Ponnu and others v. N.P. Muhammad Ali and Abdul Rasheed and United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **&** **THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** **THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933** **MACA.No. 1416 of 2011()** **-----------------------------------** **OPMV.802/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** **....................** ## **APPELLANTS/PETITIONERS:** **------------------------------------------** **1. PONNU, S/O. VELAYUDHAN, AGED 73 YEARS, RESIDING AT KANGANATH VEEDU, KIZHAKKEMURI, KANJIKKODE, P.O., PALAKKAD.** **2. PETTA, W/O. PONNU, AGED 63 YEARS, RESIDING AT KANGANATH VEEDU, KIZHAKKEMURI, KANJIKODE P.O., PALAKKAD.** **3. SHYLAJA, D/O. PONU, AGED 43 YEARS, RESIDING AT KANGANATH VEEDU, KIZHAKKEMURI, KANJIKKODE, P.O., PALAKKAD.** **4. KALAMANI, D/O.PONU, AGED 40 YEARS, RESIDING AT KANGANATH VEEDU, KIZHAKKEMURI, KANJIKODE P.O., PALAKKAD.** **5. BAVITHA, D/O. PONNU, AGED 27 YEARS, RESIDING AT KANGANATH VEEDU, KIZHAKKEMURI, KANJIKODE P.O., PALAKKAD.** - **BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** ## **RESPONDENTS:** **----------------------** **1. N.P. MUHAMMAD ALI, S/O. ASSANAR, AGE NOT KNOWN, NEDUNGOTTU VEEDU, PARAKKODE, KALLADIKKODE P.O. 678596 PALAKKAD (R.C.OWNER OF TEMPO VAN KL 10-4335).** ## **MACA.No. 1416 of 2011()** **2. ABDUL RASHEED, S/O. USMAN, AGED 26 YEARS, NEDUNGOTTUPARAMBU VEEDU, MELEMADAM, KALLADIKKODE P.O. 678596 PALAKKAD ( DRIVER OF TEMPO VAN KL 10-4335).** ## **3. UNITED INDIA INSURANCE COMPANY LIMITED,** **PAZHAYERI TOWER, KODATHIPPADADI, MANNARKKAD P.O., PALAKKAD. (INSURER OF TEMPO VAN NO.KL-10/4335)678582** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **R. BASANT & M.C.HARI RANI, JJ.** **-----------------------------------------------------------------M.A.C.A. No. 1416 of 2011 ------------------------------------------Dated this the 1[st ] day of September, 2011** ## **JUDGMENT** ## **R. BASANT,J** Claimants are the appellants. They are the parents aged 70 years and 60 years and siblings(sisters) aged 40 years, 37 years and 24 years of a deceased person aged 32 years. The deceased suffered injuries in a motor traffic accident on 24.03.2008. He succumbed to the injuries while undergoing treatment at the hospital on 25.03.2008. The injuries were suffered in Kanjikode in Palakkad District. He expired at the hospital at Thrissur. Against a total claim of Rs.6.5 lakhs, the Tribunal awarded an amount of Rs.1,42,500/- as per the details given in the impugned award, which we extract below: |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_awarded_**|**_Basis - vital_**<br>**_details in a_**<br>**_nut shell_**| |---|---|---|---| |1|Loss of earning||| |2|loss of earning|Not allowed|| ||partial||| |3|Medical<br>and<br>Miscellaneous<br>expenses|Rs.8500.00|On a just<br>estimate| **M.A.C.A. No. 1416 of 2011 2** |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_awarded_**|**_Basis - vital_**<br>**_details in a_**<br>**_nut shell_**| |---|---|---|---| |4|Future treatment|Not allowed|| |5|Bystander expenses|Not allowed|| |6|Transportation expenses|Rs.2,000/-|On a just<br>estimate| |7|Extra nourishment|Not allowed|| |8|Damage to clothing|Not allowed|| |9|Pain and suffering|Not allowed|| |10|Loss of dependency|Rs.1,20,000/-|On a just<br>estimate| |11|Loss of consortium/pecuniary loss||| |12|Loss of love and affection|Rs.10,000/-|On a just<br>estimate| |13|Loss of estate||| |14|Loss or reduction in earning<br>capacity|Not allowed|| |15|Loss<br>of<br>amenities<br>and<br>Conveniences etc|Not allowed|| |16|Any other heads(Compensation<br>for temporary disability, loss of<br>expectation) Mental shock and<br>agony to the petitioner.<br>Funeral expense|Rs.2,000|On a just<br>estimate| ||Total|Rs.1,42,500/-<br>= = = = = =|Rs.1,42,500/-<br>along<br>with<br>interest at the<br>rate of 7.5 %<br>p.a.<br>from<br>26.08.2008 till<br>realization| ## **M.A.C.A. No. 1416 of 2011 3** 2. We have heard the learned counsel for the appellants and the learned counsel for the Insurance Company. The Insurance Company has been made entirely liable under the impugned award to satisfy the award. 3. Challenge is raised only on the ground that the quantum of compensation awarded is not adequate. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. 4. First of all, it is contended that the Tribunal had gone grossly wrong in taking into consideration the multiplier applicable to the age of the parents. The parents are aged 60 years and 70 years. The Tribunal took into consideration the age of the mother(60 years) and reckoned the multiplier as 8. The learned counsel for the appellants advances an argument that the Tribunal ought to have reckoned the age of the deceased alone as relevant to ascertain the multiplier. He contends that following the decision in **Sarla Verma v. Delhi** **Transport Corporation[(2009) 6 SCC 1211]** only the age ## **M.A.C.A. No. 1416 of 2011 4** of the deceased is relevant and age of the claimant should not have been taken into consideration while attempting to ascertain the multiplier. 5. We have considered the question in detail in the judgment dated 1.09.2011 in **M.A.C.A. No.307/2011 (Sumathikutty v. Manoj and others).** We have taken the view that where the older dependent/claimant stakes a claim for compensation in respect of the death of a younger deceased person, it is the age of the older claimant that has to be taken into consideration to ascertain the multiplier. We have discussed the question in detail in the said judgment. It is unnecessary for us to advert to that aspect in greater detail in this judgment. 6. The learned counsel for the appellants submits that the third claimant is an unmarried sister of the deceased. She is the elder sister of the deceased. She was unmarried and along with her parents was completely dependent on the deceased, contends the learned counsel. In these circumstances, multiplier cannot be ascertained without taking into ## **M.A.C.A. No. 1416 of 2011 5** consideration, the dependency of the third claimant, contends the learned counsel. ## 7. In **Sarla Verma v. Delhi Transport Corporation** **[(2009) 6 SCC 1211]** the Supreme Court had considered the claims of siblings similarly placed. Unless there are valid reasons, the mother is to be reckoned as the dependent whose claim is to be satisfied by the respondents, it is held. This is no rule of universal application. In the facts and circumstances of this case, it is evident that the third claimant, unmarried elder sister of the deceased was also entirely depending on the deceased. We are in these circumstances, satisfied that in the peculiar facts and circumstances of this case and taking into consideration the evidence tendered by the third claimant/unmarried sister as PW1, this Court would be justified in taking into consideration the age of the said sister also while ascertaining the multiplier. The learned counsel for the appellants places reliance on the decision in **Somanathan and others v. District Insurance Officer and another [(2011) 3 SCC 566]** in support of this contention. The second claimant ## **M.A.C.A. No. 1416 of 2011 6** mother was aged 60 years , the Tribunal included the said claimant/mother in the age group of persons aged above 55 years, but not exceeding 60 years. The Tribunal took 8 as the multiplier. Evidently this was done by looking at the second vertical column of the table/chart under clause 1 of the second schedule. The learned counsel for the appellants points out that even going by Sarla Verma(supra) 9 (and not 8) should have been taken as the multiplier applicable. We find merit in that contention. In this case, we note that in addition to the parents, the unmarried sister of the deceased was also depending on the deceased. Due allowance can be given to such dependency. We are in these circumstances of the opinion that 11 can safely be reckoned as the multiplier. 8. We now come to dispute about the monthly income of the deceased. The deceased is shown to be a manual worker employed by a company. He was allegedly earning an income of Rs.6,000/- per mensem. No satisfactory and acceptable data was produced in support of this assertion. The Tribunal, in these circumstances, reckoned Rs.2,500/- as the monthly ## **M.A.C.A. No. 1416 of 2011 7** income. The learned counsel for the appellants submits that even assuming that there is no authentic data to prove the income of the deceased, reasonable inferences should have been drawn by the Tribunal. The learned counsel points out the presumption of prudence permitted under clause 6 of the second schedule, which presumption was introduced into law in 1994 ie, 14 years prior to the date of the accident in this case. Learned counsel for the appellants also relies on the decision in ## **Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218)** under which the Supreme Court had accepted that even for a non earning home maker/house wife Rs.3,000/- can be assumed to be the monthly income. The learned counsel further relies on the decision of the Supreme Court in **Laxmi** ## **Devi and others v. Mohammad Tabbar and another(2008** **ACJ 1488),** in which the Supreme Court held that Rs.3,000/per mensem can safely be reckoned as the monthly income of even an unskilled manual worker. We are in these circumstances, satisfied that it would be absolutely reasonable to assume Rs.3,500/- as the monthly income of the deceased. **M.A.C.A. No. 1416 of 2011 8** 9. The learned counsel for the appellants then contends that no amount has been awarded under the head of pain and suffering. The deceased had suffered injuries including grievous fatal injuries. He had lived in pain for a period of one day before he succumbed to injuries. We are satisfied that compensation is liable to be awarded under the head of pain and suffering for the trauma endured by the deceased prior to his death. 10. We have evidence to show that the deceased who suffered the injuries at Kanjikode was rushed to a hospital in Thrissur. Only an amount of Rs.10,500/- has been awarded under the head of medical and miscellaneous expenses and transportation. The deceased had to be transported to the hospital and the body had be transported back to the native place. Expenses had to be incurred for medical treatment. Taking all the relevant circumstances, we are satisfied that the amount awarded under the head of medical and miscellaneous expenses and transportation (8500+2000) deserves to be enhanced. **M.A.C.A. No. 1416 of 2011 9** 11. The learned counsel for the appellants then contends that the amount awarded under the head of funeral expenses (Rs.2,000) is too low and unrealistic. We agree. We are satisfied that a higher amount deserves to be awarded under the head of funeral expenses. 12. Under the head of loss of estate no amount has been granted. This is an omission, it is contended. We agree that an appropriate amount can be awarded under the head of loss of estate also. 13. The above discussions lead us to the conclusion that the appellants are entitled for a further amount of Rs.1,33,500/- in addition to the amount already awarded by the Tribunal. Medical and Miscellaneous expenses including transportation (15,000 minus 10500) :Rs. 4,500.00 Compensation for pain and suffering :Rs. 10,000.00 (No amount awarded by the Tribunal) Funeral expenses (5000 minus 2000) :Rs. 3,000.00 ## **M.A.C.A. No. 1416 of 2011 10** Loss of dependency :Rs.1,11,000.00 (3500X12X1/2X11= 2,31,000 minus 1,20,000) Loss of estate ::Rs. 5000.00 (No amount awarded conventional amount awarded by us) ------------------Total Rs. 1,33,500.00 ==== = = = = = ## 14. We are not satisfied that the amount awarded under any other heads deserves appellate interference. 15. In the result: ## a. This appeal is allowed in part. b. The appellants(claimants 1 to 3) are found entitled to a further amount of Rs.1,33,500/(Rupees one lakh thirty three thousand and five hundred only)in addition to the amount awarded by the Tribunal. c. We make it clear that the entire amount of compensation shall carry interest at the rate ## **M.A.C.A. No. 1416 of 2011 11** and for the period specified by the Tribunal in the impugned award. d. All other directions of the Tribunal are upheld. ## **R. BASANT, JUDGE** **M.C.HARI RANI, JUDGE** **ln**