M.A.C.A Nos.1901 & 2192 of 2006

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 30TH DAY OF JULY 2012/8TH SRAVANA 1934 MACA.No. 1901 of 2006 ----------------------------OPMV.649/2000 of MACT, TSR --------- APPELLANT/3RD RESPONDENT:: ------------------------------------ UNITED INDIA INSURANCE COMPANY LTD., IRINJALAKUDA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, `SHARANYA' HOSPITAL ROAD, KOCHI-11. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS/PETITIONERS:: ----------------------------------- 1. MINI, W/O.BAASI, NELLIPARAMBIL HOUSE, KARIMPATTA LANE, P.O.CHIYYARAM, THRISSUR. 2. RAHUL (MINOR), S/O. BAASI, DO. DO. 3. RESMI (MINOR), D/O.BAASI, DO. DO. 4. SAROJINI, W/O.CHANDRAN, DO. DO. (2ND & 3RD RESPONDENTS MINORS ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT). BY ADV. SRI.K.A.SATHEESA BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2012, A/W MACA.2192/06, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A Nos.1901 & 2192 of 2006 -----------------------------------------------Dated this the 30[th] day of July, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The claimants as well as the Insurance Company are in appeal before us. 2. The appellants in M.A.C.A.2192/06 are the widow and minor children of a newspaper agent by name Baasi, aged 38 who met with his death on account of the injuries sustained by him in a road traffic accident occurred on 25/12/99. Allegedly while the deceased was riding his scooter on the ill-fated day with the first appellant on the pillion, he was hit down by a goods auto which was proceeding behind. The deceased who sustained fatal injuries succumbed to the injuries on 02/01/2000 while undergoing treatment in the hospital. Against the claim of ` 15 lakhs, the learned Tribunal awarded a sum of M. A. C. A Nos.1901 & 2192 of 2006 -2- ` 7,07,284/- together with interest at the rate of 7% per annum. In M.A.C.A.2192/06, the claimants are challenging the adequacy of the compensation. 3. M.A.C.A No.1901/06 is filed by the Insurance Company with which the offending vehicle was insured at the relevant time. They contend that the amount of compensation awarded by the Tribunal under the head loss of dependency, loss of estate and medical expenses are on the higher side. 4. We have heard the learned counsel appearing for the claimants as well as the learned senior counsel appearing for the Insurance Company. The impugned award was also perused. 5. The accident is not disputed. The negligence of the driver of the offending vehicle also stands proved. The main grievance voiced against the award by the claimants is that they were not awarded adequate compensation for loss dependency. According to the learned counsel for the M. A. C. A Nos.1901 & 2192 of 2006 -3- claimants, the multiplicand adopted by the Tribunal is on the lower side. 6. The learned senior counsel appearing for the Insurance Company would contend that the learned Tribunal has not adopted the correct multiplier. It was pointed out that a higher multiplier was adopted by the Tribunal for arriving at the quantum of compensation. It is an admitted fact that the deceased was a newspaper agent. It is evident from Exts.A5 to A7 that the deceased was an agent of Mathrubhumi and Rashtra Deepika dailies. It is also evident that the deceased was the sub agent of the Malayala Manorama daily. The claimants would allege that the deceased was earning a monthly income of ` 13,000/- from the agency business. The learned Tribunal fixed his monthly income at ` 4,000/-. Considering the age of the deceased, the year in which the accident had occurred as well as the nature of agency business the deceased was doing, we feel justified in fixing the monthly income of the deceased at M. A. C. A Nos.1901 & 2192 of 2006 -4- ` 5,000/-. As the deceased was aged 38 at the time of the accident, the correct multiplier applicable to the age group of the deceased as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC) is 15. The claimants are the widow, two minor children and aged mother of the deceased. There is no convincing evidence on record to show that the mother was a dependent of the deceased. As the actual dependants as per evidence are only three in number, we are of the view that one third of the amount has to be deducted in consideration of the expenses which the deceased would have incurred had he been alive. When the dependency compensation is re-worked as above, it will stand enhanced to ` 6 lakhs. As the learned Tribunal awarded only a sum of ` 5,12,000/- under that head, the appellants become entitled to get an additional sum of ` 88,000/-. 7. We notice that the death occurred only on 02/01/2000 i.e. seven days after the incident. Towards pain M. A. C. A Nos.1901 & 2192 of 2006 -5- and suffering, the learned Tribunal awarded a sum of ` 25,000/-. Taking into account the excruciating pain the deceased might have undergone till the time of his death, we award an additional sum of ` 10,000/- towards compensation for pain and suffering. 8. The first appellant who is the widow was aged 30 at the time of the accident. The learned Tribunal awarded a sum of ` 20,000/- to the first appellant towards loss of consortium. As the first appellant lost her husband at an early stage, we are of the view that she has to be adequately compensated for the same and we award to her an additional sum of ` 15,000/- towards loss of consortium. 9. The second appellant who is the son of the deceased was aged 10 and the third appellant who is the daughter of the deceased was aged 8 years at the time of the accident. Towards loss of love and affection, the learned Tribunal has awarded a sum of ` 30,000/-. As the minor appellants have lost their father at their tender age, we are of the view that M. A. C. A Nos.1901 & 2192 of 2006 -6- some more amount could have been awarded by the Tribunal towards loss of love and affection and accordingly we award to them an additional sum of ` 15,000/-. 10. We notice that towards transportation expenses only a sum of ` 2,000/- is seen awarded by the Tribunal. We notice that the accident was at Thrissur. Initially the deceased was admitted to the hospital from where he was evacuated to a hospital at Ernakulam. Hence, certainly the claimants were entitled to get some more amount towards transportation expenses. Thus we award to them a sum of ` 2,000/- towards transportation expenses. 11. The learned senior counsel appearing for the Insurance Company would submit that the learned Tribunal has awarded a sum of ` 59,784/- towards medical expenses in spite of the fact that the claimants have produced only Ext.A9 series medical bills, according to which the actual amounts spent was only ` 5,736/-. The learned counsel for the claimants per contra would submit that they had M. A. C. A Nos.1901 & 2192 of 2006 -7- summoned the actual medical bills from the Insurance Company where the claimants have submitted the bills for reimbursement under the medi-claim policy. But as the claimants have got reimbursement of a major portion of the medical expenses, we are of the view that the amount of compensation to be awarded to the claimants towards medical expenses has to be limited to the amount as per Ext.A9 series medical bills. Accordingly, the amount of compensation awarded to the claimants towards medical expenses shall stand reduced to ` 6,000/-. 12. Another argument advanced by the learned counsel for the Insurance Company was that in addition to the award of compensation for loss of dependency, the learned Tribunal has awarded a sum of ` 50,000/- towards loss of estate. This according to the learned senior counsel is on the higher side and the claimants can be awarded only a lesser sum as they were awarded a just and reasonable sum towards compensation for loss of dependency. We see force M. A. C. A Nos.1901 & 2192 of 2006 -8- in the submission made by the learned counsel for the Insurance Company and accordingly, we deduct the amount of compensation awarded for loss of estate to ` 5,000/-. So there will be a total deduction of ` 98,784/-. While offsetting this amount against the additional amount awarded by us, the total amount of compensation shall stand enhanced by ` 31,216/-. The additional amount awarded shall carry interest at the rate of 7% per annum from the date of claim petition till realisation. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A Nos.1901 & 2192 of 2006 -9-