Mini James and others v. K. Chidambaran Pillai and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935** ## **MACA.No. 2043 of 2011 ( )** **-------------------------AGAINST THE AWARD IN OP(MV) NO. 696/2006 OF PRL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE ---------------** ## **APELLANTS/ PETITIONERS :** **--------------------------------------------** **1. MINI JAMES, AGED 39 YEARS THEKKEDATH (H), PO MUKKAM, KODANCHERY KOZHIKODE** **2. JINI JAMES (MINOR), AGED 18 YEARS D/B.28.7.1992, REP. BY HER MOTHER MINI JAMES THEKKEDATH (H), PO MUKKAM, KODANCHERY KOZHIKODE** **3. JITHIN JAMES (MINOR), AGED 14 YEARS D/B.19.7.1996, REP.BY HER MOTHER MINI JAMES THEKKEDATH (H), PO MUKKAM, KODANCHERY KOZHIKODE.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.DIPU JAMES SMT.K.V.RAMYA SRI.ARUN ALEX** ## **RESPONDENTS / RESPONDENTS :** **---------------------------------------------------** ## **1. K.CHIDAMBARAN PILLA** - **SAEE RAJ, MUNDAKKAL, WEST KOTTAYAM KOLLAM DISTRICT, PIN- 691 001.** ## **2. UNITED INDIA INSURANCE CO. LTD.** - **S.K.P. BUILDING, QUILON, PIN- 691 002.** **R2 BY ADVS. SRI.RAJESH THOMAS SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 2043 of 2011 ================== Dated this the 15[th] day of January, 2014 J U D G M E N T ## K.Ramakrishnan, J.: The claimants in O.P.(M.V).No.696/2006 on the file of the Motor Accidents Claims Tribunal, Kozhikode, are the appellants herein. The appellants, who are the wife and children of deceased Ulahannan filed the application for compensation for the death of their breadwinner caused on account of the rash and negligent driving of the vehicle by its driver, owned by the 1[st] respondent and insured with the 2[nd] respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to negligent driving of the vehicle by its driver and awarded a total compensation of ` 5,16,500/- on various heads as follows: ||Head of claim||Amount<br>awarded<br>`| |---|---|---|---| |1|Transport to hospital||2,000.00| |2|Damage to clothing||500.00| |3|Pain and suffering||5,000.00| |4|Funeral expenses||3,000.00| |5|Loss of love and affection||10,000.00| |6|Loss of estate||10,000.00| |7|Loss of consortium||10,000.00| |8|Loss of dependency||476,000.00| ||Total||5,16,500.00| m.a.c.a.2043/11 - : 2 :- Dissatisfied with the quantum of compensation awarded, the appellants have come before this Court with the above appeal seeking enhancement. 2. Heard the learned counsel for the appellants and the learned standing counsel for the insurance company. 3. The learned counsel for the appellants submitted that the deceased was working as a driver and getting ` 5,000/- per month. But the Tribunal has arbitrarily fixed his monthly income as ` 3,500/- without taking into consideration the future prospects. So the amount awarded under the head, 'loss of dependency' is on the lower side. Further, the deceased was aged 32 years at the time of his death and the 1[st] appellant, who is his wife, was 31 years and so the amount of ` 10,000/awarded under the head, 'loss of consortium' is on the lower side. Further, appellants 2 and 3 were minor children and they have lost their father at their young age. So the amount of ` 10,000/- awarded by the Tribunal under the head, 'loss of love and affection' is also on the lower side. The amounts awarded under the heads, 'pain and sufferings' and 'funeral expenses' are also on the lower side. So, according to the learned counsel for the appellants, the appellants are entitled to get enhancement on m.a.c.a.2043/11 - : 3 :- all heads. 4. On the other hand, the learned counsel for the insurance company submitted that the deceased was aged 32 years and as per the decision of the Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation** , 2009 ACJ 1298 (SC), the multiplier applicable to that age group is only 16 and not 17 as taken by the Tribunal. So the total compensation awarded is just and proper and no interference is called for at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellants was that the deceased was working as a casual driver of Josco Rubbers and getting ` 250/per day. They have examined PW1, the Public Relationship Officer of that concern by producing Ext.A7 certificate issued by the concern. But they have not produced any corresponding document to prove that he was employed in that concern and he was getting the income as certified in Ext.A1. Under the circumstances, the Tribunal was perfectly justified in not relying on Ext.A1 for the purpose of fixing his monthly income. In such circumstances, the Tribunal is expected to do some guess work m.a.c.a.2043/11 - : 4 :- for assessing monthly income notionally. Considering the fact that he was a driver by profession and also taking his future prospects, the amount of ` 3,500/- taken by the Tribunal as his monthly income in the year 2003 in the absence of any acceptable evidence adduced cannot be said to be on the lower side. So we are not inclined to enhance the monthly income fixed by the Tribunal as we feel that it is just and proper. 7. There is some force in the submission made by the learned counsel for the insurance company regarding the multiplier taken by the Tribunal. The deceased was aged only 32 years at the time of his death. As per the decision in **Sarla Verma's case** (supra), the proper multiplier applicable to the age group of the deceased was 16 and not 17. If a recalculation is made on that basis, the appellants will be entitled to get only ` 4,48,000/- (` 3,500x 12 x 16 x 2/3) instead of ` 4,76,000/awarded by the Tribunal. So there is an excess amount of ` 28,000/- awarded under the head, 'loss of dependency'. 8. But the Tribunal has awarded only ` 10,000/- under the head, 'loss of consortium' for the 1[st] appellant. She was aged only 31 years at the time of death of her husband. She was gifted with two minor children through the deceased and there is no m.a.c.a.2043/11 - : 5 :- possibility for a re-marriage for the 1[st] appellant. She has lost the consortium and support of her husband for the remaining period of her life. It cannot be compensated in terms of money. As per the decision of the Supreme Court in **Rajesh v. Rajbir Singh** , 2013 (3) KLT 89(SC), in appropriate cases, the Tribunal should award at least ` 1,00,000/- as compensation under the head, 'loss of consortium'. In the case, the deceased was aged 32 years and his wife is still younger and the Hon'ble Supreme Court has awarded ` 1,00,000/- as compensation under the head of loss of consortium. In this case, deceased was aged 32 years and the 1[st] appellant was aged 31 years. So we feel that it is a fit case to award ` 1,00,000/- as compensation to the 1[st] appellant under the head, 'loss of consortium'. But the Tribunal has awarded only ` 10,000/- under that head. Adjusting the excess amount of ` 28,000/- awarded under the head, 'loss of dependency' towards this amount, the 1[st] appellant is entitled to get an additional amount of ` 62,000/- under that head and we award this amount also under the head, 'loss of consortium'. 9. The Tribunal has awarded only ` 10,000/- under the head, 'loss of love and affection'. The children were aged only 12 years and 8 years at the time of death of their father. They have m.a.c.a.2043/11 - : 6 :- lost the love and affection and guidance of their father at their young age. Therefore, we are inclined to enhance the same to ` 30,000/- from ` 10,000/-. The amount awarded under the head, 'pain and suffering' is also on the lower side and we enhance the same to ` 10,000/- from ` 5,000/-. The Tribunal has awarded only ` 3,000/- under the head, funeral expenses' which appears to be on the lower side. So we enhance the same to ` 10,000/-. Despite the persuasive arguments of the learned counsel for the appellants, we are not inclined to enhance the compensation under the other heads, as we feel that the Tribunal has awarded just and proper compensation under the other heads. In all, the appellants will be entitled to get an additional amount of ` 94,000/- over and above what has been awarded by the Tribunal, which the 2[nd] respondent insurance company is liable to pay with 9% interest from the date of petition till date of payment. Two months' time is granted to the insurance company to deposit this amount as well. The amount shall be shared among the appellants equally. The share due to the minor appellants shall be deposited in a nationalised bank till attaining majority with liberty to the 1[st] appellant to withdraw the monthly interest accrued for the maintenance of the minor appellants. m.a.c.a.2043/11 - : 7 :- With the above modification of the impugned award of the Tribunal, the appeal is disposed of. sdk+ Sd/S.SIRI JAGAN, JUDGE Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge