Mary, widow of late Thomas; Biju, son of late Thomas; Bindu, daughter of late Thomas v K. Karunakaran S/o BhanuMathi Amma, Pratheesh N.G., New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937 MACA.No. 1992 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1040/2006 of M.A.C.T.,PERUMBAVOOR DATED 17-03-2011 APPELLANT(S)/PETITIONERS: -------------------------------- 1. MARY, AGED 55 YEARS WIFE OF LATE THOMAS 2. BIJU, AGED 33 YEARS SON OF LATE THOMAS 3. BINDU, AGED 29 YEARS - DAUTHER OF LATE THOMAS BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.G.ARUN GOPAN RESPONDENT(S): -------------- 1. K.KARUNAKARAN S/O. BHANUMATHI AMMA, 4/236, KANDAMMATTIL HOUSE, KUTTANCHERY P.O, ERUMAPETTY, TRICHUR DISTRICT, PIN- 680 001 2. PRATHEESH N.G. S/O.N.K.GOPI, MULLACKAL HOUSE, PATTAMBI ROAD, NELLUVAI, TRICHUR DISTRICT- 680 001. 3. NEW INDIA ASSURANCE COMPANY LTD. ORISON COMPLEX, WADAKKANCHERY ROAD, KUNNAMKULAM- 680 503 R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** **========================== M.A.C.A. No.1992 OF 2011 ==========================** Dated this the 17[th] day of March, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal has been preferred by the claimants who are the legal heirs of one Thomas who died in a motor vehicle accident at 4.45 a.m on 17.4.2006. They are respectively his widow and children. The deceased was riding his motor cycle on that fateful day through NH Road, Angamaly. By about 4.45 a.m he reached near T.B junction and then, the offending vehicle, a Tata Sumo Car bearing Reg.No.KL8/K-6444, driven by the second respondent in a rash and negligent manner, dashed down his motor cycle. Thomas sustained injuries to which he succumbed enroute to the hospital. It is in the said circumstances that the appellants herein filed O.P(MV) No.1040 of 2006 before the Motor Accidents Claims Tribunal, Perumbavoor **M.A.C.A.1992/2011** 2 under section 166 of the Motor Vehicles Act claiming a total compensation of `5,48,000/- and limiting it to `5,00,000/-. 2.Before the Tribunal, the appellants got marked Exts.A1 to A7, but they did not adduce any oral evidence in support of the claim. On the side of the respondents, no oral evidence was adduced. However, Ext.B1 which is a copy of the policy was got marked. After analysing the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award. As per the impugned award, the Tribunal awarded a compensation of `2,48,750/- with interest @ 8% from the date of the petition till realisation. It is dissatisfied with the quantum of compensation awarded thereunder that the captioned appeal has been preferred. - 3.Admittedly, no appeal has been preferred by the respondents - before the Tribunal against the aforesaid award dated 17.3.2011. In **M.A.C.A.1992/2011** 3 such circumstances, it is evident that the accident, insurance coverage of the offending vehicle as also the cause of the accident as the negligence from the part of the second respondent are not at all in dispute. In short, the question now to be considered is only whether or not the appellants are entitled to get enhanced compensation as claimed. 4.The main grievance of the appellants is against the fixation of the multiplicand as also the multiplier for the purpose of fixing the compensation under the head loss of dependency. In the claim petition, it was stated that the deceased was a fish vendor and he was earning a monthly income of `5,000/-. Evidently, no evidence was adduced by the claimants in support of the claim regarding age, occupation as also the income of the deceased. In such circumstances, we do not find any error on the part of the Tribunal in fixing the monthly income of the deceased notionally for the purpose of **M.A.C.A.1992/2011** 4 calculating the compensation under the head loss of dependency. Still, the question to be decided is whether the fixation of the multiplicand as `3,000/- invites interference. The accident occurred on 17.4.2006. Taking into account the fact that in respect of an accident occurred in the year 2004 to a coolie, the Hon'ble apex Court fixed the monthly income notionally at `4500/in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** and the declared age of the deceased in the claim petition viz., 55 years, we are of the view that the monthly income of the deceased for the aforesaid purpose can be fixed notionally at `4,000/-. We do so. Now, the question to be decided is whether the contention of the appellants to the effect that the Tribunal wrongly identified the multiplier requires any interference. As noticed hereinbefore, no evidence was adduced by the claimants for proving the age of the deceased. It is to be noted that the claimants have stated in the claim petition that the deceased **M.A.C.A.1992/2011** 5 was aged 55 years. When the date of birth of the deceased is not proved by the claimants for the purpose of taking the multiplier, we are of the view that it is to be treated that he had crossed the age of 55 and therefore, for the aforesaid purpose the multiplier applicable to the said age group 56-60 viz., 9 has to be applied. In this case, the Tribunal adopted multiplier '9'. In such circumstances, we do not find any reason to interfere with the multiplier applied by the Tribunal for the aforesaid purpose. Taking into account the number of dependents of the deceased and applying the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation** reported in **2010 (2) KLT 802 (SC),** 1/3[rd] of the income was to be deducted towards personal expenses of the deceased to arrive at the multiplicand by the Tribunal. Since we have taken the multiplicand as `4,000/- the amount of compensation payable under the head loss of dependency has to be re-assessed following the same formula. On such computation, the amount under the aforesaid head would become **M.A.C.A.1992/2011** 6 `2,88,000/-. After deducing the amount granted by the Tribunal viz., `2,16,000/-, the appellants would be entitled to get `72,000/additionally under the said head. Though no amount was claimed towards funeral expenses, the Tribunal granted an amount of `2,500/-. In the light of the decision of the Hon'ble Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** in the absence of evidence of higher expenses, `25,000/- has to be paid under the said head. In such circumstances, the appellants are entitled to get `22,500/- more towards funeral expenses. Towards damage to clothing, an amount of `1,000/- was claimed as damages. However, the Tribunal granted only `250/-. There can be no doubt that the dresses worn by the deceased Thomas at the time of the accident must have got damaged. In such circumstances, we are inclined to grant an amount of `750/- more towards damage to clothing. Towards the loss of estate, no claim was made by the appellants. However, the Tribunal granted an amount of `2,500/-. We are of the view that since `5,000/- **M.A.C.A.1992/2011** 7 is the conventional amount under that head it ought to have been granted. Accordingly, we grant `2,500/- more under the said head. Towards loss of consortium, the appellants claimed an amount of `50,000/- and the Tribunal granted `10,000/-. In the light of the decision of the Hon'ble Apex Court in **Rajesh** 's case (supra), the spouse alone is entitled to get compensation for loss of consortium and a minimum of `1,00,000/- has to be granted thereunder in the absence of any evidence to get an amount in excess of the same. In this case, no specific circumstances have been made out by the appellants to get an amount more than `1,00,000/- under the said head. In such circumstances, in the light of the said decision the first appellant is entitled to get an amount of `90,000/- more under the said head. Towards loss of love and affection, no claim was made by the claimants. But, the Tribunal granted an amount of `10,000/-. Taking into account the fact that the deceased Thomas left behind three legal heirs and also considering their relationship with him, we are of the **M.A.C.A.1992/2011** 8 view that the appellants are entitled to get `20,000/- more under the said head. In the light of the discussions as above, the appellants are entitled to get total enhanced amount of `2,07,750/-. The said enhanced amount will carry interest @ 8% per annum from the date of the petition till realisation. The third respondent is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment failing which the amount remaining to be paid will carry interest @ 9% . There will be no order as to costs. **Sd/-** **C.T. RAVIKUMAR** **(JUDGE)** **Sd/-** **MARY JOSEPH (JUDGE)** **spc/** # **M.A.C.A.1992/2011** 9 **M.A.C.A.1992/2011** 10 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.1992/2011** 11