P.S. Shine and others v United India Insurance Co Ltd (MACA Nos. 2768 of 2015 & 2771 of 2015)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937 MACA.No. 2768 of 2015 () ------------------------- AGAINST THE AWARD IN OPMV 1650/2013 of MOTOR ACCIDENTS CLAIMS TRIBUNAL ., ERNAKULAM DATED 17-04-2015 APPELLANTS/PETITIONERS: --------------------------------------- 1. P S SHINE AGED 37 YEARS S/O LATE SARAVAN 2. P.S. SHARMILA, D/O LATE SARAVAN 3. P.S. SHANY, AGED 30 YEARS, - D/O LATE SARAVAN ALL THE APPELLANTSRESIDING AT NIKARTHIL HOUSE NAMBIAPURAM EAST, PALLURUTHY, COCHIN-682 006 BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. T.S JAYAKUMAR S/O SREEDHARAN 22/1451, KOTTAKKAL HOUSE, EDACOCHIN COCHIN-682 010 2. P.V. PAUL S/O VARGHESE PEEDIAKKAL HOUSE PERUMPADAPPU COCHIN-682 006 3. THE UNITED INDIA INSURANCE COLTD T.P. CELL, 4TH FLOOR, JOS TRUST BUILDING CHITTOOR ROAD, ERNAKULAM COCHIN-682 035 R3 BY ADV. SRI.A.R.GEORGE SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-01-2016, ALONG WITH MACA. 2771/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.Nos.2768 & 2771 OF 2015** **-------------------------------------------------DATED THIS THE 14[th] DAY OF JANUARY, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . The appellants are the claimants in OP(MV)Nos.1650/2013 and 1649/2013 on the file of the the Motor Accident Claims Tribunal, Ernakulam, applications filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of their parents aged 72 years and 62 years respectively, who sustained fatal injuries in a road accident occurred on 1.2.2013. On the date of accident, while the deceased were walking on the side of Thoppumpady- Edakochi road, a bus bearing registration No. KL-43/A-9783 owned, driven and insured by respondents 1 to 3 before the Tribunal came in a rash and negligent manner and hit them. They were taken to the Medical Trust Hospital, Ernakulam. Both of them succumbed to injuries on 2.2.2013. Claiming compensation for a total sum of 4,00,000/- on account of the₹ death of their father, the appellants filed OP(MV) No. 1650/2013 before the Tribunal. OP(MV) No.1649/2013, was filed claiming M.A.C.A.Nos.2768 & 2771/15 -2- compensation for a total sum of 5,00,000/- on account of the₹ death of their mother. 2. Before the Tribunal Exts.A1 to A13 were marked on the side of the appellants. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the lorry by the 2[nd] respondent driver and that the vehicle was insured with the 3[rd] respondent insurer. Therefore, the 3[rd] respondent insurer was directed to pay the amount of compensation to the appellants. In OP(MV) No. 1650/2013, the Tribunal awarded a total compensation of ₹3,09,000/- and in OP(MV)No.1649/2013, the Tribunal awarded ₹3,05,000/-, under different heads and directed the 3rd respondent insurer to deposit the said amount together with interest at the rate of 9% per annum from the date of petition till realisation. 4. Inadequacy of the compensation awarded by the Tribunal under different heads is the subject matter of these appeals. M.A.C.A.Nos.2768 & 2771/15 -3- 5. We heard arguments of the learned counsel for the appellants in these appeals and also the learned counsel for the 3[rd] respondent insurer. ## **- M.A.C.A.No.2768/2015:** 6. The pleadings and materials on record in OP(MV) No.1650/2013 would show that at the time of accident, the father of the appellants was aged 72 years. The appellants were aged 35, 32 and 28 years respectively. The appellants contended that at the time of accident, their father was working as a driver and earning a monthly income of 10,000/-. In order to substantiate₹ the said contention, they have produced Ext.A13 driving licence. On the ground that there was no evidence to prove the job and income of the deceased, the Tribunal awarded a consolidated sum of 1,00,000/- under the head future loss of contributions. ₹ 7. The accident occurred in the year 2013 and at the time of accident, the deceased was aged 72 years, who was holding Ext.A13 driving licence. Taking into consideration the facts and circumstances, as borne out from the pleadings and documents on record, we deem it appropriate to notionally fix the monthly income of the deceased as 6,000/-. As on the date of₹ M.A.C.A.Nos.2768 & 2771/15 -4- accident, the appellants who are the children of the deceased were aged 28 to 35 years and they cannot be treated as dependants of the deceased. In that view of the matter, after deducting one-half towards personal and living expenses of the deceased, the monthly contribution of the deceased can be reckoned as 3,000/- for the purpose of calculating compensation₹ towards loss of future contribution. Treating the multiplicand as 3,000/- and applying the multiplier of '5' applicable to the age group of the deceased, the compensation payable to the appellants under the head loss of future earning comes to ₹ **1,80,000/-** (i.e., 3000x12x5) as against 1,00,000/- awarded₹ by the Tribunal. 8. However, we notice that re-working of compensation is required under the heads pain and suffering and loss of love and affection. The Tribunal awarded a sum of 50,000/- towards₹ compensation for pain and suffering. The accident occurred on 1.2.2013 and the deceased succumbed to injuries on 2.2.2013, i.e., on the very next day itself. In such circumstances, the maximum compensation that could have been awarded under the head pain and suffering can only be 15,000/-. Therefore, we₹ M.A.C.A.Nos.2768 & 2771/15 -5- deem it appropriate to scale down compensation towards pain and suffering to 15,000/-. ₹ 9. Similarly, under the head loss of love and affection, the Tribunal awarded a sum of 1,00,000/-. ₹ **In Rajesh v. Rajbir Singh (2013 (3) KLT 89),** the Apex Court held that, in appropriate cases, a maximum of 1,00,000/- has to be awarded₹ under the head loss of consortium. In that case the deceased was aged 33 years and his wife was still young. In the aforesaid judgment, the Apex Court awarded a further sum of 1,00,000/-₹ towards loss of love and affection. A Division Bench of this Court after referring to the decision of the Apex Court in Rajesh's case (supra) has held in **Valsamma and another v. Binu Jose and others (2014 (1) KLT 10)** that, the age of the deceased, the age of the wife, the period for which consortium is lost, period of marital life, etc. are relevant factors to be considered while fixing compensation payable under the head loss of consortium. The above reasoning of the Division Bench is equally applicable while awarding compensation towards loss of love and affection. Therefore, the age of the deceased and that of the dependents is a relevant factor to be considered, while awarding compensation M.A.C.A.Nos.2768 & 2771/15 -6- for love and affection. 10. In the case on hand, the deceased was aged 72 years and his children, the appellants herein, were aged 28, 32 and 35 years respectively, who lost the support and guidance of their father. In view of the principle laid down by the Apex Court in the decision cited supra, which has been explained by this Court in Valsamma's case supra, we deem it appropriate to scale down the compensation awarded by the Tribunal towards loss of love and affection to 50,000/-.₹ 11. Towards medical expenses, the Tribunal awarded a sum of 29,000/- covered by Ext.A11 medical bill. The said₹ amount represents just and reasonable compensation under this head, which requires no enhancement in this appeal. 12. However, we find that the Tribunal awarded no amount towards damage to clothing. Considering the facts and circumstances of the case, we grant a sum of 1,000/- as₹ compensation under this head. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which require no enhancement in this appeal. 13. In the result, on reworking the compensation, the total M.A.C.A.Nos.2768 & 2771/15 -7- compensation payable to the appellants in M.A.C.A.No.2768/2015 under different heads is as follows; |**Heads**|**Amount of**<br>**compensation**<br>**payable( )**<br>**₹**| |---|---| |Transport to Hospital and back to home|5,000| |Damage to clothingand articles|1,000| |Medical expenses|29,000| |Funeral expenses|25,000| |Compensation for future loss of<br>contributions|1,80,000| |Compensation forpain and suffering|15,000| |Compensation for love and affection|50,000| |Total|3,05,000| 14. In the result, the appellants in M.A.C.A.No.2768 of 2015 are not entitled for any enhancement in the compensation awarded by the Tribunal. The appeal fails and the same is dismissed. 15. However, we make it clear that, if the amount of compensation awarded by the Tribunal, i.e., 3,09,000/- together₹ with 9% interest has already been paid to the appellants, the 3[rd] respondent insurer shall not be entitled to effect any recovery for the excess compensation of 4,000/- already paid to them.₹ ## **- M.A.C.A.No.2771/2015:** 16. In OP(MV)No.1649/2013, the appellants contended M.A.C.A.Nos.2768 & 2771/15 -8- that at the time of accident, their mother was working as a cook and earning a monthly income of ₹7,500/-. However, the appellants have not produced any documents to prove the income of their mother. In the absence of any reliable materials, the Tribunal awarded a consolidated sum of 1,00,000/- towards₹ future contributions. The accident occurred in the year 2013 and at the time of accident, the mother of the appellants was aged 62 years. Considering the facts and circumstances of the case, we deem it appropriate to notionally fix the monthly income of the deceased at 5,000/-. ₹ 17. As on the date of accident, the appellants who are the children of the deceased were aged 28 to 35 years and they cannot be treated as the dependants of the deceased. In that view of the matter, after deducting one-half towards personal and living expenses of the deceased, the monthly contribution of the deceased can be fixed as 2,500/- for the purpose of calculating₹ compensation towards loss of future contribution. Treating the multiplicand as ₹2,500/- and applying the multiplier of '7' applicable to the age group of the deceased, the compensation payable to the appellants under the head loss of future earning M.A.C.A.Nos.2768 & 2771/15 -9- comes to 2,10,000/- (i.e.,2500x12x7) as against 1,00,000/-₹ ₹ awarded by the Tribunal. 18. However, we notice that re-working of compensation is required under the heads pain and suffering and loss of love and affection. The Tribunal awarded a sum of 50,000/- towards₹ compensation for pain and suffering. The accident occurred on 1.2.2013 and the deceased succumbed to injuries on 2.2.2013, i.e., on the very next day itself. In such circumstances, the maximum compensation that could have been awarded under the head pain and suffering can only be 15,000/-. Therefore, we₹ deem it appropriate to scale down compensation towards pain and suffering to 15,000/-.₹ 19. Similarly, under the head loss of love and affection, the Tribunal awarded a sum of 1,00,000/-. ₹ **In Rajesh v. Rajbir Singh (2013 (3) KLT 89),** the Apex Court held that, in appropriate cases, a maximum of 1,00,000/- has to be awarded₹ under the head loss of consortium. In that case the deceased was aged 33 years and his wife was still young. In the aforesaid judgment, the Apex Court awarded a further sum of 1,00,000/-₹ towards loss of love and affection. A Division Bench of this Court M.A.C.A.Nos.2768 & 2771/15 -10- after referring to the decision of the Apex Court in Rajesh's case (supra) has held in **Valsamma and another v. Binu Jose and others (2014 (1) KLT 10)** that, the age of the deceased, the age of the wife, the period for which consortium is lost, period of marital life, etc. are relevant factors to be considered while fixing compensation payable under the head loss of consortium. The above reasoning of the Division Bench is equally applicable while awarding compensation towards loss of love and affection. Therefore, the age of the deceased and that of the dependents is a relevant factor to be considered, while awarding compensation for love and affection. 20. In the case on hand, the deceased was aged 62 years and her children, the appellants herein, were aged 28, 32 and 35 years respectively, who have lost the support and guidance of their mother. In view of the principle laid down by the Apex Court in the decision cited supra, which has been explained by this Court in Valsamma's case supra, we deem it appropriate to scale down the compensation awarded by the Tribunal towards loss of love and affection to 50,000/-.₹ 21. Towards medical expenses, the Tribunal awarded as M.A.C.A.Nos.2768 & 2771/15 -11- sum of 25,000/- covered by Ext.A10 medical bills. The said₹ amount represents just and reasonable compensation under this head, which requires no enhancement in this appeal. 22. However, we find that the Tribunal awarded no amount towards damage to clothing. Considering the facts and circumstances of the case, we grant a sum of 1,000/- as₹ compensation under this head. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which require no enhancement in this appeal. 23. In the result, on reworking the compensation, the total compensation payable to the appellants in M.A.C.A.No.2771/2015 under different heads is as follows: |Heads|Amount awarded in<br>appeal( )<br>₹| |---|---| |Transport to Hospital and back to home|5,000| |Damage to clothingand articles|1,000| |Medical expenses|25,000| |Funeral expenses|25,000| |Compensation for future loss of<br>contributions|2,10,000| |Compensation forpain and suffering|15,000| |Compensation for love and affection|50,000| |Total|3,31,000| 24. In the result, the appellants in M.A.C.A.No.2771/2015 M.A.C.A.Nos.2768 & 2771/15 -12- will be entitled for an additional compensation of 26,000/-. ₹ Since the insurance coverage of the vehicle is admitted, the 3[rd] respondent insurer shall satisfy the aforesaid amount together with interest at the rate of 9% per annum from the date of petition, within one month from the date of receipt of a certified copy of this judgment. M.A.C.A.No.2771/2015 is disposed of as above. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge