Pushpamma and others v. A. Saifudeen and Oriental 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 21ST JANUARY 2010 / 1ST MAGHA 1931 MACA.No. 201 of 2008() ---------------------OPMV.1371/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): CLAIMANT: ----------------------- 1. T.S.PUSHPAMMA, W/O.(LATE)PONNAPPAN, CHANIVELIYIL HOUSE, (KALATHIVEEDU VELI), K.P.WARD XII, S.N.PURAM P.O., CHERTHALA. 2. C.P.KALESH, S/O.PONNAPPAN, -DO-. 3. C.P.VINISH, S/O.PONNAPPAN, -DO-. BY ADV. SRI.A.KRISHNAN SRI.JOSE. Y.JAMES RESPONDENT(S): RESPONDENTS: --------------------------- 1. A.SAIFUDEEN, MANAGING PARTNER, NOOR TIMBERS, EDAVANA P.O., MALAPPURAM. 2. THE ORIENTAL INSURANCE COMPANY LIMITED, MULLACKKAL, ALAPPUZHA BR. REPRESENTED BY ITS MANAGER. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A No.201 of 2008 ---------------------------------------Dated this the 21[st] day of January 2010 ## **J U D G M E N T** ## **Basant,J** Wife and two minor children of a deceased are the appellants before us. The deceased suffered injuries in a motor accident which took place on 26/7/2002 and succumbed to those injuries immediately. He was a fisherman by avocation. The tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellants are entitled to a total amount of Rs.2,46,000/- as compensation as per the details shown below: ||Rs.| |---|---| |Transportation, carriage of|5,000/-| |dead body and funeral expenses|| |Pain and suffering|5,000/-| |Loss of love and affection|10,000/-| |Loss of consortium|10,000/-| |Loss of dependency<br>|2,16,000/-| |(Rs.1,800/- x 12 x 2/3 x 15)|| |**Total**<br>|**2,46,000/-**| M.A.C.A No.201/08 2 The said amount was directed to be paid along with interest @ 6% p.a. 2. The appellants/claimants claim to be aggrieved by the impugned award. What is their grievance? Called upon to explain the nature of challenge which the appellants want to mount against the impugned award, the learned counsel for the appellants first of all contends that the award of interest @ 6% p.a is perversely low and painfully inadequate. Relying on the decision in **Dharampal v. U.P State Road Transport Corporation [2008(2)KLT 691 (SC )]** the learned counsel contends and we agree that interest must have been awarded atleast @ 7.5% p.a from the date of the petition to the date of payment. 3. The learned counsel for the appellants then contends that no amount is seen awarded under the head of loss of estate. Following the decision in **Sarla Verma v. D.T.C [(2009)6 SCC 121],** the learned counsel argues that atleast the conventional a amount must have been awarded under the head of loss of estate. We agree with the learned counsel for the appellant. Rs.10,000/- can be awarded as the compensation under that M.A.C.A No.201/08 3 head. It is agreed at all hands that the multiplier adopted is correct considering the evidence of age. 4. The learned counsel for the appellant has trained all his guns against the reckoning of Rs.1,800/- p.m as the monthly income of the deceased. He relies on the certificate Ext.A10 issued by the employer of the deceased to show that he was getting an average of Rs.6,400/- p.m. The tribunal did not attach any significance or importance to that document. The same has not been proved satisfactorily. The learned counsel for the appellants contends that even if the income certificate be eschewed from consideration, we have satisfactory evidence to show that the deceased was a fisherman by profession. Ext.A9 shows that he was a subscriber to the Kerala Matsya Thozhilali Kshema Nidhi. The learned counsel for the appellants further points out that the deceased was the sole earning member of a family consisting of himself, his wife and his two children. They were living with the income derived by the deceased. Reasonable inference can be drawn on the probable monthly income even from that output. The accident had taken place on 26/7/2002. It is further pointed out that as early as in 1994, in a M.A.C.A No.201/08 4 claim under Section 163A, the legislature in the second schedule permits a presumption of prudence to be drawn that even a non-earning person can be assumed to draw an income of Rs.1,250/- p.m. We are satisfied, in these circumstances, that an amount of Rs.2,500/- p.m can safely be assumed to be the irreducible minimum monthly income of the deceased notwithstanding the absence of authentic evidence to prove the actual precise monthly income. 5. The above discussions lead us to the conclusion that the appellants are entitled to the following further amount of compensation in addition to the amounts awarded by the tribunal. 1. Loss of estate Rs.10,000/2. Loss of dependency Rs.84,000/(Rs.2,500/- x 2/3 x 12 x 15) = Rs.3,00,000/- minus Rs.2,16,000/- **Total Rs.94,000/=======** 6. In the result, - a) This M.A.C.A is allowed in part. - b) In addition to the amounts awarded by the tribunal, M.A.C.A No.201/08 5 the appellants/claimants are found entitled to a further amount of Rs.94,000/- (Rupees ninety four thousand only) as per the details shown above. c) It is further directed that interest shall be payable @ 7.5% p.a on the entire compensation amount from the date of the petition to the date of payment. d) All other directions of the tribunal are upheld. Appropriate fresh directions shall be issued by the tribunal regarding release/deposit of the compensation. ## **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A No.201/08 6 M.A.C.A No.201/08 7 **R.BASANT & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 29/07/2009