M.A.C.A.No.1097 of 2016 & M.A.C.A.No.1553 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938** **MACA.No. 1097 of 2016 () -------------------------** ## **AGAINST THE AWARD IN OPMV 1743/2014 of M.A.C.T.,KOTTAYAM DATED 11-02-2016** **APPELLANTS/PETITIONERS:-:** **--------------------------** ## **1. SANTHAMMA** **W/O.LATE KUNJUMON, AGED 54 YEARS, VANCHIPARAMBIL HOUSE, AYMANAM P.O., KOTTAYAM.** **2. SANTHOSH** **AGED 36 YEARS, S/O.LATE KUNJUMON, VANCHIPARAMBIL HOUSE, AYMANAM P.O., KOTTAYAM.** **3. JIJIMOL AGED 36 YEARS, D/O.LATE KUNJUMON, VANCHIPARAMBIL HOUSE, AYMANAM P.O., KOTTAYAM.** **4. SAJI AGED 28 YEARS, S/O.LATE KUNJUMON, VANCHIPARAMBIL HOUSE, AYMANAM P.O., KOTTAYAM. 5. KALYANI AGED 80 YEARS, M/O.LATE KUNJUMON, VANCHIPARAMBIL HOUSE, AYMANAM P.O., KOTTAYAM.** **BY ADVS.SRI.P.M.JOSHI SMT.SIJI K.PAUL** ## **RESPONDENT/2ND RESPONDENT:-:** **-------------------------------** **THE REGIONAL MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, ANISITHA TOWERS, 2ND FLOOR, OPP.MAHARAJA GROUNDS, M.G.ROAD, KOCHI - 682 011.** **R1 BY ADV. SRI.MATHEWS JACOB (SR.) R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SMT.PREETHY R. NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-06-2016 ALONG WITH MACA.NO.1553 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.1097 & 1553 of 2016 ....................................................... Dated this the 14[th] day of June, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** M.A.C.A.No.1097 of 2016 was filed by the claimants, while M.A.C.A.No.1553 of 2016 was filed by the second respondent insurance company in O.P.(MV)No.1743 of 2014 on the file of the Motor Accidents Claims Tribunal, Kottayam. For the purpose of convenience, we are referring to the status of the parties as claimants and the insurance company in the appeal. The claimants, who are the legal hires of deceased Kunjumon, field the application for compensation for the death of their breadwinner, who died in a motor vehicle accident occurred on 13.7.2014. According to the claimants, on that day, at about 2.15 p.m, while deceased Kunjumon was walking along the western side of the road, a goods auto rickshaw owned and driven by the first respondent came and hit against the deceased, caused severe injuries and later he succumbed to the injuries from Medical College Hospital, Kottayam, while he was undergoing treatment there on 15.7.2015 at 8.20 hours. The accident occurred due to the negligent driving of the goods auto rickshaw by the first respondent, which was insured with the second respondent. So respondents 1 and 2 are jointly and severally liable to pay the M.A.C.A.No.1097 & 1553 of 2016 2 compensation. The deceased was aged 60 years, a painter by profession and getting Rs.12,000/- per month. The claimants claimed a total compensation of Rs. 16,20,000/- on various heads but limited to Rs.8,00,000/-. 2. The first respondent entered appearance and filed a written statement admitting the accident, but denied negligence on his part. According to him, the deceased himself was responsible for the accident as he suddenly crossed the road. The vehicle was insured with the second respondent and compensation has been paid by them and he denied the age, income etc of the deceased and dependency of the petitioners. He prayed for dismissal of the application. 3. The second respondent filed a written restatement admitting the insurance of the vehicle involved in the accident. They also denied the allegation of negligence on the part of the first respondent and attributed negligence on the part of the deceased. The insurance company also contended that the vehicle has no fitness certificate and as such they are not liable to indemnify the insured. They also contended that the amount claimed is exorbitant and they prayed for dismissal of the application. 4. No oral evidence was adduced on either side. Exts. A1 to A4 were marked on the said of the claimants. No documents were marked M.A.C.A.No.1097 & 1553 of 2016 3 on the side of the respondents. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.10,17,400/- on various heads as follows: Transport to hospital : Rs.5,000/Damage to clothings : Rs.1,000/Loss of dependency : Rs.6,62,400/Pain and sufferings : Rs.20,000/Loss of love and affection : Rs.2,00,000/Funeral expenses : Rs.25,000/Loss of consortium : Rs.50,000/Loss of estate :Rs.50,000/Extra nourishment :Rs.1,000/Bystander expenses :Rs.2,000Medical expenses :Rs.1,000/-----------------Total :Rs.10,17,400/========== The tribunal also found that respondents 1 and 2 are jointly and severally liable to pay the compensation. The tribunal rejected the contention of the insurance company that they are not liable to indemnify the insured for want of fitness certificate and directed them to deposit the amount. Dissatisfied with the quantum of compensation, the claimants filed M.A.C.A.No.1097 of 2016 and aggrieved by the quantum of compensation and rejection of the contention of exoneration from liability, the insurance company filed M.A.C.A.No.1553/2016. Since both these appeals arose out of the M.A.C.A.No.1097 & 1553 of 2016 4 same award, we are disposing both the appeals by a common judgment. 5. Heard Sri.P.M. Joshy, learned counsel appearing for the claimants and Mathews Jacob, senior counsel appearing for the insurance company. 6. The counsel for the appellant submitted that the court below had only taken Rs.8,000/- as monthly income which is very low as the evidence will go to show that he is getting more than Rs.12,000/- per month. So according to the claimant, the amount awarded is very low. Further the court below had awarded only Rs.50,000/- under the head loss of consortium to the wife which is very low. He had also justifies the amount awarded under the head love and affection to the children and mother and the quantum of amount awarded under the head loss of estate. 7. On the other hand, learned counsel for the insurance company submitted that without any evidence the court below had taken Rs.8,000/- per month as the monthly income of a person aged 60 years and added 15% for future prospects. Further except the wife and mother others were not dependant and as such the tribunal was not justified in awarding huge amount as compensation under the head loss of love and affection. The amount awarded under the head loss of M.A.C.A.No.1097 & 1553 of 2016 5 estate is also on the higher side. Since the vehicle has no fitness certificate, there is violation of policy condition and as such the court below ought to have exonerated the insurance company from liability or at the most or permitted recovery of the amount from the insured under section 149(iv) of the Act. 8. As regards the contention of the insurance company that there is no fitness certificate of the vehicle, except a bare contention raised in the written statement, there is no acceptable evidence adduced on the side of the insurance company to prove this fact. Further it cannot be said to be a fundamental breach so as to go to the root of the cause of incident so as to make them exonerate from the liability as well. So under the circumstances and in the absence of any evidence adduced on the side of the insurance company to prove that there was no fitness certificate for the vehicle at the relevant time and that was the reason for the accident, then they are not entitled to get exoneration from the liability under section 149(2) of the Act. So the tribunal was perfectly justified in rejecting the contention of insurance company in this regard. We do not find any reason to interfere with the same. 9. As regards the quantum of compensation is concerned, the case of the claimants in the claim petition was that the deceased was aged 60 years and a painter by profession and getting Rs.12,000/- per M.A.C.A.No.1097 & 1553 of 2016 6 month. It is true that there was no evidence adduced on the side of the claimants to prove this fact. But considering the fact that the accident occurred in the year 2014, even assuming that a person will be getting at least Rs.400/- per day and having work for 20 days in a month, the amount of Rs.8,000/- taken by the tribunal as his monthly income cannot be said either low or excessive as claimed by both counsel. Further in the decision reported in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], up to the age of 60 years 15% of the income has to be added for future prospects. So the tribunal was perfectly justified in taking Rs.8,000/- as monthly income and adding 15% to that income as future prospects, and taking Rs.9,200/- as the amount for taking it as the multiplicand to award compensation under the head loss of dependency. It is seen from the claim petition itself that, except the mother and the wife, others cannot be said to be dependants of the deceased as they are aged 36, 34 and 28 years respectively. So the court below was perfectly justified in deducting 1/3[rd] for personal expenses and the submission made by the counsel for the appellant that, since the dependants are five in number, the court below should have deducted 1/4[th] instead of 1/3[rd] relying on the decision reported in _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121) cannot be accepted. Further no M.A.C.A.No.1097 & 1553 of 2016 7 evidence was adduced on the side of the claimants to prove that though they are majors, they were not having any employment and depending on the deceased for their livelihood as well. So under such circumstances, the court below was perfectly justified in deducting 1/3[rd] for his personal expenses and taking 9 as the multiplier as fixed for that age group in the decision reported in _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another** (supra)_ and awarding Rs.6,62,400/- under the head loss of dependency. We do not find any reason to interfere with the same. 10. The tribunal has awarded only Rs.50,000/- under the head loss of consortium to the wife of the deceased. But in the decision reported in _**Rajesh v. Rajbir Singh**_ , the Supreme Court has held that, a minimum amount of Rs.1,00,000/- will have to be awarded under the head loss of consortium. In this case, the widow was aged 54 years. She had lost the support of her better half for the remaining period of her life and there is no possibility of a re-marriage as she had three grown up children. So under the circumstances, the amount of Rs.50,000/- awarded by the tribunal under the head loss of consortium appears to be on the lower side. We enhance the same to Rs.1,00,000/-. But there is some force in the submission made by the counsel M.A.C.A.No.1097 & 1553 of 2016 8 for the insurance company that, the tribunal was not justified in awarding Rs.2,00,000/- under the head loss of love and affection and Rs.50,000/- under the head loss of estate. There is no evidence to show that the children were residing with the deceased so as to share the love and affection of the father. But at the same time, it cannot be said that they are not entitled for any amount under the head loss of love and affection, only a nominal amount can be awarded as compensation for loss of love and affection as far as the grown up children are concerned considering the age of the children mentioned in the petition. But as far as the mother is concerned, she is aged 80 years, she had lost the son at that old age and she had to live with the feelings of loss of son even during her life time. So considering these aspects, we feel that an amount of Rs.25,000/- each to the major children and Rs.50,000/- to the mother can be awarded as compensation for the love and affection. Thereby the excess amount of Rs.75,000/- awarded under the head loss of love and affection has to be deducted from the amount awarded by the tribunal. So Rs.75,000/will have to be deducted from the amount awarded by the tribunal under the head loss of love and affection to the claimants 2 to 4, as they will be entitled to get only Rs.1,25,000/- under the head. The tribunal has awarded Rs.50,000/- under the head loss of estate relying 9 M.A.C.A.No.1097 & 1553 of 2016 on the decision reported in _**Kalpana Raj and Others v. Tamilnadu State Transport Corporation**_ (2014 ACJ 1388). But that was a case where there was no guideline provided in the decision as to how compensation under the head loss of estate will have to be awarded. It is settled law, that loss of estate being considered as the amount which the deceased would have saved during his life time, which could have inherited by the the legal heirs. In this case, there is no evidence adduced on the side of the claimants to prove those facts. But in the absence of such evidence the tribunal ought to have awarded only a nominal amount under the head loss of estate. So we feel that an amount of Rs.10,000/- is sufficient under that head and thereby excess amount of Rs.40,000/- awarded under the head loss of estate has to be deducted from the total compensation awarded. We are not inclined to enhance any amount under other heads nor interfere with any amount awarded under other heads as it appears to be just and proper. If a recalculation is made on these basis and Rs.50,000/- is added towards loss of consortium and Rs.75,000/- and Rs.40,000/are deducted from the amounts awarded under the head loss of love and affection and loss of estate respectively, then an amount of Rs.65,000/- will have to be deducted from the total compensation of Rs.10,17,400/- awarded by the tribunal. If that amount is deducted, M.A.C.A.No.1097 & 1553 of 2016 10 then the claimants will be entitled to get only an amount of Rs.9,52,400/- instead of Rs.10,17,400/- awarded by the tribunal. So we are re-fixing the compensation payable to the claimants as Rs.9,52,400/-, which the second respondent insurance company is liable to pay with 9% interest from the date of petition till payment. The amount can be distributed in the ratio fixed by the tribunal among the claimants. So the appeal filed by the insurance company is allowed in part while M.A.C.A.No.1097/2015 filed by the claimants is dismissed and the amount of compensation awarded is re-fixed as stated above and rejection of the contentions of insurance company by the tribunal is confirmed and disposed of accordingly. Considering the circumstances of the case, parties are directed to bear their respective costs in both the appeals. ## **Sd/--** ## **( P.N. Ravindran, Judge)** ## **Sd/-** ## **(K. Ramakrishnan, Judge)** cl/ss /true copy/ P.S to Judge