OPMV.1390/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE R.BASANT** **& THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933** **MACA.No. 1436 of 2011()** **------------------------------** ## **OPMV.1390/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA** **....................** ## **APPELLANT(S): PETITIONERS** **-----------------------------------** **1. A.KUNHIKANNAN, S/O.LATE A KELAPPAN, AGED 60 YEARS, AKARAMKULANGARA THIROOR PO, NARIPPATTA, VIA KAKKATTIL, KOZHIKODE.** **2. A.PUSHPA, W/O.A KUNHIKANNAN AGED 50 YEARS, AKARAMKULANGARA HOUSE,THIROOR PO, NARIPPATTA, VIA KAKKATTIL, KOZHIKODE.** **3. NAMITHA P.P,W/O.LATE PIYESH AGED 24 YEARS, AKARAMKULANGARA HOUSE, THIROOR PO, NARIPPATTA, VIA KAKKATTIL, KOZHIKODE.** **BY ADV. SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT(S): RESPONDENTS** **--------------------------------------** **1. K.P.SURESH BABU, S/O.KUMARAN, KATTIL PARAMBIL HOUSE OLAVILAM, PERINGATHOOR, THALASSERI, KANNUR DISTRICT - 670 102.** **2. MAHESH.P, S/O GOVINDAN OLAVILAM P.O., CHOCKLI.PERINGATHOOR, VATAKARA-673 102** **3. THE ORIENTAL INSURANCE CO. LTD KPK RAILTO,NEAR KOTACHERY PUMP THANA PO, KANNUR - 670 003.** **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **R.BASANT & K.SURENDRA MOHAN, JJ** --------------------------------------------CMA No.2194 of 2011 & MACA No.1436 of 2011 --------------------------------------------- Dated this the 3[rd] day of November 2011 ## **ORDER/ JUDGMENT** ## CMA No.2194 of 2011 Heard. This petition is to condone the delay of 94 days in filing the appeal. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company which has been made entirely liable under the impugned award to satisfy the award. We take a lenient view. Petition allowed. Delay condoned. ## MACA No.1436 of 2011 Claimants are the appellants. They are the wife and parents of the deceased, a 29 year old young business man who succumbed to injuries suffered in a motor accident on 7.5.2007. It was asserted that his monthly income was Rs.15,000/-. Against a total amount of Rs.10 lakhs claimed, the Tribunal awarded only an amount of Rs.7,39,000/- as compensation, as per the details which are given in ## MACA No.1436/2011 2 ## paragraph-63 of the impugned award which we extract below: |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_claimed_**|**_Amount_**<br>**_awarded_**|**_Basis-vital details_**<br>**_in a nut shell_**| |---|---|---|---|---| |1|Transportation expenses|--|2,000/-|Rs.2,000/-<br>(No<br>bills produced)| |2|Loss of dependency|2,00,000/-|7,14,000/-|Rs.5,000x2/3x<br>12x17| |3|Loss of consortium|5,00,000/-|10,000/-|Couple aged 29<br>and 24 years at the<br>time of death| |4|Loss of love and affection|2,00,000/-|5,000/-|Widow+aged<br>mother+aged<br>father| |5|Loss of estate|8,00,000/-|5,000/-|| |6|Funeral expenses|1,00,000/-|3,000/-|| ||**Total**||**7,39,000/-**|Rs.7,39,000/- with<br>interest at the rate<br>of 7.5% per<br>annum<br>from<br>18.12.2008<br>till<br>realisation.| ## 2. We have heard the learned counsel for the appellants and the learned counsel for the Insurance Company which has been made entirely liable under the impugned award. The challenge is raised only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the quantum of monthly income reckoned by the Tribunal is too MACA No.1436/2011 3 inadequate. Only an amount of Rs.5,000/- has been accepted as the monthly income. Precise and authentic evidence about the quantum of monthly income was, of course, not made available. However, there was evidence to show that the deceased, a young business man aged 29 years, was a partner in a Drug Store. He was also a partner of a Cine Film Theatre. Except this, there is no convincing evidence to indicate the quantum of his monthly income. The Tribunal was in these circumstances left to draw reasonable inferences. The Tribunal, on the totality of inputs, drew the inference of prudence that the deceased must have been earning an income of Rs.5,000/- per mensem. The Tribunal, after providing for living expenses of the deceased, reckoned Rs.3500/- as the monthly contribution of the deceased to his family. The learned counsel for the appellants argues that the quantum of monthly income and contribution reckoned by the Tribunal is inadequate. 4. As indicated earlier, there is no specific evidence to come to any firm and authentic conclusion about the probable monthly income of the deceased. However, we get an idea about the nature of his business (income earning activity) from the MACA No.1436/2011 4 available inputs. He was a partner in two business activities. He was a young man aged 29 years. He had got married very recently - two months prior to the accident. The learned counsel for the appellants points out that the death had taken place in 2007. The counsel relies on the presumption of prudence available under clause-6 of the second schedule to the Motor Vehicles Act where under even a non-earning person is assumed to have an income of Rs.1250/- per mensum as early as in 1994. The counsel also relies on the precedents in **Lakshmi Devi** V **Mohammed Tabbar** (2008ACJ 1488) and **Latha Wadhwa** v **State of Bihar** (AIR 2001 SC 3218) which enables the Courts/Tribunals to draw the inference of prudence that even a non-earning home maker as also an unskilled manual worker can be assumed to earn an income of Rs.3,000/-. In the light of the materials available, we are satisfied that a higher monthly income can safely be assumed. Taking all the relevant inputs into account, conscious of the fact that authentic data is not made available to the court, we are of the opinion that an amount of Rs.6500/- can be assumed to be the monthly income of the deceased for the purpose of calculating loss of dependency. In this context, we note that he was aged only 29 years and it is MACA No.1436/2011 5 very reasonable to assume that his monthly income must have increased over the years. Taking into account all these circumstances, we accept Rs.6500/- as the multiplicand. 5. It is then contended that the quantum of compensation awarded under the head Loss of Consortium (Rs.10,000/-) is painfully low. We agree and we are satisfied that Rs.25,000/can be awarded under the head of Loss of Consortium for the young third claimant, aged 24 years, for the loss of her spouse aged 29 years. For loss of love and affection, only an amount of Rs.5,000/- has been awarded. We agree that the amount of compensation under that head can be enhanced to Rs.15,000/-. No amount is seen awarded under the head of pain and suffering. We are satisfied that an amount of Rs.10,000/deserves to be awarded under that head. For funeral expenses, the Tribunal has awarded only an amount of Rs.3,000/-. We are satisfied that an amount of Rs.5,000/- can safely be awarded as compensation payable under that head. For loss of estate, only an amount of Rs.5,000/- has been awarded. Considering the totality of inputs, we are satisfied that quantum under that head can also be enhanced to Rs.10,000/-. 6. The above discussions lead us to the conclusion that the MACA No.1436/2011 6 appellant is entitled to a further amount of **Rs.2,12,000/-** (Rupees Two Lakh Twelve Thousand only) as shown below, as compensation in addition to the amount awarded by the Tribunal. |**_Sl.No_**||**_Amount_**| |---|---|---| |1|Loss of consortium|Rs.15,000(Rs.25,000 minus<br>Rs.10,000)| |2|Loss of love and affection|Rs.10,000/- (Rs.15,000/-<br>minus Rs.5,000/-| |3|Pain and suffering|Rs.10,000/-(No amount is<br>awarded bythe Tribunal)| |4|Funeral expenses|Rs.2,000/-(Rs.5,000/-<br>minus Rs.3,000/-)| |5|Loss of estate|Rs.5,000/- (Rs.10,000/-<br>minus Rs.5,000/-)| |6|Loss of dependency|Rs.1,70,000/-<br>(6500x12x2/3x17=8,84,000<br>minus 7,14,000/-)| ||**Total**|**Rs.2,12,000**| 7. The learned counsel for the appellant points out that proportionate cost has not been awarded as held in **Jeena** v **Satheesh Babu** (2011 (3) KLT 943). 8. We are satisfied that proportionate cost on the entire amount of compensation is liable to be awarded to the appellants/claimants as held in **Jeena** v **Satheesh Babu** (2011 MACA No.1436/2011 7 (3) KLT 943). 9. In the result, a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of **Rs.2,12,000/-** (Rupees Two Lakh Twelve Thousand only) in addition to the amount awarded by the Tribunal. c) We make it clear that the appellants are entitled to interest on the entire amount of compensation at the rate and for the period as directed by the Tribunal in the impugned award. d) We further direct that proportionate cost in the proceedings before the Tribunal be paid to the appellants on the entire amount of compensation as held in **Jeena** v **Satheesh Babu** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. ## **sd/- R.BASANT, JUDGE** **sd/- K.SURENDRA MOHAN, JUDGE** css/ true copy P.S.TO JUDGE