MACA.No. 782 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938** ## **MACA.No. 782 of 2006 ( )** **------------------------AGAINST THE AWARD IN OPMV 844/2001 DATED 18.10.2005 (REVIEWED AS PER ORDER DATED 20-02-2006 IN IA NO.451/2006) ON THE FILE OF M.A.C.T., PALA.** **----------------------------------------------------------------** ## **APPELLANT(S)/APPELLANTS/PETITIONERS :** **------------------------------------------------------------------** **1. GRACY ABRAHAM, W/O.DECEASED JOSE JOSEPH, AGED 49, KUMPUNKAL HOUSE, KEZHUVANKULAM.P.O,, KOTTAYAM.** **2. RENSOY JOSE,** **AGED 24, KUMPUNKAL HOUSE,, KEZHUVANKULAM.P.O,, KOTTAYAM.** **3. ROYINS JOSE,** - **S/O.DECEASED JOSE JOSEPH,, AGED 19, (MENTALLY RETARDED PERSON),, KUMPUNKAL HOUSE, REPRESENTED BY FIRST APPELLANT,, (WHO IS THE MOTHER, NEXT FRIEND AND GUARDIAN).** **BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA** ## **RESPONDENT(S) :** **----------------------------** ## **1. MR.T.K.CHACKO, MAROTTICHUVATTIL HOUSE,, KAKKOOTTUMALA, ERAVIMANGALAM.** **2. WHILSON, S/O.VARKEY,** **KOCHUPUNCHAYIL HOUSE,, POOZHIKOL, KADUTHURUTHY.** **3. THE ORIENTAL INSURANCE CO. LTD.,** **TRIO CHAMBERS, KANJIKUZHY,, KOTTAYAM.** **R1 BY ADV. SRI.M.K.CHANDRA MOHANDAS R1 BY ADV. SRI.SHAKTHI PRAKASH R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** K.SURENDRA MOHAN & MARY JOSEPH, JJ. ------------------------------------------ M.A.C.A. No.782 of 2006 ------------------------------------------ Dated this the 19[th] day of May, 2016 ## JUDGMENT ## MARY JOSEPH, J. Appellants are the legal heirs of one Joseph, who died in a motor accident occurred on 17.08.2001. The captioned appeal is filed seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Pala (for short 'the Tribunal') in O.P.(MV)No.844/2001 in their favour for the loss sustained by them due to the death of Joseph, who is none other than the spouse of the 1[st] appellant and the father of the 2[nd] and 3[rd] appellants. 2. The facts necessary for the disposal of this appeal are as follows:- On 18.08.2001 at about 5 p.m. while Mr.Joseph was walking through the side of Cherpunkal Holy Cross Church M.A.C.A. No.782 of 2006 - 2- road, a bus bearing Reg.No.KL-5B/1161 driven by the 2[nd] respondent in a rash and negligent manner knocked him down. Consequently he sustained serious injuries and was taken to Medical College Hospital, Kottayam. He succumbed to the injuries at about 7 p.m. on the same day. The appellants claimed that the deceased was an Ayurvedic Physician and a member of Kerala Ayurveda Paramparya Vaidya Federation. Claim petition was preferred as O.P.(MV) No.844/2001 before the Tribunal seeking a compensation of Rs.5 lakhs. On appreciation of the oral evidence of the Doctor who has issued Ext.A9 disability certificate as PW1 and documentary evidence consisting of Exts.A1 to A12 produced by the appellants and the oral evidence of RW1 and the documentary evidence as Exts.B1 to B5, produced by the respondents, the Tribunal arrived at a total compensation of Rs.3,01,250/- with interest at the rate of 7.5% per annum from 20.10.2001, the date of the claim petition till realisation M.A.C.A. No.782 of 2006 - 3- and cost of Rs.7,500/-. The third respondent was directed to deposit the same in favour of the appellants and was allowed to recover the amount from the first respondent for the reason of the established factum that the second respondent did not possess a valid driving licence at the relevant time. On account of an error that had crept in while computing the compensation, the award was reviewed at the instance of the first respondent as per order dated 20.02.2006 in I.A.No.451/06. Accordingly, the compensation awarded originally was modified and reduced to Rs.2,13,250/- with interest at the rate of 7.5% per annum from the date of the claim petition till realisation and cost of Rs.5,325/-. The entitlement of the third respondent to get the sum of compensation recovered from the first respondent after depositing the same in favour of the appellants was retained. Dissatisfied with the quantum of compensation so awarded by the Tribunal this appeal was preferred. M.A.C.A. No.782 of 2006 - 4- 3. Sri.C.M.Tomy, the learned counsel appearing for the appellants as well as Sri.Mathews Jacob, the learned Senior counsel appearing for the respondents were heard. The impugned award is also perused. 4. The contention of the learned counsel for the appellant was that the Tribunal has awarded only a meagre sum under various heads of claim. It is contended that the deceased was earning Rs.6,000/- from his profession as an Ayurvedic Practitioner. Ext.A1 certificate issued from KNT Chikilsalayam, Panakkapalli was produced and its proprietor was examined before the Tribunal as PW1. PW1 had stated in the box that the deceased was given Rs.150/- per day. His evidence unveiled the fact that the deceased did not work on all days in a month. In view of the conflict in the oral as well as documentary evidence, the Tribunal was constrained to fix Rs.2,000/- notionally as the monthly income. According to the learned counsel, the Tribunal is highly unjustified in doing M.A.C.A. No.782 of 2006 - 5- so and interference is warranted. It is further contended by the learned counsel that Rs.10,000/- awarded by the Tribunal towards pain and suffering is on the lower side. According to him, the accident was on 17.08.2001 and the victim of the accident died after hours and reasonable compensation for pain and suffering shall not be denied by the Tribunal to the appellants. The victim remained alive for some time before succumbing to the injuries and therefore, he must have suffered excruciating pain and for his sufferings the appellants need to be compensated. Materials disclosing the nature of the injuries and the duration for which he was alive after the accident were not available before the Tribunal. 5. It is also the contention of the learned counsel that the Tribunal was unjustified in granting Rs.1,000/- only under the head transportation expenses. According to him, the Tribunal ought to have granted a sum of Rs.5,000/- under the said head. It is submitted that the appellants 2 and 3, the M.A.C.A. No.782 of 2006 - 6- children of the deceased lost their father at their age of minority, and thereby they were deprived of the fatherly love, affection and care. The learned counsel invited our attention to the factum of mental retardation of the third appellant and urged this Court to intervene in the matter to see whether reasonable compensation has been awarded under the head loss of love and affection. Yet another aspect to which our attention was drawn was the meagreness in the quantum of compensation awarded under the head loss of consortium. According to the learned counsel, the Tribunal has awarded Rs.10,000/- each under the heads loss of love and affection and loss of consortium and those are on the lower side warranting reconsideration in the light of the dictum laid down by the Apex Court in Rajesh v. Rajbir Singh [2013 (3) KLT 89]. Arguments have also been advanced by the learned counsel based on the compensation awarded by the Tribunal under the heads loss of dependency and funeral expenses. According to M.A.C.A. No.782 of 2006 - 7- him, the compensation for loss of dependency was arrived at by the Tribunal without appreciating the factors relevant for determination of those. It is contended by the learned counsel that the Tribunal overlooked the dictum laid down by the Apex Court in Rajesh's case (supra) while declining to grant adequate compensation under the head funeral expenses. The learned counsel concluded his arguments stating that the Tribunal failed to award just and reasonable compensation to the appellants as envisaged under the Motor Vehicles Act, 1988. 6. Sri.Mathews Jacob, the learned Senior counsel representing the third respondent has submitted on the contrary that the amount of compensation awarded by the Tribunal under each head of claim is adequate and reasonable and interference of this Court is uncalled for. The learned counsel for the third respondent has also urged that the decision in Rajesh's case (supra) cannot be applied in the M.A.C.A. No.782 of 2006 - 8- case on hand since the cause of action based on which the claim petition in question was filed, had arisen in the year 2001 and the dictum was laid down by the Apex Court in the year 2013. 8. The submission of the learned counsel for the respondents is liable to be discarded as untenable for the reason that the proceedings in the case on hand was pending before this court since 2006 onwards. The decision in Rajesh's case (supra) was rendered in the year 2013 and indisputably the dictum can be applied to the case on hand. 9. Going by the impugned award, it is seen that the Tribunal has taken the monthly income of the deceased as Rs.2,000/-. The reasoning of the Tribunal in doing so as revealed from the impugned award was that Ext.A1, the certificate allegedly issued by the employer of the deceased was not properly proved through the employer, who was examined as PW1. The Tribunal found contradictions in the M.A.C.A. No.782 of 2006 - 9- testimony of PW1 and in the contents of Ext.A1, allegedly issued by PW1 and accordingly arrived at the conclusion that the appellants failed to prove the monthly income earned by the deceased at the relevant time. 10. We have no hesitation to hold that the Tribunal has erred in considering Rs.2,000/- as the monthly income of the deceased in view of the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd [(2011)13 SCC 236]. The Apex Court in the said case even without any evidence being let in by the victim of the accident, considered him as a coolie worker, and adopted Rs.4,500/- as his monthly income for the purpose of computation of compensation. The accident in that case had occurred in the year 2004, whereas, the claim petition in question related to a motor accident that occurred in the year 2001. In the case on hand also, materials were available, but those were discarded by the Tribunal due to its inconsistency. In the said M.A.C.A. No.782 of 2006 - 10- circumstances, in view of the dictum, even in the absence of any reliable evidence forthcoming in the matter, it is appropriate to consider Rs.4,000/- as the monthly income and we are inclined to take so. Based on the dictum in Rajesh's case (supra), 15% addition to the income so taken in consideration of his future prospects and 1/3[rd] deduction therefrom in consideration of his personal expenses, ought to have been made in the case on hand. If computation is done in the manner, the multiplicand for the purpose of calculation of compensation would be Rs.3067/-. The multiplier has been properly adopted as 11, in view of the dictum of the Apex Court in Sarala Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]. When calculation is done with the multiplicand factor as Rs.3067/- and the multiplier factor as 11, the compensation payable to the appellants under the head loss of dependency would come to Rs.4,04,844/-. The Tribunal has already awarded Rs.1,76,000/- and the same M.A.C.A. No.782 of 2006 - 11- when deducted from the amount arrived at now the appellants would get Rs.2,28,844/- additionally. 10. On a perusal of the impugned award, we find force in the argument of the learned counsel for the appellants, regarding the meagreness of the sum awarded as compensation under various other heads. On a reappraisal of the evidence on record in the backdrop of Rajesh's case (supra), we see substance in the contentions raised by the learned counsel during the course of his argument. Indisputably, the compensation awarded under various heads is on the lower side and we are inclined to modify the same on the basis of the settled position of law laid down by the Apex Court in Rajesh's case (supra) and also the evidence on record. The Apex Court has observed in Rajesh's case (supra) that compensation for loss of love and affection in the case of death of a spouse, shall at least be Rs.1,00,000/-. Therefore, it follows therefrom that the compensation towards loss of M.A.C.A. No.782 of 2006 - 12- consortium shall not be less than Rs.1,00,000/-. 11. The Apex court in the cited decision has considered Rs.1,00,000/- as compensation towards loss of love and affection based on the fact that the deceased was survived by two children, who are minors. The Apex Court has also laid down the dictum in the said case that the compensation for funeral expenses shall not be less than a sum of Rs.25,000/- in the absence of evidence supportive of expenditure of a higher sum. 12. The finding of the Apex Court in Rajesh's case (supra) can safely be imported into the case on hand. The deceased in the case on hand was survived by his wife, daughter and a minor son, aged 15 years at the time of death of his father. Therefore, in our considered opinion, Rs.1,00,000/- would be the reasonable sum payable as compensation under the head loss of love and affection. The Tribunal has already awarded Rs.10,000/- under the head and M.A.C.A. No.782 of 2006 - 13therefore, the appellants would get Rs.90,000/- additionally. 13. As revealed from the impugned award, the first appellant, the spouse of the deceased was aged 45 years. Therefore, in view of the dictum in Rajesh's case (supra), she is entitled to get Rs.1,00,000/- as compensation under the head loss of consortium and we are inclined to award that in her favour. Rs.10,000/- having already been awarded by the Tribunal, the first appellant now would get Rs.90,000/additionally under the said head. It is revealed from an appraisal of the evidence on record that no materials were placed by the appellants before the Tribunal in evidence to substantiate expenditure of a higher sum for funeral. In the said circumstances, in view of the dictum in Rajesh's case (supra), the appellants are entitled to get Rs.25,000/- under the head funeral expenses. It is pertinent to notice from the impugned award that the Tribunal has awarded only Rs.5,000/- under that head and therefore, in view of the M.A.C.A. No.782 of 2006 - 14- modification by us, the appellants would get Rs.20,000/additionally. The accident having occurred in the year 2001, we see no reason to enhance the compensation for transportation expenses from Rs.1,000/- and the claim for interference is discarded. 14. We are convinced from the description of the Tribunal in the impugned award that the deceased breathed his last few hours after the accident. Indisputably, he must have sustained fatal injuries and suffered excruciating pain during the hours for which he was alive. Materials were not placed before the Tribunal to show the exact duration for which he was alive. In the said circumstances, the Tribunal is justified in awarding Rs.10,000/- towards pain and suffering and there is absolutely no scope for any interference. In the computation as aforesaid, the appellants are entitled to get Rs.4,28,844/- rounded off to Rs.4,29,000/-. In the result, this MACA is allowed. The M.A.C.A. No.782 of 2006 - 15- compensation awarded by the Tribunal as per the impugned award is enhanced to Rs.4,29,000/-(Rupees Four Lakh Twenty Nine thousand only). The said amount would carry interest at the rate of 8% per annum from the date of the claim petition till realisation. The third respondent shall deposit the enhanced sum with interest at the rate as aforesaid within a period of two months from the date of receipt of a copy of this judgment. In case of any default, the appellants would be entitled to get interest at the rate of 9% per annum from the date of the claim petition till realisation. The third respondent is entitled to get the amount deposited by it recovered from the first respondent. Parties shall bear their respective costs. On the amount being deposited by the 3[rd] respondent, a sum of Rs.1,50,000/- shall be kept in Fixed Deposit in the name of 3[rd] appellant, the mentally retarded son of the deceased in a Nationalised bank with liberty to the 1[st] appellant to withdrew the interest for meeting the expenses relating to the former. M.A.C.A. No.782 of 2006 - 16- The remaining sum (excluding Rs.90,000/- awarded in favour of the first appellant as compensation for loss of consortium) shall be disbursed to appellants 1 and 2 in equal proportion. Sd/K.SURENDRA MOHAN , JUDGE vs Sd/MARY JOSEPH, JUDGE /TRUE COPY/ PA TO JUDGE