Nabeesa and Others v. Manikantan and United India Insurance Company 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 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935** ## **MACA.No. 2633 of 2008** **--------------------------------[O.P.(MV).NO.2688/2001 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR]** **..............** ## **APPELLANTS/PETITIONERS:** **-----------------------------------------** **1. NABEESA, W/O. LATE KUNJUMON @ VAVUTTY, PUTHENPEEDIKAYIL HOUSE, VAZHAKODE, P.O.MULLOORKARA, VIA. WADAKKANCHERY, THRISSUR DISTRICT.** **2. BEEVATHU, D/O.LATE KUNJUMON @ VAVUTTY, -DO- -DO-** **3. ABDUL SALAM, S/O.LATE KUNJUMON @ VAVUTTY, -DO- -DO-** **4. MUHAMMED ABSHEER, S/O.LATE KUNJUMON @ VAVUTTY,** - **-DO- -DO-** **5. ALI, S/O.LATE KUNJUMON @ VAVUTTY.** - **-DO- -DO-** **6. JAMEELA, D/O.LATE KUNJUMON @ VAVUTTY -DO- -DO-** **7. SUHARA, D/O.LATE KUNJUMON @ VAVUTTY,** - **-DO- -DO-** **8. LAILA, D/O.LATE KUNJUMON @ VAVUTTY,** - **-DO- -DO-** **BY ADVS.SRI.P.V.CHANDRA MOHAN, SRI.T.A.SHAIN.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. MANIKANTAN, S/O. SANKARAN, CHULLIVALAPPIL HOUSE, P.O.IRUNILAMKODE, MULLOORKARA, THRISSUR.** **Prv.** **M.A.C.A. NO.2633/2008:** ## **2. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, KURUPPAM ROAD, THRISSUR.** **R2 BY ADV. SMT.P.K.SANTHAMMA.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------- ## M.A.C.A. No.2633 of 2008 ----------------------------------------------------------------Dated this the 13[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimants in O.P.(M.V.)No.2688/2001 on the file of the Motor Accidents Claims Tribunal, Thrissur, are the appellants herein. The appellants are the wife and children of deceased Kunjumon, who died in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle, owned and driven by the first respondent and insured with the 2[nd] respondent. They claimed compensation for the death of their breadwinner. After considering the evidence on record, the tribunal found that, the accident occurred due to the negligent driving of the vehicle by first respondent and awarded a total compensation of 1,35,800/- on various₹ heads as follows: M.A.C.A. No.2633 of 2008 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Expense for transportation|1, 000| |2|Damage to clothing|500| |3|Funeral expenses|5, 000| |4|For pain and suffering|15, 000| |5|Loss of love and affection|10, 000| |6|Loss of dependency|80, 000| |7|Loss of estate|10, 000| |8|Loss of consortium|10, 000| |9|For extra nourishment|1, 500| |10|For treatment|1, 000| |11|Bystanders expenses|1, 800| ||Total|1, 35, 800| Dissatisfied with the quantum of compensation awarded, the appellants have preferred this appeal before this court, claiming enhancement. 2. Since the liability of the insurance company is admitted and the quantum alone is in dispute, we disposed of this appeal at the admission stage itself, after hearing the counsel for the insurance company as well. Since, notice has already been issued to the first respondent in the petition to condone the delay with intimation of the appeal, we are dispensing with fresh notice to the first respondent in the appeal. 3. Heard the counsel for the appellants and M.A.C.A. No.2633 of 2008 3 counsel for the insurance company. 4. The counsel for the appellants submitted that, the deceased was a coolie and getting 4,000/- per₹ month. But the tribunal has taken his monthly income as ₹ 2,000/-, which is palpably low. Further he died after 18 days of the incident and he suffered severe head injury, the tribunal has awarded only 1,000/- under the head₹ medical expenses. In fact, he was treated in a private hospital and they have produced documents before this court along with the I.A.No.3121/2008, (the medical bills amounting to ₹ 70,000-/) and that will have to be considered and appropriate orders will be passed by this court. Further the amount awarded under the head, loss of consortium and love and affection are also on the lower side. As per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC),** the proper multiplier applicable to the age group of 56 to 60 as the deceased was is 9 and not 5 as M.A.C.A. No.2633 of 2008 4 taken by the tribunal. The tribunal ought to have deducted only 1/4[th] as there are more than four dependents instead of 1/3[rd] adopted by the tribunal. So the appellants are entitled to enhancement on all heads. 5. On the other hand, counsel for the insurance company submitted that, the tribunal has considered all the aspects in the right perspective and considering the age of the deceased, the total compensation awarded is just and proper. Further the medical bills were not produced before the tribunal and without proper evidence, the same cannot be received in evidence is at the appellate stage. 6. We have considered the rival contentions of both parties in detail. 7. As regards, the medical bills are concerned, those documents were not produced before the tribunal. Further there is discrepancies in the age and name of the patient as well. So considering these M.A.C.A. No.2633 of 2008 5 aspects, we feel that, the documents produced in the appeal cannot be considered by this court in the appeal and we reject the same. 8. The fact that the accident occurred on 02.05.2001 and he died after 18 days of the accident, while he was undergoing treatment in a private hospital namely Aswini Hospital etc., are not in dispute. So, naturally being a private hospital, they would have incurred some amount towards treatment. The tribunal could have taken note of that fact and awarded reasonable amount under the head medical expenses. So the amount of 1,000/- awarded by the tribunal for the₹ treatment appears to be on the lower side. We award a further amount of 15,000/- under that head. ₹ 9. The proper multiplier applicable to the age group of 60 as the deceased was at the time of accident is 9 as per the decision reported in Sarla Verma's case (supra). Except the wife, others are major children. The M.A.C.A. No.2633 of 2008 **==> picture [7 x 9] intentionally omitted <==** tribunal was perfectly justified in not treating them as dependents of deceased and rightly deducted 1/3[rd] only for the personal expenses of the deceased. The tribunal has taken the monthly income of the deceased as Rs.2,000/-. In the absence of any acceptable evidence adduced on the side of the appellants, regarding his income or avocation, the amount of Rs.2,000/- awarded by the tribunal in the year 2001 cannot be said to be low. So, we are not inclined to enhance the monthly income of the deceased. of If a recalculation is made by taking the multiplier as 9, the appellants will be entitled to get an amount of ₹1,44,000/-(2,000x12x9x2/3) instead of ₹ 80,000/- awarded by the tribunal under the head loss of dependency. We award that amount under that head. 10. Considering the fact that, he sustained severe head injuries and he was treated as inpatient for 18 days before his death, we feel that the amount of ₹ 15,000/- awarded by the tribunal under the head pain M.A.C.A. No.2633 of 2008 **==> picture [7 x 9] intentionally omitted <==** and suffering is also on the lower side and we enhance the same to 25,000/-. The first appellant was aged 52₹ years at the time of the death of her husband. There is no possibility of re-marriage. She will have to live without the support of her husband for the remaining period of her life. So considering these aspects, the amount of ₹10,000/- awarded by the tribunal under the head loss of consortium is also on the lower side, we enhance the same to 40,000/-. Similarly, we are inclined to enhance₹ the amount awarded under the head love and affection to ₹ 30,000/- from 10,000/- awarded by the tribunal. We₹ are not inclined to enhance any amounts under other head, as the amounts awarded appears to be just and proper. In all, the appellants will be entitled to get additional compensation of 1,39,000/-, over and above₹ what has been awarded by the tribunal, which the 2[nd] respondent insurance company is liable to pay this amount with 9% interest per annum from the date of the M.A.C.A. No.2633 of 2008 **==> picture [7 x 9] intentionally omitted <==** claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. Since the appellants 2 to 8 are major children, we direct this additional amount to be paid to the first appellant, wife alone. 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