Meena and Others v. The Managing Partner, KAP (India) Clay Products; Deepak and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 7TH DAY OF NOVEMBER 2013/16TH KARTHIKA, 1935** ## **MACA.No. 1338 of 2010 ( )** **-------------------------(AGAINST THE AWARD IN OP(MV)NO. 1629/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 05-02-2010)** **--------------------------------------** ## **APPELLANT(S)/PETITIONERS IN OP(MV):** **----------------------------------------------------------------** **1. MEENA, W/O.LATE ANTO, PONTHOKKAN HOUSE, KARUVANNUR DESOM & P.O., PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK.** **2. MINTO ANTO (MINOR), AGED 16 YEARS,** - **S/O.LATE ANTO, PONTHOKKAN HOUSE, KARUVANNUR DESOM & P.O., PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK, REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN MOTHER 1ST APPELLANT MEENA.** **3. MIDHUN ANTO (MINOR) AGED 14 YEARS, S/O.LATE ANTO, PONTHOKKAN HOUSE, KARUVANNUR DESOM & P.O., PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK, REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN MOTHER 1ST APPELLANT MEENA.** **4. MARIA ANTO (MINOR) AGED 12 YEARS, S/O.LATE ANTO, PONTHOKKAN HOUSE, KARUVANNUR DESOM & P.O., PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK, REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN MOTHER 1ST APPELLANT MEENA.** **5. ANTHONY, S/O.PONTHOKKAN ANTHONY, PONTHOKKAN HOUSE, KARUVANNUR DESOM, PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK.** **6. MARY, W/O.ANTHONY, PONTHOKKAN HOUSE, KARUVANNUR DESOM, PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** **2/-** **sts** **-2-** **MACA.NO.1338/2010** ## **RESPONDENT(S)/RESPONDENTS IN OP(MV):** **--------------------------------------------------------------------** **1. THE MANAGING PARTNER, KAP (INDIA) CLAY PRODUCTS, VARADIUM P.O., THRISSUR.** **2. DEEPAK, S/O.GOVINDANKUTTY,** ## **KATTOOR PISHARAM, PONJANAM P.O., KATTOOR.** **3. THE NEW INDIA ASSURANCE CO. LTD., PERINCHERRY BUILDINGS, ROUND NORTH, THRISSUR.** **R3 BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1338 of 2010 -----------------------------------------------------------------Dated this the 7[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimants in O.P.(M.V.)No.1629/2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda are the appellants herein. Claimants who are the wife, children and parents of deceased Anto, filed the application for compensation for the death of their breadwinner, caused on account of the rash and negligent driving of the vehicle by the 2[nd] respondent owned by the first respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that, the accident occurred due to the rash negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of ₹ 4,90,250/- on various heads as follows: M.A.C.A. No.1338 of 2010 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of dependency|4, 20, 000| |2|Pain and suffering|7, 000| |3|Funeral expenses|4, 000| |4|Loss of consortium|20, 000| |5|Love and affection|20, 000| |6|Medical expenses|19, 250| ||Total|4, 90, 250| Dissatisfied with the quantum of compensation awarded, the appellants have preferred this appeal before this court, claiming enhancement. 2. Heard the counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that, the deceased was a business man in electrical goods and getting 10,000/- per month. They have produced₹ document to prove that he was conducting the business. But the tribunal has arbitrarily fixed his monthly income as 3,500/- per month, which is on the lower side,₹ considering the fact that the accident occurred in the year of 2006. As per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the tribunal ought to have deducted 1/4[th] instead of 1/3[rd] for the personal expenses of the M.A.C.A. No.1338 of 2010 3 deceased, as the dependants are more than 4 in number. The amounts awarded under the head compensation for loss of consortium, loss of love and affection are also on the lower side, considering the age of the widow, and the age of the children. Further, no amount was awarded under the head loss of estate, bystanders expenses, transportation expenses etc. He died 3 days after the incident. But the tribunal has awarded only 7,000/-₹ under the head pain and suffering, which is palpably low. So, according to the counsel for the appellants, the appellants are entitled to enhancement on all heads. 4. On the other hand, counsel for the insurance company submitted that the deceased was aged 43 years as per the postmortem certificate and the correct multiplier is 14 as per Sarla Verma's case(supra) and not 15 as taken by the tribunal. The tribunal has considered all the aspects and the total compensation awarded is just and proper and no interference are called for at the hands of this court. 5. We have considered the rival contentions M.A.C.A. No.1338 of 2010 4 of both parties in detail. 6. The fact that the deceased Anto was aged 43 years and he was doing business in electrical items was not seriously disputed and they have produced some document to prove this fact as well. But those documents was not sufficient to prove the actual income of the deceased. So, some guess work will have to be done by the tribunal for assessing the monthly income of the deceased. Considering the fact that he is a private entrepreneur doing business and aged 43 years and the accident occurred in the year 2006, we feel that the amount of 3,500/- fixed by the tribunal appears to be on₹ the lower side and so, we re-fix the monthly income of the deceased as 4,000/- per month. There are 6 dependants,₹ including the aged parents who were depending on the income of the deceased at the time of his death. As per Sarla Verma(supra), the deduction for personal expenses ought to be only 1/4[th] and not 1/3[rd] . There is some force in the submission made by the counsel for the insurance company that the multiplier taken is not correct, and as M.A.C.A. No.1338 of 2010 5 per Sarla Verma (supra), the correct multiplier for the age group of 43 years as the deceased was at the time of his death is 14 and not 15. If a re-calculation is made on the basis of the above inputs, the appellants will be entitled to get an amount of ₹ 5,04,000/(4,000x12x14x3/4) instead of 4,20,000/- awarded by the₹ tribunal, under the head loss of dependency and we award this amount under that head. 7. The first appellant was aged 34 years and she is having 3 minor children to be looked after the death of her husband besides the old parents of her husband. There is no possibility of a re-marriage for the first appellant in the circumstances mentioned above. She has lost the support, love and affection at this young age. So considering this aspects, the amount of 20,000/-₹ awarded by the tribunal under the head loss of consortium is on the lower side and we enhance the same to 30,000/-. Similarly, the appellants 2 to 4 were aged₹ 12 years and 8 years each respectively and the parents aged 68 and 61 years at the time of the death of the M.A.C.A. No.1338 of 2010 6 deceased. The children have lost the love and affection of their father at the young age and the parents have lost the support of their son at the old age. Considering these aspects, the amount of 20,000/- awarded by the tribunal₹ under the head loss of love and affection is also on the lower side and we enhance the same to 40,000/-. The₹ deceased died 3 days after the incident. The tribunal awarded only 7,000/- under the head pain and suffering,₹ which is also on the lower side. We enhance the same to ₹ 15,000/-. No amount was awarded under the head transport to hospital, bystanders expenses, extra nourishment etc,. So, we award a consolidated amount of ₹ 5,000/- under that head. No amount was awarded under the head loss of estate. So, we award a conventional amount of 10,000/- under that head. We₹ are not inclined to enhance any amount under other heads. In all, the appellants are entitled to get ₹1,37,000/- as additional compensation, over and above what has been awarded by the tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% M.A.C.A. No.1338 of 2010 7 interest per annum from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount. The appellants 5 and 6 being aged parents, the additional compensation is directed to be paid to the appellants 1 to 4 alone. The amounts due to the minors shall be deposited in a nationalised bank, till they attain majority with liberty for the first appellant to withdraw the interest accrued for the benefit of the minors. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss