MACA.No. 1800 of 2011 (OPMV.499/2007 of II Additional Motor Accidents Claims Tribunal, Kozhikode)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 10TH DAY OF JANUARY 2014/20TH POUSHA, 1935** ## **MACA.No. 1800 of 2011 ( )** **-------------------------OPMV.499/2007 OF II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE.** **......** ## **APPELLANTS/PETITIONERS:** **-------------------------------------------** **1. REMYA, W/O.LATE NISHITH, ''KARUNAKARA VIHAR'', P.O. ERANHIPPALAM, KOZHIKODE DISTRICT.** ## **2. SIDHARTH, S/O.LATE NISHITH, -DO- -DO-.** ## **3. SANGAMITHRA, D/O.LATE NISHITH, -DO- -DO-.** ## **4. P. PADMANABHAN, F/O.LATE NISHITH, -DO- -DO-.** ## **5. P. SREEDEVI, W/O.PADMANABHAN, -DO- -DO-.** **(APPELLANTS 2 & 3 ARE MINORS AND REPRESENTED BY THEIR MOTHER 1ST APPELLANT).** ## **BY ADV. SRI.V.KRISHNA MENON.** ## **RESPONDENTS/RESPONDENTS:** **-------------------------------------------------** **1. MRS.MANASI JAGANIVASAN, W/O.JAGANIVASAN, ROSE VILLA, PUTHIYANAGADI, P.O. PAVANGADU, KOZHIKODE-673 021, (OWNER OF BUS KL-11E-50).** **2. RAFEEK. K., S/O.MUHAMMED KOYA, KANDIYIL HOUSE, P.O. MAKKADA, KOZHIKODE-673 617, (DRIVER OF BUS KL-11E-50).** **3. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., G.H. ROAD, KOZHIKODE-673 032.** **R3 BY ADVS. SRI.S.PARAMESWARAN, SRI.GEORGE CHERIAN, SRI.VPK.PANICKER.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs.** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** ............................................................................ M.A.C.A.NO.1800 OF 2011 ........................................................................... Dated this the 10[th] day of January, 2014. ## **JUDGMENT** ## **Ramakrishnan, J.** The claimants in OP(MV)No.499/2007 on the files of the Second Additional Motor Accidents Claims Tribunal, Kozhikode, are the appellants herein. The appellants, who are the wife, children and parents of deceased Nishith, filed the application for compensation for his death caused on account of the rash and negligent driving of a vehicle by the second respondent, owned by the first respondent and insured with the third respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of a vehicle by the second respondent and awarded a total compensation of Rs.5,75,000/- on various heads as follows: Transport to hospital Rs. 1,500 Damage to clothing Rs. 500 Funeral expenses Rs. 3,000 Loss of love & affection Rs. 10,000 Loss of consortium Rs. 10,000 Loss of estate Rs. 5,000 Pain & sufferings Rs. 5,000 Loss of dependency Rs.5,40,000 2 M.A.C.A.NO.1800 OF 2011 ---------------Total Rs.5,75,000 ======= 2. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have preferred this appeal seeking enhancement. 3. Heard the learned counsel for the appellants and the learned counsel for the insurance company. 4. The counsel for the appellants submitted that, in fact the deceased was working as an employee in the Hindustan Lever Ltd and getting a monthly income of Rs.7,599/- per month and produced Ext.A4 to prove this fact. But the Tribunal has not relied on the same and rejected the same and notionally fixed his monthly income at Rs.4,000/- without taking note of the future prospects etc. So, the monthly income fixed by the Tribunal is on the lower side. If the monthly income is increased, they are entitled to get additional compensation under the head loss of dependency, for which the appellants are entitled to. Further, the first appellant was aged only 30 years at the time of death of her husband and appellants 2 and 3 were aged only 4 years and one year respectively and M.A.C.A.NO.1800 OF 2011 3 parents were aged 76 and 66 years. They have lost the support of their breadwinner at that age. So, the amounts awarded under the head loss of consortium, loss of love and affection are also on the lower side. The amounts awarded under the head funeral expenses, loss of estate, pain and sufferings suffered by the deceased are also on the lower side. According to the counsel for the appellants, the appellants are entitled to get enhancement under all heads. 5. On the other hand, the counsel for the insurance company submitted that the appellants have not produced any acceptable evidence to prove the income and avocation of the deceased. So, under the circumstances, the Tribunal was perfectly justified in fixing his monthly income at Rs.4,000/which included future prospects as well. The total compensation awarded by the Tribunal is just and proper and no interference is called for at the hands of this Court. 6. We have considered the rival contentions of both the parties in detail. 7. The case of the appellants was that the deceased was working in Hindustan Lever Ltd and getting Rs.7,599/- per month. They have produced Ext.A4 to prove this fact. Ext.A4 M.A.C.A.NO.1800 OF 2011 4 is not the original document issued. It was only a photocopy. There is no explanation forthcoming from the side of the appellants as to why they have not produced the original of Ext.A4. Further none from the establishment, who issued Ext.A4 was examined to prove the contents of Ext.A4 as well. So, under the circumstances, the Tribunal was perfectly justified in not relying on Ext.A4 for fixing the monthly income of the deceased. In the absence of any acceptable evidence adduced on the side of the appellants regarding occupation and income of the deceased, the Tribunal has to do some guess work and fix his income notionally taking note of the future prospects of the deceased as well. 8. The accident in this case occurred on 20.6.2006. So in the absence of any evidence regarding his income, the amount of Rs.4,000/- fixed by the Tribunal as his monthly income including future prospects cannot be said to be on the lower side. We are not inclined to interfere with the fixation of monthly income fixed by the Tribunal. The amount awarded by the Tribunal under the head loss of dependency is just and proper as correct multiplier has been taken and one fourth was deducted for personal expenses of the deceased considering the M.A.C.A.NO.1800 OF 2011 5 fact that there are five dependants. So, the appellants are not entitled to get any enhancement under the head loss of dependency. 9. But there is some force in the submission made by the counsel for the appellants that the amounts awarded under the head loss of consortium and love and affection are on the lower side. The first appellant was aged only 30 years at the time of death of her husband. She was having two minor children aged 4 years and one year at that time. So, there is no possibility of remarriage for the first appellant. She had lost the consortium of her husband for the remaining period of her life. In the decision reported in **Rajesh v. Rajbir Singh** (2013 (3) KLT 89 SC), the Hon'ble Supreme Court has held that in appropriate cases at least Rs.1,00,000/- has to be awarded as compensation under the head loss of consortium. But this was considered by us in the decision reported in **Valsamma v. Binu Jose** (2014 (1) KLT 10) and held that age of the deceased and the wife has to be considered for assessing the quantum of compensation under the head loss of consortium and the Hon'ble Supreme Court has not intended to award Rs. One lakh in all cases. Considering the M.A.C.A.NO.1800 OF 2011 6 fact that the deceased was aged 36 years and the first appellant was aged 30 years, we feel that the amount of Rs.10,000/- awarded by the Tribunal appears to be on the lower side and we enhance the same to Rs.60,000/-. 10. Appellants 2 and 3 were aged 4 years and one year respectively at the time of death of their father. They have lost the guidance, love and affection and of their father at the young age. Appellants 4 and 5 were aged 76 and 66 years at the time of death of their son. They have lost the support, love and affection of their son at the old age. Considering these aspects, the amount of Rs.10,000/- awarded by the Tribunal under the head loss of love and affection appears to be on the lower side and we enhance the same to Rs.40,000/-. The Tribunal has awarded only Rs.3,000/- under the head funeral expenses, which appears to be on the lower side considering the expenses incurred for meeting the funeral expenses and other religious rites to be performed and so, we are inclined to enhance the same to Rs.10,000/- from Rs.3,000/under that head. Similarly, the amounts awarded for pain and sufferings, loss of estate are also on the lower side and we enhance the same to Rs.10,000/- each under these heads. We 7 M.A.C.A.NO.1800 OF 2011 are not inclined to enhance compensation under other heads since the compensation awarded under other heads appears to be just and proper. In all, the appellants will be entitled to get an additional compensation of Rs.97,000/- over and above what has been awarded by the Tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till the date of payment. Two months' time is granted to the insurance company to deposit this amount as well, Since appellants 4 and 5 are aged persons, the additional compensation awarded shall be shared among appellants 1 to 3 equally. The amounts due to appellants 2 and 3 shall be deposited in a nationalised bank till they attain majority with liberty for the first appellant to withdraw interest accrued on that amount. 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.** cl