Mercy Francis, Joseph Stalin, and Varghese Levin v Augustine M.M. and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938 MACA.No. 810 of 2013 () -----------------------AGAINST THE AWARD IN OPMV 1147/2008 of MACT, IRINJALAKUDA DATED 15-12-2012 APPELLANT(S)/PETITIONERS: ------------------------------- 1. MERCY FRANCIS - W/O.LATE FANCIS, THOTTUMKARA HOUSE, VELLOOR, KUPPAM BAZAR DESOM, PUTHENCHIRA VILLAGE, VELLOOR P. O, MUKUNDAPURAM TALUK, THRISSUR DIST. 2. JOSEPH STALIN, AGED 15 YEARS - S/O.LATE FRANCIS, MINOR - -DO- -DO- 3. VARGHESE LEVIN, S/O,LATE FRANCIS, AGED 14 YEARS, MINOR - -DO- -DO- (2ND AND 3RD MINORS REP. BY THEIR NEXT FRIEND AND GUARDIAN MOTHER MERCY FRANCIS) BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS: -------------------------- 1. AUGUSTINE .M.M S/O.MANI M. V, 1/167,MANAVALAN HOUSE, NEAR ST.AUGUSTINE CHURCH, PIZHALA P.O, KADAMAKKUDY, KOCHI-682027 2. UNITED INDIA INSURANCE CO. LTD VETTUKATTIL BUILDINGS, M.G.ROAD, ERNAKULAM-682016 R2 BY ADV. SRI.P.MURALEEDHARAN BY ADV.SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ.** ## **==========================** ## **M.A.C.A. No.810 OF 2013** ## **==========================** Dated this the 27[th] day of May, 2016 ## **JUDGMENT** ## _Jyothindranath, J._ This appeal is preferred by the claimants against the award dated 15.12.2012 made in O.P.(MV).No.1147 of 2008 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. 2.The facts, relevant for the purpose of consideration of this appeal, are as follows:- A motor vehicle accident occurred on 24.11.2007. The deceased Francis was travelling as a pillion rider on a scooter bearing Reg.No.KL-7/BF-6857, ridden by the first respondent. The vehicle capsized. The deceased sustained injuries. Alleging negligence on the side of the first respondent, the claim petition was filed. M.A.C.A.810/2013 2 3.After appreciating the materials, the Tribunal found that the accident occurred due to the negligence of the first respondent, the rider of the scooter and also found that the insurance company of the vehicle is liable to compensate. The total compensation claimed was `8,00,000/-. The Tribunal awarded only `3,40,000/-. Aggrieved by the said award, this appeal is filed. 4.When the appeal came up for hearing, the learned counsel for the appellants submitted before us that, in this case, the main challenge is against the monthly income considered by the Tribunal for the assessment purpose. It is also the submission that the quantum of compensation awarded towards loss of consortium and towards loss of love and affection, is also very meager. It is the further submission that towards funeral expenses, only an amount of `2,000/- is awarded. It is the submission that the Tribunal had not considered the dictum laid down by the Hon'ble Supreme Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** M.A.C.A.810/2013 3 5.The learned counsel appearing for the insurance company submitted before us that, the Tribunal awarded just compensation. It is the submission that, even though the appellants/petitioners got a case that the deceased was working as a granite stone worker, no evidence was adduced before the Tribunal to substantiate the same. It is the submission that the Tribunal considered an income of `3,000/- for the deceased, even without any legal evidence and therefore, no interference is warranted. 6.It is a fact that the wife of the deceased is seen examined in this case. It is also seen from the award that an employment certificate is produced by the claimants. Surely, the said certificate is not seen proved. It is pertinent to note that the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** considered a notional income of `4,500/- in respect of a coolie who met with an accident in the year 2004. In the case in hand, the accident occurred in the year 2007. Thus, considering all these aspects, it will only be M.A.C.A.810/2013 4 just and proper to consider an income of `5,000/- of the deceased, for calculation purpose. 7.After going through the schedule attached to the award, we feel that a re-assessment and enhancement on the following heads are also necessary. Thus, towards funeral expenses, only a sum of `2,000/- is seen awarded. Considering the decision in **Rajesh** 's case (supra), the appellants are entitled for an additional amount of `23,000/-. That amount is awarded. Similarly, towards loss of consortium, only a sum of `5,000/- is seen awarded. The deceased was aged 47 years at the time of death. The first appellant who is none other than the wife of the deceased was aged 45 years. Considering all these aspects, we feel that an enhanced amount of `95,000/- can be awarded to the first appellant towards loss of consortium. Appellants 2 and 3 are the minor children of the deceased. At the time of the accident, they were only aged 11 years and 10 years respectively. Considering all these aspects and further keeping in mind that only a sum of `5,000/- is awarded towards love M.A.C.A.810/2013 5 and affection, another enhanced amount of `95,000/- is awarded on this head. 8.The next aspect to be considered is loss of dependency. We have already held that a sum of `5,000/- can be considered as the monthly income of the deceased for the assessment purpose. The multiplier available will be 13. Claimants are three in number. Thus, the additional compensation available on this head will be `2,08,000/- (5000x12x13x2/3-312000). Thus, the appellants are entitled for an additional compensation of `4,21,000/- over and above the amount already granted by the Tribunal. The enhanced compensation will bear 8% interest from the date of the petition till realisation. The second respondent shall pay the enhanced amount within two months from the date of receipt of a copy of this judgment. If the enhanced amount is not paid within the above stipulated period, it will bear 9% interest from the date of the petition till realisation. It is made clear that the first appellant, the wife of the deceased, is entitled fully for the enhanced compensation M.A.C.A.810/2013 6 of `95,000/- granted under the head loss of consortium. Appellants 2 and 3 were aged only 11 years and 10 years respectively at the time of the accident. `95,000/- granted towards loss of love and affection shall be shared equally between appellants 2 and 3. The balance amount available shall be shared in between the appellants, in the same ratios adopted by the Tribunal to share compensation. The share of appellants 2 and 3 shall be deposited in a nationalised bank for a period of two years, by the Tribunal. Surely, if they have become major, they can approach the Tribunal for release of the said amount showing sufficient reasons and the Tribunal is at liberty to release the same, on such application. There will be no order as to costs. ## **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** ## **K. P. JYOTHINDRANATH (JUDGE)** ## **spc/** M.A.C.A.810/2013 7 M.A.C.A.810/2013 8 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** M.A.C.A.810/2013 9