M.A.C.A. No. 789 of 2005-C

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935** **MACA.No. 789 of 2005 (C)** **-----------------------------------[O.P(MV).NO.926/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI, DATED 30-11-2004]** **.............** ## **APPELLANTS/CLAIMANTS:** **---------------------------------------** **1. KESAVADASAN K.K., S/O.MADHAVIKUTTYAMMA, DEVAKI NILAYAM, KARUVAMBRAM P.O., MANJERI.** **2. DHANYA .E., D/O. KESAVADASAN K.K., DEVAKI NILAYAM, KARUVAMBRAM P.O., MANJERI.** **3. DEEPAK .E., S/O. KESAVADASAN K.K., DEVAKI NILAYAM, KARUVAMBRAM P.O., MANJERI.** **4. DILEEP .E., S/O. KESAVADASAN K.K., DEVAKI NILAYAM, KARUVAMBRAM P.O., MANJERI.** **(APPELLANTS 3 TO 4 ARE MINORS AND ARE REPRESENTED BY THEIR GUARDIAN FATHER THE 1ST APPELLANT HEREIN).** **BY ADVS.SRI.K.SHIBILI NAHA, SMT.SINDHU K.NAMBIAR.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. T.R.SIKHILEGAN, S/O. LATE RAMOO, TERMINAL CONTAINER MOVERS, GROUND FLOOR, UNITY CENTRE, RAILWAY GOODS SHED ROAD, W.ISLAND, COCHIN-3.** **2. M/S. ORIENTAL INSURANCE CO. LTD., SHAN COMPLEX, 1ST FLOOR, ESSAR ROAD, MATTANCHERRY, COCHIN-2.** **3. ABDUL JALEEL .P., S/O. MOHAMMED P., VEEMBUNGAL, MAMPAD P.O.** **Prv.** ## **M.A.C.A. NO.789/2005-C:** **4. C.ASHRAF, S/O. C. ALAVI, CHERUKAT HOUSE, P.O. PATHAPIRIYAM, MANJERI.** **5. ORIENTAL INSURANCE CO. LTD., JASEELA COMPLEX, NILAMBUR ROAD, MANJERI.** **R5 BY ADV. SRI.V.P.K.PANICKER.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.789 of 2005 -----------------------------------------------------------------Dated this the 12[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimants in O.P.(M.V.)No.926/2000 on the file of the Motor Accidents Claims Tribunal, Manjeri are the appellants herein. The appellants are the husband and minor children of deceased Padmini, filed the application for compensation for her death, caused on account of the rash and negligent driving of the vehicle owned by the first respondent and insrued with the 2[nd] respondet. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by its driver and awarded a total compensation of 1,6₹ 6,400/- on various heads as follows: M.A.C.A. No.789 of 2005 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Transport to hospital|1, 000| |2|Funeral expenses|2, 000| |3|Pain and suffering|5, 000| |4|Loss of estates (1800x12x11x2/3)|158400| ||Total|1, 66, 400| Dissatisfied with the quantum of compensation awarded, the appellants have filed this appeal before this court, seeking enhancement. 2. Heard the counsel for the appellants and counsel for the insurance compnay. 3. Counsel for the appellants submitted that the deceased was aged 43 years and working as anganvadi teacher and also she was doing the work of mahila pradhan and getting an average income of ₹ 5,000/- per month. But the tribunal has arbitrarily fixed her monthly income as 1,800/- per month, which is very₹ low. Further, the tribunal has taken the age of her husabnd as the basis for adopteing the multiplier, which is also unsustainable in law, in view of the decision reported in ( **2012 ACJ 2002) Amrit Bhanu Shali and others v. National Insurance Co. Ltd., and others** M.A.C.A. No.789 of 2005 3 and also followed by this court in ( **2013 (4) KLT 160) Annamkutty v. United India Insurance Co. Ltd** . Further the deceased was treated as inpatient for two days in the hospital and they have produced Ext.A9 series medical bills for 3,227/- but no amount was awarded₹ under the head medical expenses. No amount was awarded under the head loss of consortium for the husband and also loss of love and affection for the children. No amount was awarded under the head loss of estate as well. The amount awarded under the heads funeral expenses, pain and suffering and transport to hospital are also on the lower side. So according to the learned counsel, the appellants are entitled to get enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that the tribunal was perfectly justified in taking the age of the dependant, namely the husband as basis for adopting the multiplier. Further, in the absence of any convincing evidence and also the varying income, the tribunal was perfectly M.A.C.A. No.789 of 2005 4 justified in taking the average income as 1,800/- per₹ month. The total compensation awarded is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. The appellants have produced documents to show that, she was working as R.D. agent and also anganwadi teacher. But the certificates were not proved by examining the persons who issued the same. Further as a mahila pradhan, she may not get a fixed income, that may vary and only an average income can be taken for the purpose of fixing her monthly income. So considering these aspects, the amount of 1,800/- fixed by the₹ tribunal appears to be on the lower side and we enhance the same to 2,500/- per month. Further, the tribunal₹ had deducted 1/3[rd] for the personal expenses of the deceased, there are four persons including the husband, as dependants. In view of the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation** M.A.C.A. No.789 of 2005 5 **2010 (2) KLT 802 (SC)** , the deduction in such cases will be 1/4[th] and not 1/3[rd] as taken by the tribunal. Further it is the age of the deceased and not that of the dependants that has to be reckoned for the purpose of adopting proper multiplier, in view of the dictum laid down in the decisions reported in Amrit Bhanu Shali's case (supra) and Annamkutty's case (Supra). So the proper multiplier is 14 and not 11 as adopted by the tribunal. If a recalculation is made on that basis, the appellants will be entitled to get an amount of ₹ 3,15,000/(2,500x12x14x3/4) instead of 1,58,400/- awarded by the₹ tribunal and we award this amount under that head. 7. No amount was awarded under the head loss of consortium and loss of love and affection. First appellant was aged 51 years at the time of death of his wife and there are three children for them in the wedlock. There is no possibility of a re-marriage for him. He had lost the service of his wife at his old age. So considering this aspects, the tribunal ought to have awarded some amount as loss of consortium, which has not been done in M.A.C.A. No.789 of 2005 6 this case. So we award an amount of 20,000/- under the₹ head loss of consortium. Further the children were aged 16 years, 12 years, and 9 years respectively at the time of death of the deceased. They have lost the love and affection of their mother at this young age. Considering these aspects, we award an amount of 15,000/- under₹ the head loss of love and affection. No amount was awarded under the head loss of estate. So we award an amount of 5,000/- under that head. Ext.A9 series of₹ medical bills shows that they have spent nearly 3,327/-₹ for treatment. Some amount would have been incurred by them for extra nourishment and also bystanders expenses. But no amount was awarded under those heads by the tribunal. So, we award a consolidated amount of 4,000/- under the head medical expenses,₹ bystanders expenses and extra nourishment etc. We are not inclined to enhance any amount under other heads as the amount awarded by the tribunal under other heads appears to be just and proper. In all, the appellants are entitled to get an additional compensation of 2,00,600/-,₹ M.A.C.A. No.789 of 2005 7 over and above what has been awarded by the tribunal, which the 2[nd] respondent insurance company is liable to pay with 9% interest per annum from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. The amounts due to the minors shall be deposited in a nationalised bank till they attain majority, with liberty for the first appellant to withdraw the interest accrued on the same for the benefit of the minors. 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