MACA No. 1304 of 2011 (Appellants: Sheela and others) vs Respondents: S.A. Jebin; Robinson John; The National Insurance Co. Ltd; K.V. Johnson; Sasi; The National Insurance Company Ltd; original claim OPMV.2879/2004 of the Motor Accident Claims Tribunal, Thrissur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 MACA.No. 1304 of 2011() ----------------------OPMV.2879/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANTS : APPELLANT/PETITIONERS. ------------------------------------ 1. SHEELA,W/O.LATE LORENZ, KUNDUKULAM HOUSE PONGANAMKAD P.O.,THRISSUR. 2. ALOSIOUS (MINOR),S/O.LATE LORENZ, KUNDUKULAM HOUSE, PONGANAMKAD P.O.,THRISSUR, REP. BY GUARDIAN MOTHER SHEELA. 3. ALEESHA (MINOR), S/O.LATE LORENZ, KUNDUKULAM HOUSE, PONGANAMKAD P.O., THRISSUR, REPRESENTED BY GUARDIAN MOTHER SHEELA. 4. JOSEPH (MINOR), S/O.LATE LATE LORENZ, KUNDUKULAM HOUSE, PONGANAMKAD P.O., THRISSUR, REPRESENTED BY GUARDIAN MOTHER SHEELA. 5. VENONICA,W/O.LATE LONAPPAN, KUNDUKULAM HOUSE, PONGANAMKAD P.O., THRISSUR. BY ADV. SRI.V.BINOY RAM RESPONDENTS : RESPONDENTS - --------------- 1. S.A.JEBIN, SEVANKUZHI HOUSE, POTTUCHIRA P.O., KARUVANNUR,THRISSUR-680 711. 2. ROBINSON JOHN,S/O.JOHN VARGHESE, ARACKAL HOUE, CHUVANNAMANNU DESOM, PEECHI VILLAGE, THRISSUR DISTRICT, P.O.PECHI - 680 653. 3. THE NATIONAL INSURANCE CO. LTD, DIVISIONAL OFFICE, THRISUR – 680 001. 4. K.V.JOHNSON, KURUTHUKULANGARA HOUSE, - P.O.PARAPPUR, THRISSUR DISTRICT. MACA.No. 1304 of 2011 - 2 - 5. SASI, S/O.BALAN,THARAYIL HOUSE, KUTTANELLUR DESOM, MARATHAKKAR VILLAGE, THRISSUR-680 014. 6. THE NATIONAL INSURANCE COMPANY LTD, AMBIKA ARCADE, M.G.ROAD, THRISSUR-680 001. - ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 & 6 SRI.P.JACOB MATHEW FOR R3 & 6 SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & K.SURENDRA MOHAN, JJ. ************************* ## **M.A.C.A No.1304 of 2011** ## ********************************* Dated this the 6[th] day of September, 2011 ## **JUDGMENT** ## BASANT, J. The claimants are the appellants. They are the wife aged 30 years, three minor children, aged 6 years, 4 ½ years and 3 years and mother of the deceased person who suffered injuries in a motor accident, which took place on 7/4/2004. He succumbed to the injuries on his way to the hospital. He was allegedly running a workshop as an auto mechanic. He was aged between 30 and 35 years (34 to be exact). It was claimed that his monthly income was Rs.4,500/-. No better evidence was produced in support of that assertion except a rent deed to show that he had taken the premises for lease to run such business activity. Ext.A8 is the rent deed. 2. Exts.A1 to A10 were marked on the side of the claimants. No other evidence was adduced. 3. The Tribunal by the impugned award directed 2 **M.A.C.A No.1304 of 2011** payment of Rs.3,60,000/- as compensation. The said amount was directed to be paid along with interest at the rate of 8% per annum from the date of the claim to the date of payment/realisation. The insurance company was made entirely liable to satisfy the award. 4. We have heard the learned counsel for the appellants/claimants and the learned counsel for the 3[rd] respondent/insurance company. We repeat that the liability of the 3[rd] respondent to satisfy the award is not disputed. The challenge is raised only against the quantum of compensation. 5. Called upon to explain the challenge and be specific, the learned counsel for the appellants submits that the Tribunal had not applied its mind to the quantum of compensation payable. It is impossible to ascertain why the Tribunal has directed payment of an amount of Rs.3,60,000/-. The only basis/reason/rationale is available in para.11 of the impugned award which we extract below: “11. In the discussion held in the Tribunal, among the learned counsel for the petitioners and the 3[rd] respondent on the basis of the documentary evidence on record, Rs.3,60,000/- was arrived at as compensation 3 ## **M.A.C.A No.1304 of 2011** payable to the petitioners. Therefore, the petitioners are found entitled to get Rs.3,60,000/- as compensation from the respondents. Issue No.2 is answered accordingly.” 6. The learned counsel for the appellants submits that the appellants had not agreed to any amount of compensation. There was no agreement and no joint statement was filed by the parties. The Tribunal in para.11 only says that there were discussions on the quantum of compensation and an amount of Rs.3,60,000/- “was arrived at” as compensation payable. Who arrived at that figure? On what basis was the figure arrived at? We get no answers from the impugned award. The learned counsel for the appellants asserts that there was n agreement on the part of the claimants or their counsel and no joint statement was filed at all. No endorsement was made by their counsel also, submits counsel. 7. The responsibility of the Tribunal, in these circumstances, to pass a speaking award cannot be doubted or disputed. Under Section 168 of the Motor Vehicles Act, the law mandates that the Tribunal must award just compensation. Mind is to be applied to the facts to arrive at the just compensation. 4 **M.A.C.A No.1304 of 2011** The manner and process of reasoning - how mind happens to be applied to the facts, must be revealed in a reasoned judgment/award. The impugned award suffers precisely from that vice, namely, that the award does not speak. It is cryptic. If parties had agreed on the amount of compensation, the Tribunal should have insisted that the parties must file a joint statement. At least endorsements must have been insisted from counsel that there was an agreement on the quantum of compensation payable. The impugned award does not say so. The learned counsel for the appellants stoutly denies the suggestion that there was any such agreement on the quantum of compensation payable. 8. It is true that the Tribunals are hard pressed for time. There is a lot of pressure on them to turn out greater quantum of work. The long queue before the Tribunals acts as pressure on the conscientious presiding officer. But that pressure or demand cannot persuade the Tribunals to commit the indiscretion of passing awards like the instant one without proper application of mind. It is impossible for us sitting as an appellate court to ascertain the process of reasoning by which the Tribunal arrived at the figure of 3,60,000/-. The purpose of an appeal would be 5 **M.A.C.A No.1304 of 2011** defeated if there is no reasoned award passed by the Tribunal. We are, in these circumstances, satisfied that the challenge against the impugned award is justified. We do not expect the Tribunals to pass such awards. 9. Since there is no application of mind by the Tribunal, we thought that the matter may have to be sent back to the court below. The learned counsel for the appellants points out that the accident had taken place on 07.04.2004 and the appellants have been waiting in the queue for the past 7 years before the matter was ultimately disposed of. All the materials are available. Virtually there is no serious dispute on the relevant inputs. In these circumstances, this Court may not send the matter back to the Tribunal. The matter may be disposed of on merits on the available inputs, submits the learned counsel for the appellants. The learned counsel for the 3[rd] respondent/insurer also does not dispute the advantage of following such course. We are, in these circumstances, satisfied that this Court must try to put an end to the litigation by taking upon our shoulders the responsibility to ascertain the quantum of compensation payable. 10. There must certainly have been damage to clothing and personal property. We are satisfied, in the absence of any **M.A.C.A No.1304 of 2011** 6 better evidence, that an amount of Rs.1,000/- can be awarded under the head of damage to property. From the spot of the accident, the victim was taken to the hospital, where he was pronounced dead. The body necessarily had to be taken for funeral. We are satisfied that an amount of Rs.6,000/- can be fixed as the quantum of compensation payable under that head – of transportation and funeral expenses. 11. For pain and suffering endured by the deceased, the appellants are entitled to compensation and considering the nature of injuries and the short period of time between the accident and death, we are satisfied that an amount of Rs.10,000/- can be awarded under the head of pain and suffering. 12. The deceased was a person, aged 34 years – falling within the age group of 30-35 years. **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] prescribes 16 to be the multiplier applicable to such persons. About the quantum of monthly income, there is serious dispute. The claimants assert that the deceased was earning an amount of Rs.4,500/- per mensem. The insurance company asserts that the amount of Rs.2,500/- taken by the Tribunal is sufficient. We have **M.A.C.A No.1304 of 2011** 7 considered this question. We take note of the presumption available under clause 6 (b) of the Second Schedule to the M.V Act, which enables the Court to assume that even a non earning person as early as in 1994 must have been able to earn a monthly income of Rs.1,250/-. The learned counsel for the appellants also relies on the precedents in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] and **Laxmi Devi & Ors. V. Mohammad Tabbar & Anr.** [2008 ACJ 1488] under which the Supreme Court has opined that even for a non earning home maker or an unskilled manual worker, Rs.3,000/- can safely be assumed to be the monthly income. In the total absence of any better evidence other than Ext.A8, we are satisfied that the deceased in this case can also be assumed to earn a monthly income of Rs.3,000/-. We can certainly take note of the fact that the family consisting of 3 minors and the spouses were mainly and solely depending on such income in addition to the mother of the deceased (5[th] claimant). Out of the monthly income, ¼ is liable to be deducted towards the personal expenses of the deceased as the nuclear family consisted of 5 persons including the parents and minor children – not to speak of the 5[th] claimant, the mother. Following **Sarla Verma** (supra), it is evident that ¼ 8 **M.A.C.A No.1304 of 2011** of the total monthly earnings can be deducted towards the personal expenses of the deceased. 13. The deceased was aged about 34 years. The young wife aged 30 years is entitled to compensation for loss of consortium. We are satisfied, in any view of the matter, that Rs.20,000/- can be awarded under the head of loss of consortium. 14. All the claimants had been deprived of the love, affection, company, patronage and guidance of the deceased. We are satisfied that an amount of Rs.15,000/- can be awarded under the head of loss of love and affection. Under the conventional head of loss of estate, we are satisfied that an amount of Rs.5,000/- can be awarded as compensation taking into account the accretion to the estate which would have enured to the benefit of legal heirs if the deceased had continued to live and earn. 15. We are satisfied, in these circumstances, that the appellants are entitled for a total amount of Rs.4,89,000/- as per the details given below: i) Damage to property : Rs. 1,000.00 ii) Funeral and transportation expenses : Rs. 6,000.00 9 **M.A.C.A No.1304 of 2011** iii) Pain and suffering : Rs. 10,000.00 iv) Loss of dependency : Rs.4,32,000.00 [3000 X 12 X ¾ X 16] v) Loss of consortium : Rs. 20,000.00 vi) Loss of love and affection : Rs. 15,000.00 vii) Loss of estate : Rs. 5,000.00 ---------------------Total : Rs.4,89,000.00 ========= We are satisfied that amounts are not liable to be awarded under any other head. ## 16. In the result: i) This appeal is allowed in part; ii) In supersession of the directions in the impugned award, the appellants are found entitled to a total amount of Rs.4,89,000/- (Rupees Four lakhs eighty nine thousand only) as compensation; iii) We direct that the entire amount of compensation shall carry interest @ 7.5% per annum from the date of the claim to the date of realisation along with proportionate cost as indicated in the unreported judgment in **Jeena v. Satheesh Babu.K** in M.A.C.A No.946 of 2011 dated 12.08.2011 (certified for reporting; 10 ## **M.A.C.A No.1304 of 2011** iv) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(K.SURENDRA MOHAN, JUDGE)** rtr/