 4,07,300/-. The said additional compensation will carry interest @ 8% per annum from the date of petition till realisation. The 3[rd] respondent, the insurer of the offending vehicle is directed to deposit the additional compensation payable under this judgment within three months from the date of receipt of copy of this judgment. In case of failure to deposit the said amount within the above stipulated time the amount remaining to be paid will carry interest @ 9% per annum. There will be no order as to costs. ## M.A.C.A.No.1069 of 2004 7. As noticed hereinbefore, this appeal also arises from the same common award dated 28.08.2010. The claim petition viz., O.P. 9 M.A.C.A.Nos.809 & 1069 of 2012 (M.V)No.1554 of 2004, was filed seeking compensation for the death of one Thulaseedharan, who was also travelling along with Pradeep on whose death claim petition was filed as O.P.(MV).No.1385 of 2004, at the time of the above mentioned accident. The appellants are the widow, two minor children and the mother of deceased Thulaseedharan. In fact, the claim petition was originally filed by Thulaseedharan himself seeking compensation for the injuries sustained by him in the accident. During the pendency of the claim petition he died on 23.04.2007 and thereafter his legal heirs got themselves impleaded in the claim petition and then, got amended the claim as one for the death of Thulaseedharan. Obviously, the fact that the injuries sustained in the accident was the proximate cause of death is not in dispute as none of the respondents before the Tribunal filed appeal or cross objection in this appeal challenging the grant of compensation treating the claim as one for the death of the aforesaid Thulaseedharan. Evidently, it is contended in the claim petition that he was a Mason by profession and was earning 4,500/- per month. The main grievance of the appellants₹ is that the Tribunal when wrong in fixing the monthly income only at ₹ 2,500/- for the purpose of computing the compensation for `loss of dependency' disregarding the aforesaid specific averments in the claim petition that he was a Mason by profession and was earing 4,500/-₹ per month. At the same time, it is a fact that the appellants have 10 M.A.C.A.Nos.809 & 1069 of 2012 failed to adduce evidence in support of the claim regarding the occupation and monthly income of deceased Thulaseedharan. In such circumstances, the Tribunal cannot be found fault with in fixing the monthly income notionally for the purpose of computing compensation under the head `loss of dependency'. Still, the question is whether the fixation of monthly income as 2,500/- invites any interference.₹ Taking into account the decision of the Hon'ble Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 2 SCC 236]** and following the same reasoning assigned by us for fixing monthly income in M.A.C.A.No.809 of 2012 we are inclined to fix his monthly income as ₹ 4,500/-. It is fixed accordingly. At the time of death, he was aged 30 years. Obviously, he was survived by four dependents. In the light of decision of Honourable Apex Court in **Sarla Varma's** case (supra) in a case where there are four surviving dependents 1/4[th] of the actual income has to be deducted towards personal expenses of the deceased. But, before effecting such deduction, taking into account the future prospects which the deceased would have had but for his untimely death an addition of 30% has to be made following the same reasonings which have assigned for making such addition in the case of Pradeep, the deceased for whose death OP(MV) No.1385 of 2004 was filed and from which the former appeal arose. Taking into account such 11 M.A.C.A.Nos.809 & 1069 of 2012 aspects compensation payable under `loss of dependency' is to be reassessed. On such assessment the appellants would be entitled to get an amount of Rs.9,47,700/- (5850x12x18x3/4) as compensation under the head `loss of dependency'. After deducting the amount of ₹ 3,40,000/- which was granted by the Tribunal under the said head the appellants would be entitled to get an amount of ₹ 6,07,700/additionally under the said head. Towards `damage to clothing', the appellants claimed an amount of 1,000/-. However, the Tribunal₹ granted only 500/-. There cannot be any doubt with respect to the₹ fact that the apparels worn by the deceased at the time of the accident, must have been damaged in the accident. In the said circumstances, we award 500/- more under the said head. Towards `funeral₹ expenses' no amount was claimed by the appellants. But, the Tribunal granted an amount of 5,000/- under that head. However, in the light₹ of the decision of the Hon'ble Apex Court in **Rajesh's** case (supra), the appellants are entitled to get an amount of 25,000/- under that head₹ in the absence of evidence for higher expenses. After deducting the amount of 5,000/- granted by the Tribunal the appellants would be₹ entitled to get an additional amount of 20,000/- under that head. For₹ `loss of consortium', `loss of love and affection' and for `loss of estate' the appellants claimed altogether an amount of 1,00,000/-. The₹ Tribunal granted an amount of 35,000/- under the aforesaid heads.₹ 12 M.A.C.A.Nos.809 & 1069 of 2012 But, at the same time, in the light of the decision of the Hon'ble Apex Court in **Rajesh's** case (supra), the wife, who is the 2[nd] appellant alone would be entitled to claim compensation under the head `loss of consortium'. Going by the said decision, an amount of 1,00,000/-₹ shall be the minimum under the said head in the absence of evidence for higher expenses. In the absence of any special reason to grant any higher amount we are inclined to grant an amount of 1,00,000/- to₹ the first appellant under the said head. At the same time, it is to be noted that the Tribunal has already granted an amount of 10,000/-₹ under the said head. In such circumstances, the first appellant would be entitled to get an additional amount of 90,000/- under the said₹ head. For `loss of love and affection' the Tribunal granted altogether an amount of 15,000/-. Appellants 3 to 5 are respectively the₹ children and the mother of deceased Thulaseedharan. We are inclined to grant an amount of 1,00,000/- to them. In the said circumstances,₹ after deducting the amount of 15,000/-, which was granted by the₹ Tribunal under the said head, they are entitled to get an amount of ₹ 85,000/- additionally. Towards `loss of estate', the Tribunal granted only an amount of 10,000/-. We are of the view that under the said₹ head the appellants are entitled to get an amount of 10,000/-₹ additionally. It is granted. In view of the said re-assessment of compensation made by us the appellants would be entitled to get a total 13 M.A.C.A.Nos.809 & 1069 of 2012 enhanced compensation of ₹ 8,13,200/-. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent, the insurer of the offending vehicle is directed to deposit the said amount within a period of three months from the date of receipt of copy of this judgment. In case of failure to deposit the said amount within the said stipulated period, the amount remaining to be paid will carry interest @ 9% per annum. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR** **JUDGE** Sd/- **MARY JOSEPH JUDGE** skr