Pushpi Paul and Others v. Benny Thomas and M/S New India Assurance Co. Ltd.

## _**IN THE HIGH COURT OF KERALA AT ERNAKULAM**_ _**PRESENT:**_ _**THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**_ _**FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935**_ _**MACA.No. 1675 of 2006 (C) --------------------------**_ _**AGAINST THE AWARD IN OPMV 1821/2001 of M.A.C.T.,PERUMBAVOOR, DATED 31-03-2006.**_ _**APPELLANT(S)/PETITIONERS.:**_ _**-----------------------------**_ _**1. PUSHPI PAUL, AGED 44 YEARS, W/O.DECEASED K.J.PAUL, RESIDING AT, KAIPARAMPATT HOUSE NAZERATH ROAD, ALUVA.**_ _**2. FENIL PAUL, AGED 25 YEARS, S/O.DECESED K.J.PAUL, DO. DO.**_ _**3. NIFFI PAUL, AGED 21 YEARS, D/O.DECEASED K.J.PAUL, DO. DO. DO.**_ _**4. NIKHIL PAUL, (MINOR) AGED 12 YEARS, D.O.B. 12-2-94, D/O. DECEASED K.J.PAUL REPRESENTED BY MOTHER PUSHPI PAUL RESIDING AT KAIPARAMPATT HOUSE, NAZARETH ROAD, ALUVA.**_ _**BY ADVS.SRI.V.K.VEERAVUNNY SRI.K.Y.TOMY SRI.P.B.SUNEER**_ _**RESPONDENT(S)/RESPONDENTS.:**_ _**----------------------------**_ _**1. SHAHILESHS/O. KRISHNA PILLAI KRISHNA NIVAS, DESOM, ALUVA. (DELETED)**_ _**2. BENNY THOMAS, S/O.K.V.THOMAS, KADATHUKALAM HOUSE, THAIKKATTUKARA, ALUVA 683 101.**_ _**3. M/S. NEW INDIA ASSURANCE CO.LTD., P.B.NO.108, XIV/79G, KODAVANTH SHOPPING COMPLEX SUB JAIL ROAD, ALUVA.**_ _**1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 24.9.2012 IN I.A.NO. 1577/2012.**_ _**R3 BY ADV. SRI.LAL GEORGE**_ _**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**_ S. Siri Jagan & K. Ramakrishnan, JJ. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 1675 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18[th] day of October, 2013. **==> picture [110 x 13] intentionally omitted <==** ## Siri Jagan, J. The claimants in O.P.(MV) No. 1821/2001 before the Motor Accidents Claims Tribunal, Perumbavoor, are the appellants herein. They are the wife and children of deceased K.J. Paul. K.J. Paul died in a motor accident caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. The appellants filed the claim petition claiming compensation for the death of K.J. Paul. The deceased Paul was riding a motor cycle. The same collided with a car owned and driven by respondents 1 and 2. (The 1[st] respondent was deleted from the party array as per order dated 24.9.2012 in I.A. No. 1577/2012). After considering the evidence, namely, the FIR, the scene mahazar etc., in the criminal case registered in respect of the accident, the Tribunal came to the conclusion that the accident occurred because of the negligence of the drivers of both the vehicles and apportioned the negligence between Paul and the driver of the other vehicle in the ratio 25:75. Thereafter, the Tribunal assessed compensation under various heads as follows: M.A.C.A. No. 1675 of 2006 -: 2 :- |Loss of dependency|Rs. 1,76,088/-| |---|---| |Treatment expenses|Rs. 46,045/-| |Bystander’s expenses|Rs. 1,000/-| |Extra nourishment|Rs. 1,000/-| |Damage to clothings|Rs. 250/-| |Transportation charges|Rs. 2,500/-| |Funeral expenses|Rs. 2,500/-| |Pain and suffering|Rs. 10,000/-| |Loss of consortium|Rs. 15,000/-| |Loss of love and affection|Rs. 20,000/-| |**Total**|**Rs. 2,74,383/- rounded**<br>**off to Rs. 2,74,390/-**| Deducting 25% therefrom, the Tribunal awarded Rs. 2,05,795/-. Challenging the finding of the Tribunal regarding the contributory negligence as well as the quantum of compensation, the appellant have filed this appeal. 2. According to the appellants, the finding that the deceased contributed to the accident by his negligence to the extent of 25% is clearly unsustainable. It is submitted that the scene mahazar as well as the AMV’s report regarding the damages to the vehicle would show that the accident occurred because of the negligence of the driver of the car alone, is the first contention. Regarding the quantum, it is submitted that the appellants had produced M.A.C.A. No. 1675 of 2006 -: 3 :- documents in the form of statutory records to show that the deceased was a head load worker earning an average monthly income of Rs. 5,221/- for the period from 4/2001 to 6/2001. Ext. X1 workers’ ledger maintained by the Chairman of the Kerala Head load Workers Welfare Board, Aluva Local Committee, was summoned at the instance of the appellants which was proved through the Chairman himself and as such, the Tribunal could not have fixed only a notional income of Rs. 2,000/- p.m., as against the actual income proved, is the contention raised. The next contention is that although there were 4 dependants, the Tribunal deducted 1/3[rd] for personal expenses, which should have been 1/4[th] in view of the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation,** 2010(2) KLT 802. It is further contended that the deceased was 50 years old at the time of the accident and therefore the appropriate multiplier to be adopted is 13, whereas the Tribunal has adopted only 11. The next contention is that the 1[st] appellant was only 39 years old at the time of the death of her husband and therefore the compensation for loss of consortium of Rs.15,000/- is palpably low. Lastly, it is contended that the compensation for loss of love and affection of appellants 3 and 4 are also on the lower side. 3. The learned counsel for the Insurance Company would contend that the Tribunal had arrived at the finding M.A.C.A. No. 1675 of 2006 -: 4 :- of negligence, after considering every document available and every aspect of the case and elaborate reasons have been given in the award itself for finding 25% negligence on the part of the deceased in driving the motor bike, which is not liable to be interfered by this Court. It is further submitted that the Tribunal has considered every aspect of the quantum of compensation and has arrived at a just and fair compensation, which does not merit any interference at the hands of this Court. 4. We have considered the rival contentions in detail. 5. As regards the question of negligence is concerned, we also find that elaborate reasons have been given by the Tribunal for arriving at the conclusion that the deceased also contributed to the accident by his negligence. After considering the F.I.R., scene mahazar and other documents, the Tribunal correctly came to the conclusion that insofar as the accident was almost on the middle of the road and therefore part of the fault for the accident should fall on the deceased as well, which the Tribunal has correctly fixed as 25%. We do not find any infirmity in the said finding of the Tribunal. 6. Regarding the monthly income of the deceased, we find that unlike in many cases which have come up before us, elaborate evidence has been adduced by the M.A.C.A. No. 1675 of 2006 -: 5 :- claimants to prove the income of the deceased. The deceased was a head load worker attached to the local committee of the Kerala State Head load Workers Welfare Board. The worker’s ledger maintained by the committee in respect of the deceases was marked by the Tribunal as Ext. A1. That document was proved through the Chairman of the local committee, who gave evidence in support of the said document. He gave oral evidence to the effect that going by Ext.X1, during the period from 4/2001 to 6/2001, the average monthly income was Rs. 5,221/-. We are of opinion that the Tribunal could not have lightly brushed aside that evidence. But, still, we are of opinion that in view of the fact that the monthly income of the deceased for various months ranged from Rs. 1,975/- to more then Rs. 5,000/-, the entire Rs.5221/- cannot be treated as his average monthly income. In this connection, it must also be taken into account that the deceased had passed 50 years of age and as age increases, the head load worker would be able to do only less work. Taking into account these factors, we fix the average monthly income of the deceased as Rs. 4,000/- . 7. The appellants did not produce any acceptable evidence regarding the age of the deceased. They claimed that he was 50 years old. The Tribunal, after considering all the factors involved, came to the conclusion that he was in M.A.C.A. No. 1675 of 2006 -: 6 :- the age group of 50 to 55. We are, therefore, of opinion that appropriate multiplier to be adopted is 11. But, there were 4 dependants. Of course the 2[nd] appellant was 20 years old at the time of the death of his father. The 1[st] appellant, as PW1, has given evidence that the 2[nd] appellant was also a dependant of his father at time of the accident and he was also a patient having occasional fits. Taking into account these facts, we are inclined to treat all the 4 appellants as dependants of the deceased. That being so, the Tribunal could have deducted only 1/4[th] for personal expenses of the deceased. Calculated on the basis of these parameters, the compensation for loss of dependency would be Rs.3,96,000/(4000 x 12 x 11 x 3/4) instead of Rs.1,76,088/-. 8. Since the 1[st] appellant was only 39 years old at the time of the accident and she had practically no chance of remarriage, we are inclined to enhance the compensation for the loss of consortium to Rs. 30,000/- from Rs. 15,000/-. Despite the persuasive arguments of the learned counsel for the appellants, we are not inclined to enhance the compensation under the other heads. 8. Added together, the additional compensation for the death of Paul would be Rs.2,34,912/-, which we round off to Rs. 2,35,000/-. Therefrom, 25% has to be deducted for the contributory negligence of Paul. After deducting the same, the total additional compensation payable to the M.A.C.A. No. 1675 of 2006 -: 7 :- appellants would be Rs.1,76,250/-. That amount would carry interest @ 9% p.a. from the date of the claim petition till the date of payment. The 3[rd] respondent-Insurance Company is directed to deposit that amount also within two months. The amount shall be apportioned among the appellants in the ratio stipulated by the Tribunal and the additional compensation also be disbursed or deposited in the proportion fixed by the Tribunal. With the above modification of the award of the Tribunal, this appeal is disposed of. Tds/ [True copy] P.S to Judge.