Omana, Soumya, and Thanka (through their mother) v. Ramesh Babu, M. Ravikumar and United India Insurance Co. Ltd. (MACA No. 1041 of 2011)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939 MACA.No. 1041 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1331/2007 of MACT, IRINJALAKUDA DATED 24-02-2011 APPELLANT(S)/PETITIONERS: ------------------------ 1. SMT. OMANA, - W/O. LATE SUBRAMANIAN,VIYYATH HOUSE, PACHALIPPURAM, AMBALLOOR VILLAGE. 2. MISS SOUMYA, - D/O.LATE SUBRAMANIAN,VIYYATH HOUSE, PACHALIPPURAM,, AMBALLOOR VILLAGE. 3. SMT. THANKA, M/O.LATE SUBRAMANIAN,VIYYATH HOUSE, PACHALIPPURAM, AMBALLOOR VILLAGE. BY ADV. SRI.V.BINOY RAM RESPONDENT(S):RESPONDENTS ------------------------------------ 1. RAMESH BABU, S/O. LATE LODARPILLAPPA, VENKATTAGIRI, KOTEDAR CHINTHAMANI, KOLAR DISTRICT, KARNATAKA-563101. 2. M. RAVIKUMAR, S/O. LATE ANJANEYAPPA, ANJANEYAPPA HOUSE, CHOUDAREDDI PALLYA, 1ST CROSS, CHINTHAMANI NAGARA, KOLAR DISTRICT, KARNATAKA-563101. 3. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., P.B.NO. 16, POLYTECHNIC ROAD, CHINTHAMANI, KOLAR DISTRICT, KARNATAKA-563101. R3 BY ADV. SRI.S.ARUN RAJ THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.1041 OF 2011 ==========================** Dated this the 20[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ The legal heirs of one Subramanian who were the petitioners in O.P.(MV).No.1331 of 2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakkuda filed this appeal seeking enhancement of the quantum of compensation granted by the Tribunal as per the award passed thereon. They are respectively the wife, daughter and mother of the deceased Subramanian. The accident in which Subramanian lost his life had occurred on 26.10.2006 at 10 p.m. He was a pedestrian. While he was walking alongside N.H.17, he was knocked down by a Tata Sumo vehicle bearing Reg.No.KA-07/M 752. He succumbed to the injuries sustained in the accident on the very same day itself. The claim petition was filed under section 166 of the Motor Vehicles Act seeking a total compensation of **M.A.C.A.1041/2011** 2 Rs.5,91,000/- for the death of Subramanian. The Tribunal, as per the impugned award, had awarded a total compensation of Rs.2,69,500/with interest at the rate of 7% per annum from the date of the petition till realisation with proportionate cost. It is seeking enhancement of the quantum of compensation that this appeal has been filed 2. We have heard the learned counsel for the appellants and the learned counsel for the third respondent insurance company. Though notice was served on first and second respondents, they have not chosen to enter appearance and contest the matter. In this context, it is relevant to note that based on the finding that the second respondent was not having driving license at the time of the accident, the Tribunal had granted liberty to the third respondent-insurer to recover the amount from the first respondent. There is no dispute regarding the cause of the accident as also the liability of the third respondent to indemnify the first respondent who is owner of the offending vehicle. Hence, the only question to be considered in this appeal is whether or not the appellants are entitled to get enhanced compensation? **M.A.C.A.1041/2011** 3 3. It is submitted by the learned counsel for the appellants that the Tribunal had erroneously estimated the monthly income of the deceased. In the claim petition, it was averred that the deceased was a self employed person. He was indulged in repairing of tyre and tubes and its vulcanisation and he was earning a monthly income of Rs.4,500/-. Disregarding the said averments, the Tribunal had fixed the monthly income of the deceased notionally as Rs.2,000/-. The further grievance of the appellants is that the compensation awarded by the Tribunal towards 'loss of consortium', 'loss of love and affection' and 'funeral expenses' are on the lower side. 4. The learned counsel for the third respondent submitted that the Tribunal had granted just compensation and therefore, no appellate interference is called for. 5. Firstly, we will consider the question whether the fixation of monthly income of the deceased notionally by the Tribunal as Rs.2,000/- invites interference. We do not find any reason to hold that the Tribunal had gone wrong in fixing the monthly income notionally **M.A.C.A.1041/2011** 4 as the appellants had failed to establish their averments regarding occupation and income of the deceased. However, taking into account the fact that the accident had occurred in the year 2006 and at the time of the accident, the deceased was aged 43 years, we are of the considered view that the monthly income fixed by the Tribunal is on the lower side. In the claim petition, the appellants claimed that the deceased was earning a monthly income of Rs.4,500/-. In the light of the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236],** we do not find any reason to disbelieve the version of the appellants that the deceased was earning Rs.4,500/-. Accordingly, we re-fix the monthly income of the deceased as Rs.4,500/-. The Tribunal had adopted the multiplier as '15'. Taking into account the age of the deceased at the time of the accident and the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** we adopt the multiplier as '14'. The Tribunal has rightly deducted 1/3[rd] of the income taking into account the number of **M.A.C.A.1041/2011** 5 surviving dependent family members. In short, the compensation awarded under the head 'loss of dependency' has to be re-assessed by substituting the re-fixed multiplicand and multiplier. On such reassessment, the amount payable towards 'loss of dependency' will come to Rs.5,04,000/- (4500x12x14x2/3). The Tribunal had awarded a sum of Rs.2,40,000/- under the said head. After deducting the said amount, the appellants are entitled to get an additional compensation of Rs.2,64,000/-. The Tribunal had granted only an amount of Rs.4,000/- towards 'funeral expenses' and only an amount of Rs.10,000/- towards 'loss of consortium'. The first appellant was aged only 41 years at the time of death of her husband. In such circumstances, we are inclined to grant Rs.70,000/- towards 'loss of consortium' and an additional sum of Rs.11,000/- towards 'funeral expenses'. Towards 'loss of love and affection', the Tribunal had awarded a sum of Rs.10,000/-. Respondents 2 and 3, who are respectively the daughter and mother of the deceased, were aged 22 years and 69 years at the time of his death. In such circumstances, we **M.A.C.A.1041/2011** 6 are inclined to grant an additional sum of Rs.40,000/- under the said head. We do not find any reason to interfere with the compensation awarded under other heads. 6. In the result, the appellants are entitled to get an additional compensation of Rs.3,85,000/-. It is granted. The additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. It is made clear that the first appellant alone is entitled to get additional compensation granted under the head 'loss of consortium' and appellants 2 and 3 are entitled to get the additional compensation granted under the head 'loss of love and affection'. The third respondent insurance company is directed to deposit the said amount of additional compensation along with interest thereon within two months from the date of receipt of a copy of this judgment. Out of the additional compensation granted, the third appellant shall be given an amount of Rs.25,000/- in addition to her share in the compensation under the head 'loss of love and affection'. The balance amount, viz., the amount less the amount **M.A.C.A.1041/2011** 7 allotted to appellants 1 to 3 as mentioned above, shall be apportioned between appellants 1 and 2 in the ratio 60:40. It is made clear that we have not interfered with the liberty granted to the third respondent to effect recovery of the amount paid to satisfy the impugned award from the first respondent. The third respondent will have the same liberty as relates the amount payable under this judgment against the first respondent. Appeal is disposed of. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1041/2011** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.1041/2011** 9 **JUDGMENT September, 2010**