Nagalakshmi and others v Suresh Babu and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938 MACA.No. 627 of 2013 () -----------------------AGAINST THE AWARD IN O.P(M.V)NO.864/2009 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 04-12-2012 ## APPELLANTS/PETITIONERS: ------------------------------ 1. NAGALAKSHMI, 43 YEARS, - W/O.DECEASED KRISHNAIH, 2 199 DOOR NO.VIJAYANAGARAM, KALIKIRI VILLAGE, THUMMELPETTA, VADIPALLI, CHITTOR DISTRICT, PO KOTHAPALLI, ANDRAPRADESH. 2. REDDAMMA, 28 YEARS, - D/O.DECEASED KRISHNAIH, 2-199 DOOR NO, VIJAYANAGARAM, KALIKIN VILLAGE. 3. REDDAPPA, 26 YEARS, S/O.DECEASED KRISHNAIH, - 2-199 DOOR NO, VIJAYANAGARAM, KALIKIN VILLAGE. BY ADVS.SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN SMT.PRINCY XAVIER ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. SURESH BABU, S/O.VELAYUUDHAN, - AGE NOT KNOWN TO THE APPELLANT, PAZHAM PALAKKOTTU HOUSE, P.O.POOKOTTUMPADAM, MALAPPURAM DISTRICT (RIDER)-676505. 2. KOYA, 8/391 CHETTIYATHODIKA HOUSE, AGE NOT KNOWN TO THE APPELLANT, RAMANKUTH.P.O., NILAMBOOR, MALAPPURAM DISTRICT-676505 (OWNER) 3. THE NEW INDIA ASSURANCE COMPANY LTD. TRIPURI BUILDINGS, EAST NADAKKAVU, CALICUT (INSURER)-673104. R1 & 2 BY ADV. SRI.P.VENUGOPAL (1086/92) R3 BY ADV. SRI.M.RAJAGOPALAN R BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.627 of 2013 -------------------------------Dated 30[th] May, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeal has been preferred against the award dated 4.12.2012 in O.P.(M.V)No.864 of 2009 passed by the Motor Accidents Claims Tribunal, Manjeri. The appellants were the petitioners therein. They are the legal heirs of one Krishnaih, the victim. He was a foot passenger and while he was walking alongside the road near Nilambur Railway Station on 23.9.2008 at about 6.15 a.m. the offending vehicle, which is a two wheeler driven by the first respondent, knocked him down. Consequently, he sustained injuries and later succumbed to them. He was then aged 40 years and he was a manual labourer. It is in the said circumstances that his legal heirs, who are none other than his widow and children, filed the above mentioned claim petition seeking a total compensation of 7,00,000/-. To₹ establish their claim they got marked Exts.A1 to A5. Both sides did not adduce any oral evidence and in fact, on the side of the respondents no documentary evidence was also adduced. The Tribunal on evaluation of the evidence on record and appreciating the rival contentions passed M.A.C.A.No.627 of 2013 2 the impugned award for a total compensation of 2,88,000/- with₹ interest at the rate of 9% per annum from the date of petition till realisation. It is on being aggrieved by and dissatisfied with the quantum of compensation granted that the captioned appeal has been preferred seeking its enhancement. 2. We have heard the learned counsel for the appellants and also the learned counsel for the third respondent. 3. In the light of the arguments advanced before us it is evident that apart from the dispute on the quantum of compensation there is no dispute on the other issues viz., the accident, the insurance coverage of the offending vehicle, the question of cause of the accident as the negligence from the part of the first respondent. In the said circumstances, we will consider the merits of the claim for enhancement of compensation. 4. The learned counsel appearing for the appellants contended that despite the specific averments in the claim petition that the deceased was aged only 40 years and he was a manual labourer the Tribunal disregarded such averments and fixed the monthly income of M.A.C.A.No.627 of 2013 3 the deceased, for the purpose of computing the compensation, only at ₹ 3,000/-. That apart, it is contended that the multiplier was wrongly adopted by the Tribunal as 13. It is the contention that the erroneous fixation of the multiplicand as also multiplier that resulted in deprivation of just compensation. 5. We will firstly consider the aforesaid aspect. A bare scanning of the impugned award would undoubtedly reveal the reason why the Tribunal disregarded the contention regarding the age and adopted the multiplier as `13'. From the claim petition itself it is evident that at the time of the death of Krishnaih he was aged 40 years and the first appellant viz., his wife was aged only 38 years. Further, going by the claim petition appellant Nos. 2 and 3 who are his children were respectively aged 23 years and 21 years. If the said averments in the claim petition are taken as correct it must be taken that the marriage between the deceased and the first appellant took place when they were minors. Taking into account all those aspects the Tribunal found it only fit to assume that the deceased was belonging to the age group of 45-50 years. In the absence of proof regarding the age we do not think it proper to interfere with the conclusion of the Tribunal regarding the age of the deceased. In the light of the decision of the M.A.C.A.No.627 of 2013 4 Hon'ble Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ in the case of persons belonging to the age group of 45-50 the multiplier to be adopted is `13'. Therefore, we do not find any reason to hold that the Tribunal went wrong in fixing the multiplier. As regards the question whether the Tribunal had correctly fixed the monthly income of the deceased for the purpose of computing compensation, various aspects have to be looked into. Evidently, the Tribunal took the monthly income only at 3,000/-. The accident₹ occurred in the year 2008. In the contextual situation, it is only apposite to refer to a decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236).**_ That was a case wherein, in respect of an accident occurred to a Coolie in the year 2004, for the purpose of computing compensation, the Hon'ble Apex Court fixed his monthly income at 4,500/-. The accident in this case₹ occurred almost about four years thereafter. The age of the deceased was taken as 45 years. In such circumstances, we are of the view that the Tribunal went wrong in fixing the monthly income of the appellant as 3,000/-. Though from the recital in paragraph 7 of the impugned₹ award it would appear that the Tribunal has fixed the monthly income of the deceased as 3,000/- a perusal of the schedule of compensation₹ M.A.C.A.No.627 of 2013 5 given in the award would reveal that in fact, 3,000/- was not₹ reckoned as the monthly income for the purpose of computing the compensation under the head `loss of dependency'. True that the Tribunal has deducted one third of the income towards personal expenses of the deceased and then assessed 2,60,000/- under the₹ said head. 6. In view of the discussion as above, we are of the view that the monthly income of the deceased has to be fixed at 5,000/-₹ for the purpose of computing compensation. Evidently, the deceased was survived by three legal heirs. We are of the view that in the light of the number of dependants and taking into account the dictum laid down by the Hon'ble Apex Court in **Sarla Verma's** case (supra) one third of the income has to be deducted towards personal expenses and in fact, the Tribunal has rightly reduced one third of the income while calculating the compensation payable under the head `loss of dependency'. In such circumstances, on its re-assessment after substituting the monthly income towards compensation under the head `loss of dependency' the appellants are entitled to get an amount of ₹ 5,20,000/-. After deducting the amount already granted by the Tribunal under the said head they would be entitled to get an amount of M.A.C.A.No.627 of 2013 6 ₹ 2,60,000/- more under that head. Towards `loss of consortium' the appellants claimed an amount of 2,00,000/- and the Tribunal granted₹ only an amount of 10,000/-. The contention of the learned counsel₹ for the appellant is that the said fixation is in violation of the dictum laid down by the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh (2013 (3) KLT 89(SC))** . Going by the said decision, the surviving spouse is entitled to get an amount of 1,00,000/- towards loss of consortium.₹ The first appellant had not adduced any evidence to persuade us to grant an amount which is higher than 1,00,000/-. In the said₹ circumstances, the first appellant is entitled to get an amount of ₹ 1,00,000/- towards loss of consortium. But, the Tribunal has already granted 10,000/- under the said head. Hence, deducting he said₹ amount the first appellant will be entitled to 90,000/- more under that₹ head. Towards `loss of love and affection' the appellant claimed an amount of 4,00,000/- and the Tribunal granted only an amount of₹ ₹ 10,000/-. In the light of the fact that the first appellant was already granted compensation under the head `loss of consortium', taking also of the factor of `loss of love and affection', she is not entitled to get compensation under the said head. While considering the question regarding the quantum of compensation to be granted to appellants 2 and 3 under that head the fact that they were then aged 23 and 21 M.A.C.A.No.627 of 2013 7 years also has to be taken into account. Taking into account all such circumstances, we are of the view that appellants 2 and 3 are entitled to get an amount of 20,000/- more under that head. Towards funeral₹ expenses an amount of 3,000/- was granted by the Tribunal. The₹ learned counsel for the appellant relied on the decision in **Rajesh's** case (supra) to contend that the appellants are entitled to get ₹ 25,000/- under that head. In the light of the decision in **Rajesh's** case (supra), in the absence of evidence on higher expenses the minimum to be granted towards funeral expenses is 25,000/-. In₹ such circumstances, after deducting the amount of 3,000/- the₹ appellants are awarded an amount of 22,000/- under that head.₹ Towards `pain and suffering' though an amount of 15,000/- was₹ claimed the Tribunal did not grant any amount under that head. Presumably, the Tribunal declined to grant compensation under that head treating that Krishnaih died almost instantaneously after the accident. At the same time, the evidence on record would reveal that the accident occurred at 6.15 a.m. on 23.9.2008 and he breathed his last from the hospital in the small hours of 24.9.2008, precisely, at about 2.45 a.m. In the said circumstances, there can be no doubt that from the injury sustained in the accident he must have endured excruciating pain. In such circumstances, we are inclined to grant an M.A.C.A.No.627 of 2013 8 amount of 10,000/- under that head and it is awarded. Going by the₹ nature of the injuries sustained by the deceased Krishnaih in the accident it is evident that the dresses worn by him at the time of the accident must have been damaged. In such circumstances, we are inclined to grant an amount of 1,000/- under that head. ₹ In the light of the discussion as above, the appellants are entitled to get an enhanced compensation of 4,03,000/-. The₹ enhanced amount of compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to deposit the enhanced compensation within a period of three months from from the date of receipt of copy of this judgment failing which the amount remaining to be paid will carry interest at the rate of 9% per annum. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** **-** Sd/ **K.P.JYOTHINDRANATH Judge** TKS