M.A.C.A.No.549 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M.C. Hari Rani
K.M. Joseph
Judgment Date: 2011-08-29
Court Decision / Holding: Appeal allowed in part. The appellants are entitled to a further ₹1,19,850 in addition to the Tribunal’s award. Interest shall be payable on the entire enhanced amount as per Tribunal rates, with the rider that the enhanced amount shall not bear interest for 2378 days (delay in filing the appeal). All other directions of the Tribunal are upheld.
Final Disposition: Appeal allowed in part; enhanced compensation and specified heads adjusted; interest on enhanced amount per tribunal rates; other tribunal directions upheld.

Parties to the Case

Appellants / Petitioners

Nani (mother of the deceased)
Saraswathy (wife)
Ivine (son)
Friyanka (daughter)
Nikil (son)

Respondents

Thilakan
Basheer Ahamed
The Branch Manager, National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Pratheesh P.

Counsels for Respondents

• Sri. M.A. George

Case Synopsis & Summary

This is a motor accident claims appeal filed under the Motor Vehicles Act by the wife, mother, and three minor children of the deceased who died in a road accident on 06/02/1995. The MACT Kollam tribunal awarded ₹1,78,400 for various heads of compensation including pain and suffering, funeral expenses, loss of consortium, and loss of dependency, with a total tally of ₹1,78,400. The appellants challenged the adequacy of compensation, contending that the tribunal erred in fixing the monthly income of the deceased at ₹1,800 and that six dependents warranted a higher income. They drew on clause 6 of the second schedule to invoke a presumption that a non-earning person might have earned ₹1,250 per month, and argued for a higher figure of ₹2,250 per month. They also argued deduction of personal expenses should be 1/4 (per Sarla Verma v. D.T.C.), and that the multiplier should be at least 13 given the deceased’s age. The appellants further argued for higher awards under loss of consortium and for love and affection. The High Court, allowing the appeal in part, held the income should be ₹2,250 per month, adopted the presumption of prudence, applied a 1/4 deduction, and increased the multiplier; it awarded an additional ₹1,19,850 for loss of consortium, love and affection, and dependency, with interest on the enhanced amount per tribunal rules and other tribunal directions upheld.

Provisions of Law Cited

Second Schedule, Clause 6

Legal Doctrines & Maxims

Presumption of prudence under Clause 6 of the Second Schedule (1994) allowing inference of an earning capacity for a non-earning person
Sarla Verma v. D.T.C (2009) 6 SCC 121 – deduction of personal expenses from income (1/4)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the tribunal erred in fixing the deceased’s monthly income at ₹1,800 despite six dependents. They urged reliance on Clause 6 of the Second Schedule to presume income of ₹1,250 per month for a person like the deceased and contended the actual monthly income should be ₹2,250. They claimed the tribunal erred by deducting 1/3 for personal expenses instead of 1/4 per Sarla Verma and argued the multiplier should be at least 13 (45–50 age group). They pressed for higher awards for loss of consortium and for loss of love and affection for all dependents.

Contentions of Respondents

The respondents contended that the tribunal’s compensation was adequate and the challenge was on just the ground of inadequacy of compensation; they argued to retain the original award and opposed enhancements, maintaining the established deductions and multiplier as per prevailing norms.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. D.T.C.	(2009) 6 SCC 121	Positive	Court relies on the presumption of prudence and on the Sarla Verma principle to allow a 1/4 deduction for personal expenses and to adjust income calculations.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 MACA.No. 549 of 2008() ---------------------O.P.(MV) NO.1257/1995 OF MACT KOLLAM APPELLANTS: APPELLANTS/PETITIONERS ---------------------------------- 1. NANI, M/O.DECEASED SADANANDAN, VIKKARAMTHARA, PUTHENTHURA P.O., NEENDAKARA, KOLLAM DISTRICT (DIED). 2. SARASWATHY, W/O.LATE SADANANDAN, VIKKARAMTHARA, PUTHENTHURA P.O., NEENDAKARA, KOLLAM DISTRICT. 3. IVINE, S/O.LATE SADANANDAN, VIKKARAMTHARA, PUTHENTHURA P.O., NEENDAKARA, KOLLAM DISTRICT. 4. FRIYANKA, D/O.LATE SADANANDAN, VIKKARAMTHARA, PUTHENTHURA P.O., NEENDAKARA, KOLLAM DISTRICT. 5. NIKIL, S/O.LATE SADANANDAN, VIKKARAMTHARA, PUTHENTHURA P.O., NEENDAKARA, KOLLAM DISTRICT. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): RESPONDENTS -------------------------- 1. THILAKAN, VELIYIL VEEDU, PALLIPPURAM, CHERTHALA, ALAPPUZHA. 2. BASHEER AHAMMED, LAPPENIL HOUSE, ALISSERY WARD, ALAPPUZHA. 3. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., ALAPPUZHA. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON 29/08/2011 PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.549 of 2008 ---------------------------------------Dated this the 29[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimants are the appellants. They are wife and three minor children of the deceased. The deceased suffered injuries and succumbed to such injuries in a motor accident which took place on 06/02/1995. They staked the claim along with the mother of the deceased who is said to be no more now. The deceased was a driver by profession. The tribunal awarded only a total amount of Rs.1,78,400/- as per details which are given in paragraph 9 of the impugned award which we extract below: |1.|Pain and suffering|Rs.5,000/-| |---|---|---| |2.|Funeral expenses & transportation|Rs.5,000/-| ||charges|| |3.|loss of consortium of the|Rs.5,000/-| ||1stpetitioner|| |4.|loss of dependency of the<br>|Rs.1,58,400/-| ||petitioners|| ||(Rs.1,800 x 2/3 x 12 x 11)|| 2 M.A.C.A.No.549 of 2008 5. Loss of estate ## **Total** Rs.5,000/------------------------ ## **Rs.1,78,400/-** ========== 2. The challenge is raised only on the ground of inadequacy of compensation. Called upon to explain and be specific, the learned counsel for the appellants first of all contends that the monthly income of the deceased taken into reckoning by the tribunal (Rs.1,800/-) is grossly inadequate. The deceased was a driver by profession and the indications available suggest that his nuclear family consists of wife and three minor children in addition to his mother. The tribunal ought to have taken note of the fact that six souls were depending upon such income earned by the deceased to keep body and soul together. In these circumstances, the tribunal erred grossly in reckoning the monthly income as Rs.1,800/-, contends the learned counsel for the claimants. 3. We find merit in the challenge raised. We are satisfied that in any view of the matter Rs.2,250/- could safely have been reckoned as the monthly income of the deceased. In coming to this conclusion, we do note that the deceased was having wife, mother and three minor children depending on him 3 M.A.C.A.No.549 of 2008 in 1995 - at the time of the accident. We take note of the presumption of prudence available in clause 6 of the second schedule which from 1994 permits the courts to draw inference that even a non-earning person must have been earning an income of Rs.1,250/- per month. The deceased, without any dispute, was a driver and was employed as such at the time of the accident. 4. The learned counsel for the appellants then contends that the tribunal erred in deducting 1/3[rd] of such meagre income towards the personal expenses of the deceased. Even going by **Sarla Verma v. D.T.C [(2009)6 SCC 121]** , only 1/4 can be deducted towards the personal expenses of the deceased, contends the counsel. We agree. The learned counsel for the appellants then points out that the tribunal has erred in reckoning the multiplier as 11 only. The deceased is shown to be a person aged 45 years. We reckon him as belonging to the age group of 45-50 years. Even then the multiplier ought to have been taken as not less than 13. To this extent, challenge on this ground also succeeds. 4 M.A.C.A.No.549 of 2008 5. The learned counsel for the appellants finally contends that the amount awarded under the head of loss of consortium is grossly inadequate. The deceased was a person aged about 45 years and the second claimant/wife was aged 36 years. Only an amount of Rs.5,000/- has been awarded as compensation. This is inadequate, contends counsel. We agree with the counsel. 6. No amount is seen awarded under the head of loss of love and affection for the wife, three children and deceased mother. We are in agreement with the learned counsel for the appellants that appropriate amount ought to have been awarded under the head of loss of love and affection. 7. We are not satisfied that the amount awarded under any other head warrants/deserves modification/enhancement. 8. The above discussions lead us to the conclusion that the claimants are entitled to a further amount of Rs.1,19,850/- in addition to the amount already awarded by the tribunal. i) Loss of consortium Rs.5,000/(Rs.10,000/- minus Rs.5,000/ii) Loss of love and affection Rs.10,000/(no amount awarded by their tribunal) 5 M.A.C.A.No.549 of 2008 iii) Loss of dependency Rs.1,04,850/[Rs.2,63,250/- (Rs.2,250/- x 12 x 13 x 3/4) minus Rs.1,58,400/-] -------------------Total **Rs.1,19,850 ========** 9. In the result, - a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of Rs.1,19,850/- (Rupees one lakh nineteen thousand eight hundred and fifty only) in addition to the amount already awarded by the Tribunal. c) We make it clear that interest shall be payable on the entire amount of compensation at the rate and for the period specified by the tribunal subject to the rider that the enhanced amount shall not carry interest for 2378 days that is the period of delay in filing the appeal. - d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.549 of 2008 6 M.A.C.A.No.549 of 2008 7 8 M.A.C.A.No.549 of 2008 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010