High Court of KeralaDivision Bench2011-11-04This appeal is allowed in part.

MACA No. 1756 of 2011

Case / Petition Number:MACA.No.1756/2011

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
K. Surendra Mohan
Judgment Date: 2011-11-04
Court Decision / Holding: This appeal is allowed in part. The appellants are entitled to an additional Rs. 2,58,700 over and above the Tribunal’s award. The final amount will carry interest at the tribunal’s rate from the date of claim to payment. Proportionate costs of the proceedings before the Tribunal on the entire amount of compensation shall be calculated as directed in Jeena v Satheesh Babu. All other directions of the Tribunal are upheld.
Final Disposition: This appeal is allowed in part.

Parties to the Case

Appellants / Petitioners

Mrs Asma Beevi K.M.
Ashur Saifudeedn
Afnas Saifudeen
Mr. M.K. Hydrose
Mrs. Beevi Fathima Hydrose

Respondents

Abdul Nazeer, S/o. Abdullla (Owner of the bus KL-7-AY-4229)
Sudarshanan, S/o. Thankappan
The Oriental Insurance Co. Ltd., Thodupuzha
Shaji, S/o. K.B. Muhammed
Pryian, S/o. Padmnabhan
National Insurance Co. Ltd., Kochi

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri K.R. Mohanan
• Sri K. Sivara j (K Sivaraj)

Counsels for Respondents

• Adv. SMT. Raji T. Bhaskar
• Adv. (R6)

Case Synopsis & Summary

This motor-accident claim appeal arises from a Tribunal award in a motor-accidents case where the appellants (the wife, children and parents of the deceased) challenge the quantum of compensation. The Tribunal had awarded Rs. 4,89,738 against a claim of Rs. 20 lakhs, with heads including loss of dependency, transport, funeral, medical expenses, loss of estate, love and affection, and consortium but nothing under bystander expenses or nourishment. The High Court (Division Bench of Justice R. Basant and Justice K. Surendara Mohan) reexamines the evidence and the quantum, noting the deceased was around 49, later clarified as 45-50, and applying the multiplier principle from Sarla Verma to fix a multiplier of 13. It finds the deceased’s monthly income should be Rs. 4,500 (instead of the unproved higher figure), and after applying a 1/3 deduction for personal expenses from the nuclear family, recalculates the loss of dependency at Rs. 2,37,600. The court also awards additional amounts: Rs. 10,000 for loss of conjugal society (increased from Rs. 10,000 to Rs. 20,000 but net increase adjusted), Rs. 7,500 for loss of estate, and Rs. 3,600 for bystander’s expenses/nourishment (18 days hospitalisation at Rs. 200 per day). The cumulative effect yields an added Rs. 2,58,700 beyond the Tribunal’s award, while upholding other heads. The appeal is allowed in part, with interest and costs to be handled per the Tribunal’s order and the Jeena v Satheesh Babu precedent for costs.

Provisions of Law Cited

Clause-6 of the Second Schedule

Legal Doctrines & Maxims

Multiplier principle as laid down in Sarla Verma v Delhi Transport Corporation (2009) (6) SCC 121
Presumption of prudence under clause-6 of the Second Schedule

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the Tribunal’s quantum was inadequate and sought enhancement in several heads. They pressed for a higher loss of consortium (claimed Rs 10,000; contended Rs 20,000 is warranted given the deceased’s age and the family’s status), inclusion of bystander’s expenses and nourishing expenditures during hospitalisation, and a more realistic assessment of income and dependency. Citing Sarla Verma for multiplier, they urged that the court should adopt a credible income figure for the deceased and apply appropriate deductions to reflect the nuclear family’s dependency, asserting the family’s financial needs and the deceased’s business income supported the claim for higher compensation.

Contentions of Respondents

Respondents contended that the Tribunal’s compensation award was adequate and that the evidence did not justify drastic enhancement. They relied on the Tribunal’s findings on the decedent’s age and earnings and argued that the loss of dependency had to be calculated conservatively, while opposing inflated figures for other heads. They emphasised that the award should reflect credible proof of income and the Tribunal’s discretion within the statutory framework. They also defended the insurer’s liability split under the award and the proportional costs.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Sarla Verma v Delhi Transport Corporation	2009 (6) SCC 121	Positive	Used to justify the multiplier of 13 for dependency calculations.
Lakshmi Devi v Mohammed Tabbar	2008 ACJ 1488	Mentioned Only	Cited by appellants but not relied upon by the court for the decision.
Latha Wadhwa v State of Bihar	AIR 2001 SC 3218	Mentioned Only	Cited by appellants but not pressed as binding on the case.
Jeena v Satheesh Babu	2011 (3) KLT 943	Positive	Cited to justify the direction for costs of proceedings.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE R.BASANT** **& THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933** **MACA.No. 1756 of 2011()** **------------------------------** **OPMV.2664/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** **....................** ## **APPELLANT(S):PETITIONERS** ## **-----------------------------------** **1. MRS. ASMA BEEVI K.M., W/O. LATE M.H.SAIFUDEEN, AGED 47, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028.** **2. ASHUR SAIFUDEEDN, S/O. LATE M.H.SAIFUDEEN, AGED 25 YEARS, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028.** **3. AFNAS SAIFUDEEN,S/O. LATE M.H.SAIFUDEEN, AGED 22 YEARS, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028.** **4. MR. M.K.HYDROSE, AGED 84,MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028.** **5. MRS.BEEVI FATHIMA HYDROSE, W/O. HYDROSE, AGED 74 YEARS, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028.** - **BY ADV. SRI.K.R.MOHANAN SRI.K.SIVARAJ** ## **RESPONDENTS/RESPONDENTS** ## **------------------------------------** **1. MR.ABDUL NAZEER, S/O. ABDULLA, AGED 34, BAKKAT HOUSE, VENNALA P.O., COCHIN - 682028 (OWNER OF THE BUS KL-7-AY-4229)** **svs** **..............2/-....** **...2...** ## **MACA. NO.1756/2011** **2. MR.SUDARSHANAN, S/O. THANKAPPAN, AGED 40, THOPPIL HOUSE, NEAR KAPPATTY KAVU TEMPLE, EROOR P.O., COCHIN - 682 306, NADAMA VILLAGE, KANAYANOOR TALUK (D/L.NO.E1173/93 & BADGE NO.E.629/94).** **3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, P.B. NO.8, JYOTI SUPER BAZAAR, THODUPUZHA-685 584.** **4. MR.SHAJI, S/O. K.B.MUHAMMED, AGED 37, KIZHAKKEVEEDU, HOUSE NO.14/1807, KARUVELLYPADDY, COCHIN - 5 (OWNER OF THE CONTAINER LORRY NO.KL-7 A 9088)** **5. MR.PRYIAN, S/O. PADMNABHAN, AGED 29,VELIYATHU HOUSE, EAST OF PANCHAYATHOFFICE, KANDAKADAVU, KUMBALANGI VILLAGE (L.NO.EMT/3636/01 & BADGE NO.626/04EMT)682007** **6. NATIONAL INSURANCE CO. LTD., CHITOOR ROAD, SOUTH JUNCTION, ERNAKULAM, BRANCH NO.1, COCHIN - 682 016.** **R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE ADV.SRI.P.JACOB MATHEW R6 BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **svs** ## **R.BASANT & K.SURENDRA MOHAN, JJ** --------------------------------------------MACA No.1756 of 2011 --------------------------------------------Dated this the 4[th] day of November 2011 ## **JUDGMENT** ## Basant, J Claimants are the appellants. They are the wife aged 42 years, children aged 20 years and 17 years and parents aged 79 years and 69 years. The deceased was a person aged 49 years. He suffered injuries in a motor accident which took place on 5.7.2006. He succumbed to the injuries suffered while he was undergoing treatment as an inpatient on 22.7.2006. It was claimed that he was running a bakery business and earning an income of Rs.7,000/- per mensum. The Tribunal, by the impugned award, against a total claim of Rs.20 lakhs, awarded only an amount of Rs.4,89,738/- as compensation as per the details given in paragraph-17 of the award which we extract below: ## MACA No.1756 of 2011 2 |**_Heads_**|**_Amount_** **_claimed_**|**_Amount_** **_awarded_**|| |---|---|---|---| |Loss of dependency|12 lakh|230400|(3000x12-1/5thx8)| |Transport expenses|25000|2000|| |Funeral expenses|15000|5000|| |Medical expenses|1.5 lakh|192338|(Ext.A18 bill)| |Loss of estate Compensation for pain and sufferings|1 lakh|25000|(died after 17 days)| |Compensation for loss of love and affection|10 lakh|25000|| |Compensation for loss of consortium|2 lakh|10000|| |Other claims disallowed.|||| |Total||4,89,738|| 2. The two insurance companies were made entirely liable under the impugned award (50% each). 3. We have heard the learned counsel for the appellants and the learned counsel for the Insurance Companies. The challenge is raised against the impugned award on the only ground that the quantum of compensation awarded is not adequate. 4. Called upon to explain and be specific, the learned counsel for the appellants, first of all, contends that the quantum of compensation awarded under the head of loss of consortium (Rs.10,000/-) is too inadequate considering the MACA No.1756 of 2011 3 age of the deceased and the age of the first appellant/claimant. We are satisfied that an amount of Rs.20,000/- deserves to be awarded under that head. 5. It is pointed out that though the deceased was an inpatient for a period of about 18 days, no compensation has been awarded under the head of Bystander's expenses or extra nourishment. We are satisfied that an amount of Rs.100/- under each head per day of hospitalisation can be awarded under that composite head. 6. The challenge is mainly directed against the quantum of compensation awarded under the head of loss of dependency. The deceased was a person aged 49 years and there was overwhelming evidence in support of that assertion. Even the birth certificate has been produced. The Tribunal, in paragraph-15 of the order, observes that the deceased was aged 59 years and then proceeded to reckon **8** as the multiplier. We are satisfied that there are convincing inputs available to conclude that the deceased was a person belonging to age group of 45 to 50 years. Going by the dictum in **Sarla Verma** v **Delhi Transport Corporation** MACA No.1756 of 2011 4 (2009 (6) SCC 121), **13** deserves to be reckoned as the multiplier. 7. The next challenge is on the quantum of monthly earnings. No better evidence was produced to prove the precise income which the deceased was earning. However, we have indisputable material to come to a conclusion that the wife and two children in addition to himself were depending on the income of the deceased to keep body and soul together - not to speak of the father and mother who have also joined as claimants. No oral evidence was adduced and it is not possible to conclude that claimants 4 and 5, the parents were wholly depending on the deceased. Available inputs further indicate that he was a business man. We have gone through the inquest report which also supports this theory. We have also seen the identity card issued by the Angamaly Merchants Association to the deceased showing his address as Cochin Chips Centre, Angamaly to support the contention that he was a business man. The learned counsel for the appellants further relies on the presumption of prudence available from 1994 under MACA No.1756 of 2011 5 clause-6 of the second schedule. He also places reliance on the decisions in **Lakshmi Devi** V **Mohammed Tabbar** (2008ACJ 1488) and **Latha Wadhwa** v **State of Bihar** (AIR 2001 SC 3218). We must remind ourselves that the burden is always on the claimants to place satisfactory, cogent and acceptable data about the income of the deceased. But, even in a case where such precise evidence about income is not forthcoming, Courts and Tribunal cannot throw their hands up in helplessness. Reasonable inferences justified by the totality of circumstances will definitely have to be drawn. In the facts and circumstances of the instant case, we are persuaded to agree that the conclusion that the deceased was earning only an income of Rs.3,000/- deserves interference. We take the view that the monthly income can safely be reckoned in the circumstances at Rs.4500/-. 8. The learned counsel for the Insurance Company points out that 1/5[th] has been deducted from the monthly earnings as the personal income of the deceased. Going by **Sarla Verma** v **Delhi Transport Corporation** (2009 (6) SCC 121), only the nuclear family consisting of four members including the deceased can be held to depend on MACA No.1756 of 2011 6 the deceased and therefore, we agree that 1/3[rd] has to be deducted towards the personal expenses of the deceased. The quantum of compensation payable under the head of loss of dependency will hence have to be reworked on the above inputs. 9. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs..2,58,700/-(Rupees Two Lakhs Fifty Eight Thousand Seven Hundred only) in addition to the amount awarded by the Tribunal. |**_Sl.No._**|**_Heads_**|**_Amount_**|)| |---|---|---|---| |1|Loss of conjugal Society|**Rs.10,000/-** (Rs.20,000/- minus Rs.10,000/-)|| |2|Loss of estate (no amount is awarded by the Tribunal)|**Rs.7500/-**(Global conventional amount)|| |3|Extra nourishment and byestanders expenses(No amount is awarded by the Tribunal)|**Rs.3,600/-**(18 x 200)|| |4|Loss of dependency|**Rs.2,37,600/-** (Rs.4500x12x2/3x13= Rs.4,68,000/- minus Rs.2,30,400/-|| ||**Total**|**Rs.2,58,700/-**|| 10. We are not persuaded to interfere with the amounts awarded under any other head. MACA No.1756 of 2011 7 11. In the result, a) This appeal is allowed in part. b) The appellants are found entitled to a further amount of Rs.2,58,700/-(Rupees Two Lakhs Fifty Eight Thousand Seven Hundred only) in addition to the amount awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rates specified by the Tribunal from the date of claim to the date of payment. d) We direct that proportionate cost for the proceedings before the Tribunal on the entire amount of compensation shall be calculated as directed in **Jeena** v **Satheesh Babu** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. ## **Sd/- R.BASANT, JUDGE** ## **sd/- K.SURENDRA MOHAN, JUDGE** css/ true copy P.S.TO JUDGE