MACA No. 1307 of 2010 (High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935** **MACA.No. 1307 of 2010 ( )** **-------------------------AGAINST THE AWARD IN OPMV 418/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA,DATED 15-07-2008 APPELLANTS/PETITIONERS 1-4 :** - **--------------------------** **1. SARALA, W/O.LATE RADHAKRISHNAN, VARAMPANANICKAL HOUSE, VANNAPURAM KARA VANNAPURAM P.O., THODUPUZHA.** **2. SOUMYA.V.R, D/O.LATE RADHAKRISHNAN, VARAMPANANICKAL HOUSE, VANNAPURAM KARA VANNAPURAM P.O., THODUPUZHA.** **3. SANOSH.V.R, (MENTALLY RETARDED),** - **S/O.LATE RADHAKRISHNAN, VARAMPANANICKAL HOUSE VANNAPURAM KARA, VANNAPURAM P.O., THODUPUZHA.** **4. JANAKIAMMA, M/O.LATE RADHAKRISHNAN, VARAMPANANICKAL HOUSE, VANNAPURAM KARA VANNAPURAM P.O., THODUPUZHA.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW** **SRI.SUNIL KUMAR A.G** **RESPONDENTS/RESPONDENTS 1-3:** - **---------------------------** **1. RAJEEV, S/O.RAJAPPAN PILLAI, MULACKAL HOUSE, ARAKULAM P.O., ARAKULAM KARA 12TH MILE BHAGOM, ARAKULAM VILLAGE.** **2. JOY SEBASTIAN, S/O.DEVASIA, KAVALAKKATTU HOUSE, EZHACHERRY P.O., RAMAPURAM.** **3. THE NATIONAL INSURANCE CO.LTD., PALA.** **R3 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A.No.1307 of 2010 -----------------------------------------------------------------Dated this the 29[th] day of November, 2013 J U D G M E N T ## K. Ramakrishnan, J Claimants in O.P.(M.V.)No.418/2006 on the file of the Motor Accidents Claims Tribunal, Pala, are the appellants herein. The appellants are the wife, children and aged mother of the deceased Radhakrishnan, who died in a motor vehicle accident and they filed the application for compensation for the death of their breadwinner in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the first respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total M.A.C.A.No.1307 of 2010 2 ## compensation of 4,05,000/- on various heads as follows:₹ |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Transport to hospital|2, 000| |2|Funeral expenses|3, 000| |3|Pain and suffering|10, 000| |4|Loss of love and affection|15, 000| |5|Loss of consortium|15, 000| |6|Loss of dependency|3, 60, 000| ||Total|4, 05, 000| The tribunal found that, the first respondent had no valid driving licence and the licence produced was a fake licence and found that the 3[rd] respondent insurance company is not liable to pay the amount, but directed the insurance company to pay the amount and recover the same from the respondents 1 and 2, the driver and owner of the vehicle. Though, notice was served on respondents 1 and 2, they remained absent. 2. Heard the counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that, the deceased was aged 43 years and engaged in the contract work of taking slaughter-tapping and getting ₹ 6,000/- per month. But the tribunal has arbitrarily fixed 3 ## M.A.C.A.No.1307 of 2010 his monthly income as 3,000/-, which is very low.₹ Further, there are four dependants, including a mentally retarded son, but the tribunal has deducted 1/3[rd] , which is not correct in view of the decision reported in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , as the proper reduction is 1/4[th] , if the dependants are between 4 and 6. The amount awarded under the head loss of consortium, loss of love and affection are also on the lower side. No amount was awarded under the head loss of estate. So, according to the counsel for the appellant, the appellants are entitled to get enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that, the proper multiplier applicable is 14 and not 15 as per Sarla Verma’s case (supra), as the deceased was 43 years at the time of accident and the total compensation awarded is just and proper. The counsel for the appellant also submitted 4 M.A.C.A.No.1307 of 2010 that, if this court find that appellants are entitled enhancement of compensation, then the right to recover the amount from the insurer as done by the tribunal has to be retained. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellants was that, the deceased was a contractor engaged in slaughter tapping and getting 6,000/- per month. But no evidence was₹ adduced on the side of the appellants to prove this fact. The accident occurred on 29.01.2006, considering the living conditions during that period and cost of living, we feel that an amount of 3,000/- fixed by the tribunal, as₹ the monthly income is on the lower side and we re-fix the amount as 3,500/- per month. It is seen from the₹ records that, the 2[nd] appellant is only 20 years and unmarried daughter and the 3[rd] appellant is a mentally retarded minor son and the 4[th] appellant is an old woman M.A.C.A.No.1307 of 2010 5 and including the first appellant, all the appellants were depending on the income of the deceased at the time of the death of the deceased. So, in view of the decision reported in Sarla Verma(supra), the proper deduction for personal expenses of the deceased is 1/4[th] and not 1/3[rd] as done by the tribunal. Further, there is some force in the submission made by the counsel for the insurance company regarding the multiplier, as the proper multiplier is 14 and not 15, in view of the decision cited (supra). If a re-calculation is made on these basis, the appellants would be entitled to get an amount of ₹ 4,41,000/-(3,500x12x14x3/4) instead of 3,60,000/-₹ awarded by the tribunal. The appellants are entitled to get an additional compensation of 81,000/- under that₹ head. 7. The first appellant is aged only 40 years at the time of death of her husband. She had to live with two children one of whom is mentally retarded. She had M.A.C.A.No.1307 of 2010 6 lost the support and companionship of her husband at the young age and there is no possibility of a re-marriage as well. Such loss, as a woman of the first appellant, is not possible to compensate the loss in terms of money. But some guess work will have to done on that aspect to provide a reasonable compensation under the head to recoup the loss. So, we feel that the amount of 15,000/-₹ awarded by the tribunal is on the lower side and we enhance the same to 50,000/-. Similarly, the unmarried₹ daughter and mentally retarded minor son have lost the love and affection and guidance of their father at their young age and the old mother also lost the support of her son at her old age. So, considering these aspects, the amount of 15,000/- awarded by the tribunal, under the₹ head loss of love and affection is also on the lower side and we enhance the same to 40,000/-. No amount was₹ awarded under the head loss of estate. So we award a conventional amount of ₹ 10,000/- under that head. M.A.C.A.No.1307 of 2010 7 Though, persuasive arguments were made by the counsel for the appellants to get enhancement under other heads, we feel that they are not entitled to get any enhancement under other heads, as the amounts awarded under the head appear to be just and proper. In all, the appellants will be entitled to get an additional compensation of ₹ 1,51,000/-, over and above what has been awarded by the tribunal, together with 9% interest per annum from the date of the claim petition, till date of payment. 8. Since the tribunal has found that the first respondent had no valid driving licence and he had produced a fake driving licence and thereby willfully violated the conditions of policy by 2[nd] respondent, the insurance company was directed to pay the amount and recover the amount from respondents 1 and 2. We do not find any reason to interfere with the finding of the tribunal, in view of the reasons elaborately stated in the judgment of the tribunal. So the 3[rd] respondent insurance M.A.C.A.No.1307 of 2010 8 company is directed to pay the additional compensation also to the appellants and they are at liberty to get it recover from respondents 1 and 2. Since the 4[th] appellant is the aged mother, we feel that this additional compensation can be awarded to the appellants 1 to 3 alone in equal share. The amount due to the 3[rd] appellant shall be deposited in a nationalised bank, in a long term deposit with liberty for the first appellant to withdraw the interest accrued for the benefit of the 3[rd] respondent. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss