Nilavarneesa v. C.J. Shajahan and United India Insurance Co. Ltd. and others (MACA No. 444 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937** **MACA.No. 444 of 2008 ( ) ------------------------AGAINST THE AWARD IN OPMV 1257/2002 of M.A.C.T., PALAKKAD DATED 09-07-2007** ## **APPELLANTS/PETITIONERS 1 TO 3:** **1. NILAVARNEESA, W/O.SHAHUL HAMEED PLACHIMADA COLONY, KANNIMARI POST VANDITHAVALAM CHITTUR, PALAKKAD, NOW RESIDING AT PALLAM LEVA CHALLA, MUTHALAMADA, PALAKKAD.** **2. ANFAR ALI, S/O. SHAHUL HAMEED REPRESENTED BY MOTHER 1ST APPELLANT NILAVARNEESA** **3. ANEESA, D/O. SHAHUL HAMEED, REPRESENTED BY MOTHER 1ST APPELLANT NILAVARNEESA** **BY ADV. SRI.A.R.GANGADAS** **RESPONDENTS/RESPONDENTS AND PETITIONERS 4 TO 6:** **-----------------------------------------------** **1. C.J.SHAJAHAN, S/O.C.R.JOSEPH, 17/229 CHUNGATH HOUSE, THATTAMANGALAM POST, CHITTUR TALUK PALAKKAD. 678 102.** **2. UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, DOOR NO.10/290, G.B.ROAD PALAKKAD 678 001.** **3. SYED MOHAMMED, S/O.SARABEEBI PLACHIMADA COLONY, KANNIMARI POST, VANDITHAVALAM CHITTUR, PALAKKAD.** **4. SARABEEBI, W/O.SYED MOHAMMED PLACHIMADA COLONY, KANNIMARI POST, VANDITHAVALAM CHITTUR, PALAKKAD.** **5. JAMEELA, D/O.SYED MOHAMMED PLACHIMADA COLONY, KANNIMARI POST, VANDITHAVALAM CHITTUR, PALAKKAD.** **R2 BY ADV. SRI.S.HARISHARMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.444 of 2008 ....................................................... Dated this the 3[rd] day of March, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The wife and children of the deceased Shahul Hameed , who are claimants 1 to 3 in O.P.(MV)No.1257/2002 on the file of the Motor Accidents Claims Tribunal, Palakkad are the appellants herein. The claim petition was filed by the appellants along with respondents 4 to 6, who are the parents and minor sister of deceased Shahul Hameed, who died in a motor accident occurred on 9.10.2002 while he was riding his TVS 50 motor cycle bearing with registration No.TN-41P/9739 it collided with an auto rickshaw came from the opposite direction, in which he sustained injuries and succumbed to injury later while he was in the hospital. According to the claimants, the accident occurred due to the negligent driving of the auto rickshaw owned and driven by the first respondent and insured with the second respondent. The deceased was aged 29 years and a fish vendor by profession and getting a monthly income of Rs.4,500/- per month and they claimed a compensation of Rs.10 lakhs, but restricted their claim to Rs. 6 lakhs on various heads. 2. The first respondent remained absent. The second M.A.CA.No.444/08 2 respondent entered appearance and filed written statement admitting insurance of the auto rickshaw involved in the accident, but they contended that there was no negligence on the part of the first respondent. According to the second respondent, the accident occurred due to the negligence of the deceased himself and the first respondent has not produced the driving licence and also the compensation claimed is exorbitant and they prayed for dismissal of the application. 3. The first petitioner was examined as PW1 and Exts.A1 to A8 were marked on her side. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the auto rickshaw by the first respondent and since the second respondent had not proved violation of the policy conditions, their contention that they were not liable to pay the compensation has been rejected by the tribunal and made them also liable to pay the compensation and assessed loss of dependency as Rs.2,88,000/- and added a lump sum of Rs.14,500/- under other heads and awarded a total compensation of Rs.3,02,500/- in favour of claimants 1 to 5 alone and denied compensation to the 6[th] claimant on the ground that she is not the legal heir of the deceased. The amount was also apportioned by providing Rs.75,000/- each to M.A.CA.No.444/08 3 the claimants 4 and 5 and the balance amount was directed to be shared between the claimants 1 to 3 equally. Dissatisfied with the quantum of compensation and awarding of compensation to the parents, the claimants 1 to 3 have filed the above appeals who are wife and children of the deceased. 4. Heard Sri. A.R. Gangadas, learned counsel appearing for the appellants and Sri.S.Harisharma, learned counsel appearing for the insurance company. Others did not appear. Notice to the first respondent was dispensed with as insurance company has admitted their liability to indemnify the first respondent and since the third respondent is no more, who is the father of the deceased, and wife and daughter is already on the party array, no need to implead other legal heirs. 5. Counsel for the appellants submitted that the deceased was a fish vendor by profession and getting a monthly income of Rs.4,500/- per month, but the court below arbitrarily fixed the monthly income as Rs.2,000/- per month, which is very low. Further, no future prospects have been taken into consideration for the purpose of assessing compensation. The court below was not justified in awarding only Rs.14,500/- under other heads. In fact they are entitled to get compensation for loss of consortium, love and M.A.CA.No.444/08 4 affection, pain and suffering suffered by the deceased, funeral expenses etc which has not been awarded. As such the court below was not justified in awarding meagre amount as compensation and they are entitled to get enhancement on all other heads. Further, considering the nature of dependency, apportionment made by the tribunal is also not proper. 6. On the other hand, learned counsel for the insurance company has submitted that as per _Sarla Verma (Smt) and others v. Delhi Transport Corporation and another (2009(6)SCC 121)_ the multiplier is only 17 and 18 as taken by the tribunal. The tribunal had only deducted one third, in fact it would be one fourth in view of _Sarla Verma's case_ (supra). The tribunal had considered all the aspects in the right perspective and the total compensation awarded is just and proper. 7. Though learned counsel for the appellants submitted that the deceased is getting Rs.4,500/- per month as a fish vendor, no document has been produced to prove this fact. The accident in this case occurred on 9.10.2002. He was aged 29 years and he was maintaining a family consists of wife and two minor children and also aged parents and a minor sister at the time of his death. Even in 1994, in the second schedule to the Motor Vehicles Act the M.A.CA.No.444/08 5 income of a non earning member was fixed at Rs.15,000/- per annum. Considering this aspect, the amount of Rs.2,000/- fixed by the tribunal as monthly income for a 29 years old man appears to be on the lower side. Instead we are taking Rs.2,500/- per month. Further in _Rajesh v. Rajbir Singh [2013(3) KLT 89(SC)],_ and _Amrit Bhanu Shali & Others v. National Insurance Company Ltd. & Others (2012 (11) SCC 738)_ the Supreme Court has held that even in cases where the deceased is not having any permanent income, future prospects have to be taken into consideration and up to the age of 30, 50% will have to be taken for future prospects. As per _Sarla Verma's case_ (supra), the multiplier applicable to the age group of 29 will be 17. In this case, number of dependents are six. So the tribunal was not justified in deducting one third for the personal expenses of the deceased and as per _Sarla Verma's case_ (supra) in cases where the dependents are between 4 and 6, one fourth will have to be deducted for the personal expenses of the deceased. If a recalculation is made on the basis of above materials, the claimants will be entitled to get an amount of Rs.5,73,750/(2500x150%=3750x12x17x75%) instead of Rs.2,88,000/- awarded by the tribunal and thereby the claimants will be entitled to get an additional amount of Rs.2,85,750/- under the head loss of M.A.CA.No.444/08 6 dependency and we award the same under this head. The tribunal had not awarded any compensation under the head loss of consortium, love and affection, funeral expenses, pain and sufferings, loss of estate etc in stead of awarded only a consolidated amount of Rs.14,500/- which is unsustainable in law. In a case where the claimants are claiming compensation under section 166 of the Motor Vehicle Act, the tribunal was not justified in applying second schedule to the Act and awarding a consolidated amount on these heads. In the decision reported in Rajesh's case (supra), the Supreme Court has held that the wife is entitled to consortium of at least Rs. 1,00,000/- unless other materials are available. In this case, there is no evidence to show that she is remarried after the death of her husband. She is entitled to get Rs.1,00,000/- as compensation under the head loss of consortium and we award that amount under that head as she was aged only 21 years at the time of death of her husband and not remarried. In _Kala Devi v. Bhagwan Das Chauhan (2015 (2) SCC 771)._ the Supreme Court has held that in the case of minor children, for loss of love and affection of either of the parents, they will be entitled to get an amount of Rs.1,00,000/- each if there is more than one minor child. Here there are two minor children who are aged only 5 and 2 M.A.CA.No.444/08 7 ½ years respectively at the time when they lost their father. They will have to be without love and affection of the father for the remaining period of their life. So considering this aspect, we feel that Rs. 1,00,000/- each can be awarded as compensation for loss of love and affection to the claimants 2 and 3. In the same decision, the Supreme Court has held that parents who are also entitled to get compensation for love and affection at the rate of Rs.50,000/- each. So claimants 4 and 5 in the lower court, who are respondents 3 and 4 before this court are also entitled to get Rs.50,000/- as compensation for loss of love and affection of their son and we award the same under that head. The tribunal had not awarded any amount for pain and sufferings. A conventional amount of Rs.10,000/- can be awarded under the head pain and suffering suffered by the deceased. No amount was awarded under the head funeral expenses. In Rajesh's case (supra), the Supreme Court has held that in the absence of any evidence to prove higher expenses for funeral, a minimum of Rs.25,000/- will be awarded, So we award Rs.25,000/- under the head funeral expenses. We also award a conventional amount of Rs.10,000/- for loss of estate. In all the appellants will be entitled to get a sum of Rs.7,30,750/- as additional compensation, out of the amount of Rs.14,500/- awarded by the M.A.CA.No.444/08 8 tribunal as consolidated amount on conventional heads has to be deducted and thereby the claimants will be entitled to get an additional compensation of Rs.7,16,250/- as additional compensation. Out of this amount, the surviving parents namely the mother will be entitled to get an additional amount of Rs.1,00,000/- as she lost her husband also during the pendency of the proceedings. The tribunal had not awarded any compensation to the 6[th] claimant on the ground that she is not the legal heir. It may be mentioned here that since all the claimants have jointly filed the petition the question as to whether the 6[th] respondent was depending the income of the deceased at the time of death is clear from this. She is aged 15 years at the time when she lost her brother. She will be entitled to get some amount as compensation for loss of love and affection and dependency. Considering this aspect, we feel that an amount of Rs. 1,00,000/- can be awarded out of enhanced compensation awarded to the 6[th] claimant who is the 5[th] respondent before this court. The balance amount will be shared between the appellants who are claimants 1 to 3 equally and the amount due to the minors shall be deposited in a nationalized bank till they attain majority with liberty for the mother, the first appellant to withdraw the periodical interest accrued for meeting their expenses. The second respondent is M.A.CA.No.444/08 9 directed to pay the compensation at the rate of 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit the amount. Out of the amount due to the first claimant, wife of the deceased, an amount of Rs,2,00,000/be permitted to be withdrawn and the balance amount will be deposited for a period of five years with liberty for her to withdraw periodical interest and also liberty to apply for withdrawal of the amount, if necessity arises and in such circumstances, the tribunal is at liberty to consider the necessity and pass appropriate orders regarding withdrawal of the amount. The second respondent insurance company is also directed to issue cheque for the additional court fee, if any payable over and above Rs.6,00,000/-restricted by the claimants in the tribunal and they need only deposit the balance amount towards the amount payable to the claimants and respondents 5 and 6. With the above modifications of the amount awarded by the tribunal, the appeal is allowed in part and disposed of. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- ## **K. RAMAKRISHNAN, JUDGE** cl /true copy/ P.S to Judge