MACA.No.1838 of 2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938 MACA.No. 1838 of 2016 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.593/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY DATED 19-09-2014 APPELLANTS/PETITIONERS 1 & 3 TO 8: ------------------------------------------ 1. K.V.RAJEEVAN, S/O. DEVIKUTTY, AGED 52 YEARS, POURNAMI, IRINAVU P.O., IRINAVU KANNUR. 2. K.V. SAJITHA, D/O. DEVIKUTTY, AGED 48 YEARS, POURNAMI, IRINAVU, P.O., IRINAVU, KANNUR. 3. K.V PREETHA, D/O. DEVIKUTTY, AGED 46 YEARS, POURNAMI, IRINAVU, P.O., IRINAVU, KANNUR. 4. K.V PRAMOD, S/O. DEVIKUTTY, AGED 44 YEARS, POURNAMI, IRINAVU. P.O., IRINAVU, KANNUR. 5. K. SARITHA, W/O. K.V. PRADEEPAN, AGED 42 YEARS. PONMALAM, KUTTAMATH, CHERUVATHUR, KANNUR DISTRICT. 6. KARTHIKA PRADEEPAN, D/O. K.V. PRADEEPAN, AGED 21 YEARS, PONMALAM, KUTTAMATH, CHERUVATHUR, KANNUR DISTRICT 7. DEEPIKA PRADEEP, D/O. K.V. PRADEEPAN, AGED 18 YEARS, PONMALAM, KUTTAMATH, CHERUVATHUR, KANNUR DISTRICT BY ADV. SRI.M.V.AMARESAN ## RESPONDENT/RESPONDENT NO.3: ------------------------------------- UNITED INDIA INSURANCE COMPANY LTD. CHEROOTTI ROAD, CALICUT, PIN-673 001. BY ADV. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------M.A.C.A.No.1838 of 2016 ------------------------------------Dated 26[th] October, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment and award in O.P.(M.V)No.593 of 2008 passed by the Motor Accidents Claims Tribunal, Thalassery. The claim petition was originally filed by the children of one Devikutty who died in a motor vehicle accident at the age of 70 years. On 11.4.2006 she along with children were travelling in an Omni Van bearing Reg.No.KL-13M/9538 from Guruvayoor to Kannur. When the van reached Azhinilam a mini lorry bearing Reg.No.KL-10J/6127 came from a pocket road and dashed against their vehicle. Devikutty sustained injuries and immediately she was taken to hospital. She remained as an inpatient for 21 days and then succumbed to the injuries sustained in the accident. It is in the said circumstances that her children filed the above mentioned claim petition under Section 166 of the Motor Vehicles Act claiming a compensation of ₹ 10 lakhs for her death. During the pendency of the claim petition the 2[nd] petitioner K.V.Pradeepan, who was one among the children of the deceased, died and consequently his children were impleaded as M.A.C.A.No.1838/2016 2 supplemental petitioners 6 to 8. The Tribunal granted a total compensation of 4,93,200/- as against a claim of 10,00,000/-. As₹ ₹ noticed hereinbefore, it is aggrieved by and dissatisfied with the quantum of compensation granted by the Tribunal that the captioned appeal has been preferred seeking for its enhancement. 2. The rival contentions advanced before us would reveal that there is absolutely no dispute regarding the accident, cause of the accident as also the insurance coverage of the offending vehicle. In other words, the respondent insurance company is not disputing the liability to indemnify the insured owner of the offending vehicle. In such circumstances, we are of the view that this appeal can be considered on merits at the admission stage itself. 3. We have heard the learned counsel for the appellants and also the learned counsel appearing for the respondent. 4. The main contention of the learned counsel for the appellants is that the Tribunal ignored the specific averments in the claim petition to the effect that the deceased was a pensioner and she was getting more than 10,000/- towards pension. In support of the₹ M.A.C.A.No.1838/2016 3 said contention the appellants had produced Exts.A17 and A18 pension books. Without assigning any specific reason the Tribunal ignored the specific averments as also the documentary evidence in Exts.A17 and A18 and fixed the monthly income notionally treating the deceased only as a house wife and fixed the monthly income of the deceased notionally at 3,500/-, it is contended. The learned counsel in such₹ circumstances submitted that it is the erroneous fixation of the monthly income that deprived the appellants just compensation. It is the further contention that the Tribunal ought not to have deducted ¼ of the income towards personal expenses of the deceased while computing the compensation for loss of dependency. It is also contended that the Tribunal ought to have treated all the petitioners and the children of the deceased 2[nd] petitioner also as dependents of the deceased Devikutty. In such circumstances, it is the submission that only 1/5[th] of the income ought to have been deducted instead of ¼. The learned counsel also submitted that the Tribunal granted only meagre amounts under the heads `pain and suffering', `loss of love and affection', `loss of estate', `funeral expenses' etc. Per contra, the learned counsel appearing for the respondent submitted that taking into account the fact that the deceased was aged 70 years at the time of death the Tribunal cannot be found fault with in fixing the monthly income notionally that too, at M.A.C.A.No.1838/2016 4 ₹ 3,500/- treating the deceased as a house wife. The further contention is that the Tribunal went wrong in treating the claimants as dependents of the deceased as it is discernible from the claim petition itself that all the claimants were grown up persons and in fact, the youngest among the original applicants was aged 36 years. It is contended that the contention of the appellants that the grandchildren of the deceased were also ought to have been treated as dependents of the deceased is devoid of any merit in view of the fact that at the time of death of Devikutty their father viz., K.V.Pradeepan was very much alive. It is also contended that a perusal of the schedule of compensation given in the impugned award itself would reveal that adequate compensation has been granted under all heads. In short, it is the contention of the respondent that no appellate interference is called for. 5. We will firstly consider the question whether the Tribunal erred in fixing the monthly income of the deceased for calculating compensation payable under the head `loss of dependency'. Needless to say that for considering the said question it is essential to consider the question whether all the claimants could be treated as dependents of the deceased Devikutty. A scanning of the impugned award would reveal that the Tribunal treated the deceased only as a house wife. The M.A.C.A.No.1838/2016 5 said fact is very much discernible from paragraph 15 of the impugned award. The Tribunal found that the deceased was a house wife and she was not earning anything. The said finding of the Tribunal is certainly against the weight of the evidence. It is specifically averred in the claim petition that the deceased was a pensioner. Evidently, to establish such a contention the appellants have produced Exts.A17 and A18. They would go to show that she was getting a pension of ₹ 10,323/- per month. When the deceased was a pensioner and that fact is evident from Exts.A17 and A18 the Tribunal should not have ignored the said aspects borne out from record and assumed that the deceased was only a house wife and was a non-earning person. When a finding was entered without duly considering the evidence on record and against the weight of evidence it can be treated only as a perverse finding. In the light of Exts.A17 and A18 the Tribunal erred in fixing the monthly income notionally. In fact, the income ought to have been fixed taking into consideration of Exts.A17 and A18. As noticed hereinbefore, Exts.A17 and A18 would reveal that the deceased was getting a monthly pension of 10,323/-. ₹ 6. Now, the question to be decided is whether the claimants could be treated as dependents and whether they are entitled to take M.A.C.A.No.1838/2016 6 up the contention that the entire income of the deceased Devikutty ought to have bee taken for fixing the multiplicand for calculating compensation payable under the head `loss of dependency'. As noticed hereinbefore, at the time of death of Devikutty the original applicants 1 to 5 were all grown up persons and the eldest among them was then aged 44 years and the youngest was aged 36 years. In such circumstances, it cannot be said that the original applicants who are none other than the grown up children of the deceased Devikutty were actually depending upon Devikutty who was then aged 70 years for their livelihood. In other words, they were being maintained by Devikutty. Supplemental petitioners 6 to 8 are the children of the 2[nd] petitioner in the claim petition who was also a son of the deceased Devikutty. He died during the pendency of the claim petition. Indisputably, at the time of death of Devikutty Pradeepan was very much alive and it is a fact that he was one among the applicants who filed the above mentioned claim petition seeking compensation for the death of Devikutty. Pradeepan was the husband of the 6[th] supplemental petitioner and the father of supplemental petitioners 7 and 8. When he was very much alive at the time of death of Devikutty, by no stretch of imagination it could be said that they were depending upon Devikutty. In other words, there is absolutely no merit in the contention that they M.A.C.A.No.1838/2016 7 should have been treated as dependents of deceased Devikutty. But, at the same time, while considering the entitlement of the claimants to receive compensation under the head `loss of dependency' another factor has to be looked into. It is not uncommon in our society that aged ladies are working for the family. In this case, it is very much evident from the evidence on record that she was getting pension and that too a handsome amount of 10,323/- even at the age of 70 years.₹ There is no reason to believe that she was not contributing anything from the said income to the family. In other words, it can be safely presume that she was contributing to the family and the family was pulling on with the contribution of the deceased Devikutty. But, at the same time, taking into account the fact that the children were aged between 36 and 44 years at the time of the accident it cannot be said that the entire income being received by Devikutty was being contributed to the family. We are of the view that taking into account the age of the children of deceased Devikutty it cannot be said that they were dependents of the deceased or they are depending upon the deceased Devikutty. But, at the same time, as noticed hereinbefore, it is a fact that the family was also getting some contribution from deceased Devikutty. But, at the same time, when it is evident that the children of Devikutty were having their own family none of them can M.A.C.A.No.1838/2016 8 claim that the entire amount was reaching their family. We are of the view that, in the peculiar circumstances obtained in this case, it is only plausible to presume that 50% from the income of the deceased could have been contributed to the family. 7. At the age of 70 years, certainly, a person would be requiring some amount to meet her personal expenses. Therefore, for the calculation purpose we are of the view that it is only just and proper to take half of the monthly pension that is, ½ of 10,323/- viz.,₹ ₹ 5,161/-. There is no dispute regarding the multiplier applicable in this case with reference to the age of the deceased it was rightly identified by the Tribunal. In such circumstances, with the modified monthly income the amount payable towards `loss of dependency' has to be reassessed. Upon such re-assessment, the amount payable would become ₹ 3,09,720/-. The Tribunal has already granted 1,57,500/-. After₹ deducting the said amount the appellants are entitled to get an amount of 1,52,220/- additionally under that head. Since we have deducted₹ 50% of the income from the total income which the deceased was getting through pension, we are of the view that it is only reasonable to grant compensation for `loss of estate' as she would be earning from the pension which she was getting. The Tribunal granted only M.A.C.A.No.1838/2016 9 ₹ 25,000/- towards `loss of estate'. We are inclined to grant ₹ 10,000/- more under that head. It is awarded. Towards `funeral expenses' the Tribunal granted only 20,000/-. In the light of the₹ decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh (2013 (3) KLT 89(SC))** in the absence of evidence of higher expenses a minimum of 25,000/- should be granted towards funeral expenses.₹ In such circumstances, 5,000/- is granted additionally under that₹ head. It is evident from records that though the accident occurred on 11.4.2006 Devikutty died only after about 21 days, precisely she died only on 2.5.2006. In such circumstances, it is evident that she must have had the services of a bystander and some expenses might have been incurred for giving nutrient food to the deceased during the period of hospitalisation. In such circumstances, we are inclined to grant an amount of ₹ 5,000/- under the combined head of `bystander's expenses and extra nourishment'. Though the learned counsel for the appellants contended that the appellants are entitled to 1,00,000/-₹ each towards `loss of love and affection' we are of the considered view that the said contention cannot be sustained. The learned counsel relied on a decision of the Hon'ble Apex Court in **Surti Gupta** v. **United India Insurance Co. Ltd. (2015 ACJ 1755)** in support of such contention. Evidently, such decision was rendered relying on the M.A.C.A.No.1838/2016 10 decision in **Rajesh's** case (supra). In **Rajesh's** case (supra) the Apex Court did not laid down any dictum regarding the `loss of love and affection'. A scanning of the said decision would reveal that in that case, taking note of the fact that among the surviving legal heirs there were two minor children they were granted a total compensation of ₹ 1,00,000/- towards `loss of love and affection'. In this case, as noticed hereinbefore, all the original claimants were aged between 44 and 46 and they were given 5,000/- each towards `loss of love and₹ affection'. In such circumstances, we do not find any reason to interfere with the same. As regards supplemental petitioners 6 to 8, they cannot claim separate compensation under that head and they would be entitled only to get the share of the 2[nd] original applicant viz., K.V.Pradeepan. In such circumstances, we do not find any reason to interfere with the compensation awarded under the head `loss of love and affection'. 8. In the light of the discussion as above, the appellants would be entitled to get an additional compensation of 1,72,220/-. It₹ is awarded. The additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent is directed to deposit the amount within a period of two M.A.C.A.No.1838/2016 11 months from the date of receipt of a copy of this judgment. The additional compensation shall be apportioned between the claimants in the same ratio as fixed by the Tribunal. 9. The appeal was filed along with an application to condone the delay of 188 days. In C.M.Appl.No.2181 of 2016 this Court passed an order on 8.9.2016 while condoning the delay that the appellants would not be entitle to get interest for 188 days, in case enhancement of compensation is ultimately granted. In such circumstances, it is made clear that the appellants would not be entitled to get interest for 188 days. The appeal is disposed of as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS