MACA No. 808 of 2010

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937** **MACA.No. 808 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV 1155/2006 of M.A.C.T., MANJERI, DATED 03-03-2010.** **APPELLANT(S)/PETITIONERS:** **--------------------------** **1. SANTHA, W/O.LATE RAGHAVAN, RESIDING AT ANIMANGALATH HOUSE, PULIKKAL, MALAPPURAM DISTRICT.** **2. SHAJI, S/O.LATE RAGHAVAN, RESIDING AT ANIMANGALATH HOUSE, PULIKKAL, MALAPPURAM DISTRICT.** **3. SHANITHA, D/O.LATE RAGHAVAN, RESIDING AT ANIMANGALATH HOUSE, PULIKKAL, MALAPPURAM DISTRICT.** **4. SAVITHA, D/O.LATE RAGHAVAN. RESIDING AT ANIMANGALATH HOUSE, PULIKKAL, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.VENUGOPAL (1086/92)** **RESPONDENT(S):** **--------------** **1. ATTASSERI SIBIL, S/O.AHAMMEDKUTTY, MANNILPARAMBIL HOUSE, THAVANNUR-P.O., MUTHUVALLUR, MALAPPURAM DISTRICT.** **2. NOUFAL KOZHITHODI, KOZHIPARAMBA HOUSE, KUZHIMANA P.O., KIZHISSERI, MALAPPURAM.** **3. THE ORIENTAL INSURANCE COMPANY LTD., JASEELA COMPLEX, NILAMBUR ROAD, MANJERI, MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGER.** **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- ## **M.A.C.A. No.808 of 2010** -------------------------------------------------------------Dated this the 17[th] day of February, 2016 ## **JUDGMENT** ## **P.N.RAVINDRAN, J** The appellants are the claimants in O.P.(MV)No.1155 of 2006 on the file of the Motor Accidents Claims Tribunal, Manjeri, a petition filed by them under section 166 of the Motor Vehicles Act, 1988, claiming the sum of 5,00,000/- as compensation for the death₹ of late Raghavan, husband of the first appellant and father of the other appellants in a motor accident that took place on 16.12.2005. The first respondent is the driver of the motor bike involved in the accident, the second respondent is its owner and the third respondent its insurer. The claimants had in the claim petition averred that late Raghavan sustained injuries when the motor bike owned by the second respondent and driven by the first respondent in a rash and negligent manner hit late Raghavan who was a pedestrian on the KozhikodeKondotty public road and that he succumbed to the injuries sustained, on 17.12.2005, while undergoing treatment at Medical College _**M.A.C.A. No.808 of 2010**_ 2 Hospital, Kozhikode. It was contended that the accident took place solely on account of the rash and negligent driving of the motor bike by the first respondent. 2. Upon receipt of notice, the first respondent entered appearance but he did not file a written statement. The second respondent, the owner of the motor bike did not enter appearance. He was consequently set exparte. The third respondent, the insurer entered appearance and filed a written statement, admitting insurance coverage, but denying its liability to pay compensation on the ground that the first respondent did not possess a valid driving licence to drive the motor bike. Before the tribunal no oral evidence was adduced on either side. However by consent, Exts.A1 to A8 were marked on the side of the claimants and Exts.B1 and B2 were marked on the side of the third respondent insurer. The Motor Accidents Claims Tribunal considered the rival contentions and held relying on the police records that the accident took place on account of the negligence of the first respondent. The tribunal repelled the contention of the third respondent insurer that the first respondent did not possess a valid driving licence. The tribunal thereafter proceeded to award the sum of ₹2,40,500/- as compensation under various heads and directed the third respondent insurer to deposit the said amount with interest at _**M.A.C.A. No.808 of 2010**_ 3 7% per annum from the date of petition till realisation along with costs quantified at 1,000/-. The tribunal further directed that out of the₹ amount deposited the sum of 5,000/- awarded under the head loss of₹ consortium shall be given to the wife of the deceased and the balance amount shall be divided among the claimants equally. The claimants have, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. 3. We heard Sri.P.Venugopal, learned counsel appearing for the appellants and Smt.K.S.Santhi, learned counsel appearing for the third respondent. Notice to respondents 1 and 2 was dispensed with for the reason that the third respondent insurer has not filed an appeal challenging the finding entered by the tribunal that it is liable to indemnify them. The deceased was aged 54 years on the date of the accident. He was running a tea shop. He died on the very next day after the accident while undergoing treatment at Medical College Hospital, Kozhikode. The tribunal has awarded only the sum of ₹5,000/- as compensation under the head pain and suffering. Even in cases of instantaneous death, this court and the Apex Court has consistently been awarding the sum of 10,000/- as compensation for₹ pain and suffering. We accordingly enhance the compensation awarded under the head pain and suffering from 5,000/- to 10,000/-. The₹ ₹ _**M.A.C.A. No.808 of 2010**_ 4 Apex Court has in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] held that the sum of ₹1,00,000/should invariably be awarded as compensation under the head loss of consortium to the surviving spouse and that in the absence of any evidence to the contrary regarding higher expenditure, a minimum amount of 25,000/- should₹ be awarded under the head funeral expenses. In the case on hand, the tribunal has awarded to a 47 year old widow only 5,000/- as₹ compensation under the head loss of consortium and 2,000/- towards₹ funeral expenses. In the light of the decision of the Apex Court in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], we award an additional compensation of ₹95,000/- to the first appellant/first claimant under the head loss of consortium and the sum of 23,000/-₹ under the head funeral expenses. 4. The tribunal has awarded the sum of 2,20,000/- as₹ compensation under the head loss of dependency, taking the monthly income of the deceased as 2,000/- and the multiplier as 11. The₹ tribunal has also deducted 1/3[rd] of the income thus estimated by it towards personal expenses of the deceased, having regard to the fact that his wife alone was dependent on him. The tribunal has however not taken into account the future prospects of the deceased while computing the compensation payable under the head loss of _**M.A.C.A. No.808 of 2010**_ 5 dependency. It is now well settled by a series of decisions of the Apex Court including the decision in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] that even in the case of persons working in the unorganized sector, if the victim was aged above 50 years, 15% increase in the income can be taken into consideration for future prospects. The deceased was running a tea shop. He was maintaining a family consisting of himself, his wife, son and two daughters. He had admittedly brought up three children and had also given them in marriage. He was also residing in his own house. The accident took place in the year 2005. In such circumstances, having regard to the ground realities, we are of the opinion that on a modest estimate this court can proceed to award compensation for loss of dependency on the basis that the deceased was earning a monthly income of ₹3,000/-. Considering the future prospects as well, this court will in our opinion be justified in taking 3,250/- as the multiplicand for the₹ purpose of computing the loss of dependency. Computed on that basis, the compensation payable to the appellants/claimants under the head loss of dependency would be 3,250 x 12 x 11 x 2/3 = 2,86,000/-.₹ ₹ After giving credit to the sum of 2,20,000/- awarded by the tribunal,₹ the claimants will be thus entitled to a further sum of 66,000/-. We₹ accordingly award an additional sum of 66,000/- as compensation to₹ _**M.A.C.A. No.808 of 2010**_ 6 the appellants/claimants under the head loss of dependency. 5. The tribunal has awarded only the sum of 5,000/-₹ as compensation under the head loss of love and affection to the three children of the deceased. Notwithstanding the fact that claimants 2 to 4 were not dependant on the deceased and had been given in marriage, we are of the opinion that, being the children of the deceased, they are entitled to be awarded compensation under the head loss of love and affection, which we fix at ₹25,000/-. Consequently, the appellants/claimants will be entitled to get an additional compensation of 20,000/- under the head loss of love and₹ affection. 6. The impugned award discloses that the tribunal has awarded only the sum of 2,500/- as compensation under the head₹ loss to the estate. Having regard to the fact that the deceased was running a tea shop and was maintaining a family consisting of himself, wife, son and two daughters, we are of the opinion that on a modest estimate the tribunal ought to have awarded the sum of 10,000/- as₹ compensation under the head loss to the estate. We accordingly award a further sum of 7,500/- as compensation under the head loss of₹ estate. We accordingly allow the appeal in part and award to the _**M.A.C.A. No.808 of 2010**_ 7 appellants/claimants an additional sum of ₹5,000 + 95,000 + 23,000 + 66,000 + 20,000 + 7,500 = 2,16,500/- as compensation₹ over and above the compensation awarded by the tribunal. The third respondent insurer shall deposit the said amount together with interest at 9% per annum from the date of petition till the date of deposit within three months from today. From the amount deposited, the sum of 25,000/- and the interest thereon shall be released to claimants 2,₹ 3 and 4 in equal shares and the balance amount shall be disbursed to the wife of the victim, namely the first claimant. No costs. _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** //True Copy// P.A. to Judge ss