Mohammed Rafi and Fatima Rifa (Minor) vs The Managing Director, Tamil Nadu Transport Department; Tamil Nadu State Transport Corporation Limited; Tamil Nadu State (R.C. Owner) (MACA No. 1106/2013 and MACA No. 1113/2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 14TH DAY OF SEPTEMBER 2017/23RD BHADRA, 1939 MACA.No. 1106 of 2013 () ------------------------- AGAINST THE AWARD IN OPMV 551/2010 of M.A.C.T., MANJERI. APPELLANT(S)/APPELLANTS/PETITIONERS: ----------------------------------- ## 1. MOHAMMED RAFI S/O. HAMZA, S/O. HAMZA, NEDUMPARAMBA HOUSE, O.K.MURI P.O., OORAKAM, MALAPPURAM DISTRICT, NOW RESIDING AT NECHIKUNDU HOUSE, MULLAMPARA, MANJERI, MALAPPURAM DISTRICT. ## 2. FATHIMA RIFA (MINOR) REPRESENTED BY HER GUARDIAN AND FATHER MOHAMMED RAFI (1ST APPELLANT), NEDUMPARAMBA HOUSE, O.K.MURI P.O., OORAKAM, MALAPPURAM DISTRICT, NOW RESIDING AT NECHIKUNDU HOUSE, MULLAMPARA, MANJERI, MALAPPURAM DISTRICT. BY ADVS.SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN RESPONDENT(S)/RESPONDENT/RESPONDENT NO.2: ----------------------------------------- THE MANAGING DIRECTOR TAMIL NADU TRANSPORT DEPARTMENT, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED, MADURAI, TAMILNADU STATE (R.C.OWNER). R1 BY ADV. SRI.SUBHASH CYRIAC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ALONG WITH MACA.1113/2013 ON 14-09-2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ. ----------------------------------------------MACA. No. 1106 & 1113 of 2013 ----------------------------------------------Dated this the 14th day of September, 2017 ## JUDGMENT ## Abdul Rehim,J. Since both the above appeals arise out of awards passed by the very same Tribunal, with respect to same accident, they were considered together and disposed of through this common judgment. The appellants in both these appeals are common. The 1[st] appellant is the father of the 2[nd] appellant who was a minor girl aged 5 years at the time of the accident. Mother of the 2[nd] appellant, who is the wife of the 1[st] appellant, as well as her younger sister who was an infant aged one year were lost in the accident. 2. MACA 1106/13, which is arising out of OP(MV) No.552/2010 pertains to the claim with respect to death of the mother and MACA 1113/13 which is arising out of OP MACA.1106 & 1113 of 2013. 2 (MV) 552/10 pertains to the claim with respect to the death of the infant. Contention of the appellants are that, the amount of compensation awarded in both these cases are highly inadequate, disproportionate and unreasonable. Hence they are seeking enhancement of the compensation awarded. We will deal with the contentions in both these cases separately. There is no dispute with respect to the liability of the respondent for payment of the compensation . MACA.1106/13 (1)The deceased was aged 21 years at the time of the accident. The appellants claimed that she was occupied as a tailor. But no evidence was adduced to prove that she was earning anything out of her occupation as tailor. The Tribunal assessed compensation considering her services as a home maker. The compensation for dependency was calculated adopting a notional income of Rs.2000/- per month. After deducting 50% towards personal expenses, the Tribunal fixed compensation under the head of MACA.1106 & 1113 of 2013. 3 dependency at Rs.2,16000/- by adopting the multiplier of 18. Learned counsel for the appellant contended that, the notional income of Rs.2000/- adopted by the Tribunal is highly inadequate and unreasonable, even accepting the view that she was only a home maker. In support of the above said contention the learned counsel had relied on the decision in **Lata Wadhwa and others vs. State of Bihar and others (2001 (8) SCC 197).** We are of the opinion that the amount of notional income fixed by the Tribunal is highly disproportionate and unreasonable. Even considering services rendered by the deceased as a home maker, the notional income can reasonably be fixed at Rs.4000/-. Further, the deceased was survived by her husband and a minor girl child. Therefore following the principles enunciated in **Sarala Varma vs. Delhi Transport Corporation (2010(2) KLT 802(SC)** only 1/3 need to be deducted towards personal expenses. Accordingly, compensation under the head of dependency is MACA.1106 & 1113 of 2013. 4 refixed at Rs.576000/-. (4000 x 2/3 x 12 x 18). This will entitle the appellant for an enhancement of Rs.3,60,000/on that count. (2). We are of the considered opinion that the amount of Rs.3000/- awarded towards funeral expenses is highly inadequate. Compensation under that head is enhanced to Rs.25000/-, which will entitle the appellant for a further sum of Rs.22000/-. Towards loss of consortium the Tribunal had awarded only a sum of Rs.10000/-. Considering the young age of the 1[st] appellant when he lost his wife, we are inclined to enhance the amount to Rs.100000/-. This will entitle the appellant for an additional amount of Rs.90000/-. As far as the 2[nd] appellant is concerned, she lost the love and affection from her mother at the tender age of 5 years. Therefore we are inclined to enhance the compensation under the head of love and affection to Rs.1,00,000/-, which will entitle for another enhancement of Rs.90000/-. The amount of Rs.5000/- awarded towards loss of estate is on MACA.1106 & 1113 of 2013. 5 the lower side, which need to be refixed to Rs.15000/- This will entitle the appellant for a further enhancement of Rs.10000/-. Thus, the appellants are entitled for a total enhancement of Rs.572000/- over and above the total amount of compensation awarded by the Tribunal. ## MACA 1113/2013 (1) In this case, an infant girl aged 1 (one) year was the victim. The Tribunal adopted a lump sum payment of Rs.75000/- as compensation. An amount of Rs.10000/was awarded as compensation towards love and affection and a further sum of Rs.3000/- was awarded towards funeral expenses. Thus, the total compensation awarded by the Tribunal was only a sum of Rs.88000/- . We are of the considered opinion that the compensation awarded is totally disproportionate. Going by the settled legal precedents,including the decision in **Reshma Kumari vs. Madan Mohan (2013 (2) KLT 304) (SC),** we are of the MACA.1106 & 1113 of 2013. 6 opinion that the rates mentioned in the 2[nd] schedule of the Motor Vehicles Act can be followed as guideline . In the notes appended to the 2[nd] schedule it is mentioned that, notional income in the case of those who had no income prior to the accident need to be adopted as Rs.15000/- per annum. Adopting the said amount as basis we are inclined to refix the compensation under the head of dependency at Rs.2,25,000/-, by adopting the multiplier of 15. Since it is the case of death of an infant we are not deducting any amount towards personal expenses. Thus the compensation under the head of dependency is refixed at Rs.2,25,000/which will entitle the appellants for an enhancement of Rs.150,000/-. The amount of Rs.3000/- awarded towards funeral expenses is refixed at Rs.25000/-, which will entitle the appellants for a further enhancement of Rs.22000/-. Towards loss of love and affection the Tribunal had awarded only a sum of Rs.10000/-. We take note of the fact that the 1[st] appellant (father) had lost his child and the 2[nd] MACA.1106 & 1113 of 2013. 7 appellant had lost her sister, apart from the loss of her mother. We reasonably assess a total amount of Rs.1 lakh towards loss of love and affection of the appellants. This will entitle the appellants for a further sum of Rs.90000/-. Thus we hold that the appellants are entitled for a total enhancement of Rs.2,62,000/-. 3. In the result, both the appeals are allowed in part. The appellants in MACA No.1106/13 will be entitled to get a total enhancement of Rs.572000/- over and above the amount awarded by the Tribunal. The appellants in MACA 1113/13 will be entitled for a total enhancement of Rs.262000/- over and above the amount of compensation awarded by the Tribunal. The enhanced amounts will carry interest at the same rate as awarded by the Tribunal, from the date of filing of the claim petition till realisation. The enhanced amounts shall also be apportioned among the appellants at the rates as ordered by the Tribunal. The respondent is directed to make deposit the amount within a MACA.1106 & 1113 of 2013. 8 period of two months. It is made clear that the appellants will be entitled to approach the Tribunal seeking withdrawal of the amount on such deposit and the Tribunal shall pass appropriate orders, if any such application is filed. The Tribunal shall realise balance court fee if any due, out of the enhancement granted. C.K.ABDUL REHIM, JUDGE K.P.JYOTHINDRANATH, JUDGE Pmn/ MACA.1106 & 1113 of 2013. 9