MACA Nos. 599 & 3280 of 2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939** **MACA.No. 599 of 2017** **AGAINST THE AWARD IN OP(MV) NO.1424/2015 OF M.A.C.T.,KOZHIKODE DATED 20-072016** ## **APPELLANT/3RD RESPONDENT** **I.C.I.C.I LOMBARD GENERAL INSURANCE CO. LTD CITY PLAZA, 2ND FLOOR, YMCA CROSS ROAD, KOZHIKODE, THROUGH THE LEGAL MANAGER ICICI LOMBARD GENERAL INSURANCE CO. KANNANKERY ESTATE,3RD FLOOR, SHANMUGHAM ROAD,MARINE DRIVE,KOCHI- 682 031** ## **BY ADV.SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2:** **1. VINA DEVI** **W/O LATE LAXMI RAM, AGED 30 YEARS RESIDING AT SHERPUR,MANIGACHHI, NARAYANPUR, WARD NO.9,P.S. SAKATPUR, DARBHANGA DISTRICT, BIHAR STATE- 847 407** **2. PRITI KUMARI (MINOR), D/O LATE LAXMI RAM, AGED 12 YEARS RESIDING AT SHERPUR,MANIGACHHI, NARAYANPUR, WARD NO.9,P.S. SAKATPUR, DARBHANGA DISTRICT, BIHAR STATE- 847 407 REP. BY MOTHER VINA DEVI** **3. MITHU KUMAR (MINOR), S/O LATE LAXMI RAM, AGED 10 YEARS RESIDING AT SHERPUR,MANIGACHHI, NARAYANPUR, WARD NO.9,P.S. SAKATPUR, DARBHANGA DISTRICT, BIHAR STATE- 847 407 REP. BY MOTHER VINA DEVI** **4. PARWIT KUMARI(MINOR) D/O LATE LAXMI RAM, AGED 8 YEARS RESIDING AT SHERPUR,MANIGACHHI, NARAYANPUR, WARD NO.9,P.S. SAKATPUR, DARBHANGA DISTRICT, BIHAR STATE- 847 407 REP. BY MOTHER VINA DEVI** **5. ANJALI KUMARI (MINOR) D/O LATE LAXMI RAM, AGED 5 YEARS RESIDING AT SHERPUR,MANIGACHHI, NARAYANPUR, WARD NO.9,P.S. SAKATPUR, DARBHANGA DISTRICT, BIHAR STATE- 847 407 REP. BY MOTHER VINA DEVI** **MACA.No. 599 of 2017 -2-** **--------------------** ## **6. CHAUDHARY RAM** **S/O MUNNAR RAM, AGED 59 YEARS, RESIDING AT SHERPUR,MANIGACHHI, NARAYANPUR, WARD NO.9,P.S. SAKATPUR, DARBHANGA DISTRICT, BIHAR STATE- 847 407** **7. BUCHANIYA DEVI W/O CHAUDHARY RAM, AGED 55 YEARS RESIDING AT SHERPUR,MANIGACHHI, NARAYANPUR, WARD NO.9,P.S. SAKATPUR, DARBHANGA DISTRICT, BIHAR STATE- 847 407** **8. THE MANAGING DIRECTOR BON CARGOS PVT LTD MYLAKKAD P.O. KOTTIYAM, KOLLAM- 691 571** ## **9. SANKAR RAJ @ CHINTHU** **S/O RAJENDRAN NAIR, AGED 25 YEARS HARISREE HOUSE, KAVALYOOR, MOONGODE, THIRUVANANTHAPURAM- 695 144** **R8 BY ADV. SRI.M.A.ABDUL HAKHIM R1,R6&7 BY ADV. SRI.R.RETHEESH KUMAR R1,R6&7 BY ADV. SMT.DIVYA B.NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bng** ## **P.D.RAJAN, J.** **- - - - - - - - - - - - - - - - - - -** M.A.C.A. Nos.599 & 3280 of 2017 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 23[rd] day of January, 2018 ## **JUDGMENT** These appeals are preferred against the award in O.P(MV) No.1424/2015 of the Motor Accidents Claims Tribunal, Kozhikode. M.A.C.A No.599 of 2017 was preferred by the insurer and M.A.C.A No.3280 of 2017 was preferred by the legal heirs of the deceased Lakshiram. 2. The claimant's case in the lower court was that on the date of accident, the deceased was walking by the side of Koloathara Modern Bazar road, the vehicle No.KL-2-U-2470 driven in a rash and negligent manner, knocked down the deceased. As a result, he sustained serious injuries and while undergoing treatment he succumbed to the injuries. R1 and the insurer contested the matter and filed a written statement. R2 is the driver and he was set ex-parte. The insurer admitted the insurance of the vehicle. The claimants evidence consist of Exts.A1 to A4 and respondents evidence consist of ## **M.A.C.A. Nos.599 & 3280 of 2017** **-2-** Exts.B1 to B3. There was no dispute with regard to the accident. 3. The learned counsel appearing for the appellant in M.A.C.A No.3280/2017 contended that, the deceased was working as helper in Premier Chappals, Cheruvannur and was getting Rs.14,000/- per month. The learned Tribunal took only Rs.5,000/- as his monthly income. The learned counsel appearing for the appellant in M.A.C.A No.599/2017 (insurer) contended that, no evidence has been adduced before the Tribunal to prove the income. Hence, the income taken by the Tribunal is justifiable. 4. It is an admitted fact that the deceased was working at Foot Wear shop as a sales man. Even though, he stated so, no documentary evidence has been adduced by the claimants to prove the income. Apex court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735)**_ held as follows: ## **M.A.C.A. Nos.599 & 3280 of 2017** **-3-** _8. The appellant claimant in his appeal further claimed that he had been earning Rs.10,000/- p.m. By doing vegetable vending work. The High Court however, considered the loss of income at Rs.3,500/- p.m. Considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to prove his monthly income. In this regard, this Court, in Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd, has held as under: (SCC pp.242-43, paras 13-15)_ _13. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs.4500/- per month at the time of accident. This claim is reduced by the tribunal to a sum of Rs.3,000/only on the assumption that the wages of a labourer during the relevant period viz. Int he year 2004, was Rs.100 per day. This assumption in out view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs.3000 per month. Secondly, the appellant was working as a coolie and therefore, we cannot except him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant._ ## **M.A.C.A. Nos.599 & 3280 of 2017** **-4-** _14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time._ _15. In the present case, appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs.100 to Rs.150 per day or Rs.4500 per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.4500/to Rs.3000/- per month. We, therefore, accept his statement that his monthly earning was Rs.4500/-.”_ _9. There is no reason in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs.6500/- per month._ In view of the above decisions, a sum of Rs.8,000/- may be reasonable to calculate compensation for dependency. 5. In view of the decision of the apex court in ## **M.A.C.A. Nos.599 & 3280 of 2017** **-5-** _**Sarla Verma v. Delhi Transport Corporation**_ (2010 (2) KLT 802 (SC), dependents are entitled to get just amount as compensation. The learned Tribunal relied on _**Rajesh v. Rajbir Singh**_ [(2015 ACJ 1403 (SC)]. In _**National Insurance Company Limited v. Pranya Sethi**_ [2017(4) KLT 662 (SC)], apex court held that additional 40% should be added along with the monthly income, if the age is below 40 years. Therefore, the total income is Rs.11,200/[Rs.8,000+(8000x40%)]. Therefore, the loss of dependency is Rs.21,50,400/- (Rs.11,200x12x16). There are four dependents, hence ¼ is to be deducted. The balance amount is Rs.16,12,800/-. The learned Tribunal already awarded Rs.10,18,000/-. In view of the decision in _**Pranay Sethi**_ (supra), the following amount is added. The amount awarded on funeral expense, loss of consortium and loss of estate is modified as Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. For love and affection Rs.1,00,000/is awarded and loss of care and guides of children awarded ## **M.A.C.A. Nos.599 & 3280 of 2017** **-6-** in view of the **Rajesh v. Ranbir Singh** (supra) is confirmed. For transport to hospital Rs.5,000/- is already awarded. Rs.15,000/- awarded for pain and suffering is confirmed. Additional Rs.2,000/- is awarded for damages to clothing. Therefore, the total amount comes to Rs.18,04,800/(Rs.16,12,800+40,000+15,000+15,000+1,00,000+ 15,000+ 5,000+2,000). Hence the award amount of the Tribunal in O.P.(MV) No.1424/2015, Rs.14,90,000/- is modified and the appellants are entitled to get Rs.18,04,800/- with 9% interest from the date of petition till realization and proportionate cost. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of the judgment. In view of the above said discussion, M.A.C.A No.599/2017 and M.A.C.A No.3280 are disposed of accordingly. Sd/- **P.D.RAJAN** **JUDGE** bng //True Copy// P.A to Judge