Madhavi and others v. Sulaiman S., G.D. Martine and The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** ## **MACA.No. 2385 of 2012** **AGAINST THE AWARD IN OPMV 1586/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR DATED 11-04-2012** ## **APPELLANT/S:** - **1 MADHAVI, W/O.LATE NARAYANAN AGED 78 YEARS CHATHANATTIKKEL HOUSE, CHETHICODE.P.O., ERNAKULAM DISTRICT.** - **2 BEENA SANTHOSH AGED 30 YEARS W/O.LATE SANTHOSH, CHATHANATTIKKEL HOUSE, CHETHICODE.P.O., ERNAKULAM DISTRICT.** **3 SOURAV.C.SANTHOSH MINOR AGED 7 ½ YEARS S/O.LATE SANTHOSH, CHATHANATTIKKEL HOUSE, CHETHICODE.P.O., ERNAKULAM DISTRICT, REP. BY HIS MOTHER AND NEXT FRIEND BEENA SANTHOSH, W/O.LATE SANTHOSH, CHATHANATTIKKEL HOUSE, CHETHICODE.P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.ABRAHAM K.JOHN SMT.C.G.ARUNDHATHI** ## **RESPONDENT/S:** - **1 SULAIMAN S., S/O.SIDHIQUE KOZHIKKAL HOUSE, TARUR P.O., PALAKKADU DISTRICT, PIN-678547 (DRIVER)** - **2 G.D.MARTINE S/O.DEVASIKUTTY, GOPURATHINKAL HOUSE, ANKAMALY SOUTH P.O., PIN-683572 (OWNER)** - **3 THE NATIONAL INSURANCE COMPANY LTD. ALUVA BRANCH, URUMBATH BUILDING, PUMP JUNCTION, ALUVA, PIN-683101 (INSURER)** **R BY SRI LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2385 of 2012 2** ## **JUDGMENT** The appeal arises from an award in the claim petition filed by the legal heirs of a person who died in a road traffic accident. The deceased was driving his own autorickshaw, when on 03.08.2007, a lorry driven by the 1[st] respondent came in a rash and negligent manner and hit against the autorickshaw. The driver of the autorickshaw sustained serious injuries and succumbed to the same on reaching the hospital. The deceased was survived by his mother, wife and a minor child, who are the claimants. Negligence was found on the lorry, which was also covered by a valid insurance policy. There is no violation of terms and conditions of policy alleged and hence the appeal is to be considered only for the enhancement as ## **MACA.No. 2385 of 2012 3** claimed by the legal heirs. 2. As was noticed, the deceased was a 33 year old autorickshaw driver. The monthly income claimed was Rs.17,000/-. PW1 was examined to prove the income of the deceased. PW1 contended that the deceased was engaged regularly, for taking about 30 school going children to and fro. He was getting Rs.250/- from one child. It was also contended that the 30 children were carried in four different trips to school and back home. The deceased was also hiring out his autorickshaw after his regular school going engagement. There cannot be any substantiating document to evidence the salary. But the evidence indicate the various financial transactions of the deceased, especially in the nature of savings made by him in his lifetime which proves the income as claimed by the legal **MACA.No. 2385 of 2012 4** heirs, is the contention of learned Counsel Abraham K. John, who appears for the appellants. 3. Ext.A8 is the Pass Book of an account, maintained by the deceased in the Ernakulam District Co-operative Bank Ltd., Arakunnam Branch, which shows a deposit of Rs.580/- having been made on 31.07.2007. The account was opened in the month of June 2007 with a deposit of Rs.80/-. The specific contention is that further deposits could not be made, since the account holder died in the month of August. Ext.A9 is another Pass Book under a Small Deposit Scheme in the Edakkattuvayal Service Co-operative Bank Ltd., in which remittances of Rs.100/- was made on most days till 11.06.2007, with an average of Rs. 2500/- monthly right from 27.11.2006. Ext.A10 is a statement of accounts of a general ## **MACA.No. 2385 of 2012 5** advance availed from the Canara Bank, Arakunnam Branch by the deceased. It shows the repayments for the period from 24.09.2004 to 03.09.2007 at the rate of Rs.2,100/- every month. This amount has been regularly deposited every month by the borrower, who is the deceased in the accident. Ext.A11 is the true copy of a Chitty Register issued by the Edakkattuvayal Service Co-operative Bank Ltd., with a monthly subscription of Rs. 1000/-. After deduction an average of more than Rs.900/- was made from 20.09.2005. Exts.A12 and A13 are also Chitty Registers , again with monthly subscription of Rs.1,000/-, both commenced on September 2006 and regular monthly payments being effected. Ext.A14 is again a Post Office Recurring Deposit with a subscription of Rs.250/- per month starting from 22.11.2005, paid till **MACA.No. 2385 of 2012 6** 17.07.2007. Ext.A15 is yet another Post Office Recurring Deposit of Rs.1,400/- per month starting from 17.01.2006 and paid upto 17.07.2007. There were regular remittances made in these accounts on every month. It is seen that consistently an average amount of Rs.8,500/- to Rs.9,000/- is paid into the various accounts by the deceased on a monthly basis. The financial transactions as is evidenced from the above were with the income of the deceased, was the specific contention taken. 4. Going by the evidence produced, it is clear that the deceased was having financial transactions, both of deposits and repayment to advance, coming to Rs.9,000/- in the month previous to his death. The documents also indicate that this was not sporadic payments made in certain months and the deceased was a ## **MACA.No. 2385 of 2012 7** thrifty person, who had been making such deposits for a long period. The chitty transactions and the post office savings accounts as also the mini deposit made in the Service Co-operative Bank indicate the deposits made over the course of a number of years. The deceased was also managing a family consisting of his wife, mother and minor child. In such circumstances, this Court is inclined to accept the monthly income as claimed by the legal heirs at Rs.17,000/-. In fact going by the deposits made he should have been saving more than he was expending for himself and his family. The documents indicate a very industrious person who was very careful with his money. 5. Further enhancement is also granted, based on the decisions reported in **Sarla Verma and others v. Delhi Transport** **MACA.No. 2385 of 2012 8** ## **Corporation and others [(2010) 2 KLT 802]** and in _**National Insurance Company Ltd. v. Pranay Sethi and Others**_ **[2017 (5) KHC 350]** . Considering the age of the deceased, which is said to be '33' years, for future prospects, an addition of monthly income has to be made at 40% and a reduction made of 1/3[rd] for his own personal expenses. The monthly income to be adopted for the purpose of calculating the loss of dependency would be Rs.23,800/-. The multiplier to be adopted by this Court is '16'. |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the<br>Tribunal|Total amount<br>enhanced in appeal<br>`| |---|---|---|---| |1|Transport to<br>hospital|2000|2500| |2|Funeral expenses|2500|15000| |3|Damage to clothing|250|500| |4|Pain and suffering|5000|5000| |5|Loss of consortium|15000|40000| |6|Loss of dependency|447936|3046400<br>(23800x12x16x2/3)| ## **MACA.No. 2385 of 2012 9** |7|Loss of love &<br>affection<br>(one minor son and<br>mother)|15000|50000| |---|---|---|---| ||Loss of estate|2500|15000| ||**Total**|**490686**|**3174400**| 6. The learned Standing Counsel for the insurance company claims that the amounts awarded are far in excess of that claimed. The principle as enunciated in _**Rajesh** v._ _**Rajbir Singh [2013 (3) KLT 89 (SC)]**_ is that when just compensation is awarded by the Court, it need not necessarily confine itself to the claim raised by the injured. It is also to be noticed that over the years there have been modifications and enhancements made, by reason of the judgments of this Court and the Hon’ble Supreme Court. The amounts claimed under the various heads often is based on judgments as available at the time when the claim is filed. The present enhancement has been granted on the basis of **MACA.No. 2385 of 2012 10** the judgment in _**Pranay Sethi**_ , wherein there was considerable increase of amounts awarded from that earlier considered as just compensation. The plea of the insurer to limit the award to that claimed, is hence rejected. 7. The amounts awarded as above, after deducting what has already been paid shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and cost, if any, as directed by the Tribunal. The appellant shall produce a copy of a cancelled cheque of the Bank account in his name with copy of AADHAAR or other acceptable identification before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to the said **MACA.No. 2385 of 2012 11** account, failing which, the applicant can approach the Tribunal. The appeal would stand allowed. The parties to suffer their respective costs. **Sd/-** **K.VINOD CHANDRAN** **JUDGE** SB/15/02/19