High Court of KeralaDivision Bench2011-08-12Appeal allowed in part; revised quantum and dis...

M.A.C.A. No.1995 of 2005

Case / Petition Number:MACA No. 1995 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M.C. Hari Rani
Judgment Date: 2011-08-12
Court Decision / Holding: 1) The appeal is allowed in part. 2) The appellants are entitled to Rs 2,92,500 with interest at 7.5% per annum from the date of petition to payment/realisation. 3) The 1st appellant (mother) shall receive 80% of the total amount plus interest; the remaining 20% (plus proportionate interest) shall be payable to the other claimants/legal heirs of the deceased father. 4) All other directions of the Tribunal are upheld.
Final Disposition: Appeal allowed in part; revised quantum and distribution; increased interest; Tribunal directions upheld in other respects.

Parties to the Case

Appellants / Petitioners

Pathumma,i aged 63 years, W/O Late Kunhammaed
Muhammad, aged 53 years, S/o Late Kunhamammad
Aboobacker, aged 49 years, S/o Late Kunhammed
Amina, aged 44 years, D/o Late Kunhammed
Abdulkhader, aged 43 years, S/o Late Kunhammed
Ali, aged 39 years, S/o Late Kunhammed
Moideen, aged 37 years, S/o Late Kunhammed

Respondents

1. M. Soman, S/o. Koran, Malayil House, Puthoor, Koduvally, Calicut District
2. Pradeepkumar, S/o.B Alan, Vellarammal Veedu, Thazhekodu Aomsom, Manassery Desom, Calicut
3. The National Insurance Company Ltd., P.B.No.11, Noor Complex, Mavoor Road, Calicut.

Legal Representation & Advocates

Counsels for Petitioners

• Smti. Latha Prabhakaran

Counsels for Respondents

• Adv. Sri. George Cherian (Thiruvalla) for R3

Case Synopsis & Summary

This is a Motor Accident Claims Appeal from the Kerala High Court (Division Bench) arising from a 1997 motor accident in which Asharaf, a young fish vendor driving a goods autorickshaw, died. The Motor Accident Claims Tribunal, Kozhikode, had awarded Rs 1,50,000, calculating a modest loss under various heads (loss of dependency, funeral, loss of estate, etc.) with a monthly income of Rs 1,500 assumed for the deceased. The appellants, seven legal heirs of the deceased, challenged the quantum, contending that the Tribunal erred in fixing income too low and did not apply higher presumptive income or the proper framework under the Motor Vehicles Act. The High Court, noting the deceased’s licence (Ext. A3) and his young age, recalibrates the income at Rs 2,000 per month, relying on Clause-6 of the 2nd Schedule and the Lata Wadhwa principle that certain non-earning contributors can be presumed to earn. It computes compensation under Sec. 163A of the MV Act, which would yield Rs 4,32,000, with a 1/3 deduction for legal heirs, totaling Rs 2,88,000, plus Rs 2,000 for funeral and Rs 2,500 for loss of estate, to arrive at Rs 2,92,500. The Court also increases interest to 7.5% p.a. and directs distribution: 80% to the mother-appellant and 20% to other legal heirs of the deceased father, while upholding other Tribunal directions. The appeal is allowed in part, with the revised quantum and distribution.

Provisions of Law Cited

Motor Vehicles Act, 1988 Sec. 166Motor Vehicles Act, 1988 Sec. 163AClause-6 of the 2nd Schedule (from 1994)Note of the 2nd Schedule

Legal Doctrines & Maxims

Presumption under Clause-6 of the 2nd Schedule
Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218) principle that a non-earning homemaker can be presumed to earn an income

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal erred in fixing monthly income at Rs 1,500. Although better evidence of the deceased’s income was not produced, he was a licensed driver with Ext. A3 and a fish vendor; the court should adopt Rs 2,000 per month as income, and even consider the Lata Wadhwa principle allowing a higher presumptive income for a person of his profile. On Sec.163A, the younger age of the deceased (20-25) places him in the 11th income group, yielding Rs 4,32,000; after deducting 1/3 for the legal heirs, the entitlement becomes Rs 2,88,000, plus Rs 2,000 for funeral and Rs 2,500 for loss of estate, totaling Rs 2,92,500. They urge the Court to apply the higher standard of Sec.163A and to fix the rate of interest at 7.5% per annum; they further seek appropriate distribution with the mother receiving 80% of the amount.

Contentions of Respondents

The respondents’ counsel contested the escalation of compensation, maintaining that the Tribunal’s award was in line with the evidence and the applicable legal framework. They questioned reliance on higher presumptive income in the absence of concrete proof of earnings beyond the 1,500 figure and noted that the statutory framework requires careful application of the 2nd Schedule. They pressed that existing heads of compensation, as awarded by the Tribunal, should be preserved unless clearly contrary to law or evidence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Muneer	2003 (1) KLT 137	Positive	Cited to support the proposition that the amount payable under Sec.166 should not fall below the amount payable under Sec.163A.
Malik v. Kiran Pal	(2009) 14 SCC 1	Positive	Cited as authority for considering the Sec.163A framework in calculating compensation.
Lata Wadhwa v. State of Bihar	(AIR 2001 SC 3218)	Positive	Used to justify presuming a non-earning home maker can earn income (3,000 per mensem) and applying presumptions in calculating income.

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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 MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 MACA.No. 1995 of 2005() ----------------------OPMV.1771/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPELLANT/PETITIONERS ----------------------------------- 1. PATHUMMAI, AGED 63 YEARS, W/O.LATE KUNHAMMAD. 2. MUHAMMAD, AGED 53 YEARS, S/O.LATE KUNHAMMAD. 3. ABOOBACKER, AGE 49 YEARS S/O.LATE KUNHAMMAD. 4. AMINA, AGE 44 YEARS, D/O.LATE KUNHAMMAD. 5. ABDULKHADER, AGED 43 YEARS, S/O.LATE KUNHAMMAD. 6. ALI, AGE 39 YEARS, S/O.LATE KUNHAMMAD. 7. MOIDEEN, AGE 37 YEARS, - S/O.LATE KUNHAMMAD. (ALL ARE RESIDING AT PUTHIYOTHIL HOUSE, POOVATTUPARAMBA, KOZHIKODE). BY ADV. SMT.LATHA PRABHAKARAN RESPONDENT(S): RESPONDENTS IN OP -------------------------------- 1. M.SOMAN, S/O. KORAN, MALAYIL HOUSE, PUTHOOR, KODUVALLY, CALICUT DISTRICT. 2. PRADEEPKUMAR, S/O.B ALAN, VELLARAMMAL VEEDU, THAZHEKODU AMSOM, MANASSERY DESOM, CALICUT. **......2** **-: 2 :-** 3. THE NATIONAL INSURANCE COMPANY LTD., - P.B.NO.11, NOOR COMPLEX, MAVOOR ROAD, CALICUT. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: //true copy// P.S. to Judge ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No.1995 of 2005 ------------------------------------------------Dated this the 12[th] day of August, 2011** ## **JUDGMENT** ## **Basant,J.** The claimants are the appellants. The parents of the deceased claimed compensation for the loss suffered by them on account of the death of Asharaf, their son who succumbed to the injuries suffered by him in a motor accident which took place on 7/5/1997. The deceased was a fish vendor by profession. At the time of accident, he was driving a goods autorikshaw. He had requisite licence as established by production of Ext.A3 driving licence. The original claimants were his parents. His father - the 1[st] claimant expired during the pendency of the proceedings. His father was aged 60 years and his mother was aged 55 years at the time of the accident. On the death of his father/the 1[st] claimant, other appellants were arrayed as legal heirs of the deceased father/1[st] claimant. 2. The Tribunal passed the impugned award directing payment of an amount of `1,50,000/- along with interest at the rate of 6% per annum as per the details shown below: ## **M.A.C.A. No.1995 of 2005** -: 2 :- |**Sl.No.**|**Head of Claim**|**Amount awarded (Rs.)**| |---|---|---| |1|Loss of earning|...| |2|Transport to hospital|1,000/-| |3|Extra nourishment|...| |4|Damage to clothing|...| |5|Medical expenses|...| |6|Bystander's expenses|...| |7|Funeral expenses|2,000/-| |8|Pain and suffering|5,000/-| |9|Loss of dependency|1,32,000/-<br>(12000 x 11)| |10|Loss of love and affection|10,000/-| |11|Loss of consortium|...| |12|Loss of estate|...| |13|Other heads, if any.<br>(a) Loss of fish & writ watch<br>(b) Loss of shortened life|....| |14|Total|**1,50,000/-**<br>with 6% interest| The total claim was for `5,00,000/-. 3. The challenge is directed only against the quantum of compensation awarded. We have heard the learned counsel for the appellants/claimants and the learned counsel for the respondent/insurance company. The learned counsel for the appellants assails the impugned award on various grounds. 4. First of all, it is contended that the quantum of monthly income reckoned by the Tribunal to ascertain loss of dependency is too meagre. The Tribunal assumed that the monthly income of ## **M.A.C.A. No.1995 of 2005** -: 3 :- the deceased must have been `1,500/-. This assumption is totally unrealistic. It is true that better evidence to prove the income of the deceased has not been produced. But it is very clear that he was a person belonging to the age group of 20 to 25 years. He claimed to be a fish vendor. But there is an unmistakable evidence to suggest that he had the requisite licence (Ext.A3) to undertake income earning activity as a skilled driver also. In any view of the matter, the Tribunal has erred grossly in reckoning the monthly income at `1,500/-, contends counsel. We find merit in that contention. 5. The learned counsel for the appellants further contends that in view of the decisions in **National Insurance Co. Ltd., v. Muneer** (2003 (1) KLT 137) and **Malik v. Kiran Pal** [(2009) 14 SCC 1], the Tribunal ought to have taken note of the fact that under any circumstances the amount awarded under Sec.166 of the Motor Vehicles Act should not be permitted to fall below the amount payable under Sec.163A of the M.V. Act. In this view of the matter, it is contended that the amount payable under Sec.163A of the M.V. Act ought to have been awarded by the Tribunal. 6. We consider it absolutely reasonable to assume that the deceased would have earned an income of 2,000/- per mensem. ## **M.A.C.A. No.1995 of 2005** -: 4 :- Even in the absence of any better evidence, the available inputs embolden us adequately to draw that presumption of prudence. In coming to this conclusion, we take note of the presumption permitted under Clause-6 of the 2[nd] Schedule from 1994. We also take note of the decision in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) which enables the courts to conclude that a non-earning home maker/house wife can also be presumed to earn an income of `3,000/- per mensem. In these circumstances, we take it that the income can safely be reckoned at `2,000/- per mensem at any rate. 7. We now look at the amount that would have been payable if the claim were staked under Sec.163A of the M.V. Act. The deceased being a person aged 20 to 25 years would fall under the 3[rd] horizontal column of the table/chart given under Clause-1 of the 2[nd] Schedule. As his annual income is found to be `24,000/- he would fall under the 11[th] income group in the vertical column. The horizontal and vertical columns meet and the compensation payable in the case of death is shown to be `4,32,000/-. From this, 1/3[rd] amount has to be deducted in accordance with the note of the 2[nd] Schedule. That would mean that the legal heirs/claimants would be entitled for an amount of `2,88,000/- (`4,32,000/- x 2/3). In addition, an amount of ## **M.A.C.A. No.1995 of 2005** -: 5 :- `2,000/- under the head of funeral expenses and `2,500/- under the head of loss of estate shall be payable. 8. The above discussions lead us to the conclusion that the legal heirs would be entitled to an amount of `2,92,500/- (Rupees two lakhs ninety two thousand and five hundred only) as per the details given below: 1. Amount payable under Clause-1 of of the 2[nd] Schedule - (`4,32,000/- x 2/3) `2,88,000/- 2. Funeral expenses payable - under Clause 3(i) ` 2,000/- 3. Loss of estate under - Clause 3(iii) ` 2,500/---------------- - Total `2,92,500/======= We assume that the said amount is absolutely fair and reasonable considering the loss suffered by the claimants, particularly the mother of the deceased. 9. Interest has been awarded by the Tribunal only at the rate of 6% per annum. The learned counsel argues and we are satisfied that interest is liable to be granted at a higher rate. We direct that interest be paid at the rate of 7.5% per annum. ## 10. In the result: - (a) This appeal is allowed in part. - (b) The appellants are found entitled to an amount of ## **M.A.C.A. No.1995 of 2005** -: 6 :- `2,92,500/- (Rupees two lakhs ninety two thousand and five hundred only) as compensation along with interest at the rate of 7.5% per annum from the date of the petition to the date of payment/realisation. (c) Considering the nature and the extent of dependency, we direct that the 1[st] appellant/mother shall be entitled to 80% of the entire amount of compensation along with interest and costs. The remaining 20% along with proportionate interest shall be payable to the other claimants/legal heirs of the deceased father. (d) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge) Sd/M.C. HARI RANI (Judge)** ## **Nan/** **//true copy// P.S. to Judge**