P.V. ABRAHIM & Others v. SHIHAB @ SHIHABUDEEN & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937 MACA.No. 766 of 2006 (D) ------------------------AGAINST THE AWARD IN OPMV 479/1999 of MACT, KALPETTA DATED 22.2.2005 APPELLANTS/PETITIONERS: ----------------------- ## 1. P.V.ABRAHIM, AGED 48 YEARS, S/O.VARKEY, PANACHIYIL HOUSE, KUPPADI.P.O, KUPPADI AMSOM, DESOM, BATHERY TALUK (FATHER OF DECEASED). 2. SOSAMMA ABRAHAM, AGED 45 YEARS, W/O.ABRAHAM, PANACHIYIL HOUSE, KUPPADI.P.O, KUPPADI AMSOM DESOM, BATHERY TALUK (MOTHER OF THE DECEASED). ## 3. BEENA.P.A, AGED 21 YEARS, D/O.ABRAHAM, PANACHIYIL HOUSE, KUPPADI.P.O, KUPPADI AMSOM DESOM, BATHERY TALUK (SISTER OF THE DECEASED). ## 4. BINESH.P.A, AGED 18 YEARS, S/O.ABRAHAM, PANACHIYIL HOUSE, KUPPADI.P.O, KUPPADI AMSOM DESOM, (BROTHER OF THE DECEASED). BY ADV.SRI.S.EASWARAN RESPONDENTS : -------------- 1. SHIHAB @ SHIHABUDEEN, AGED 20 YEARS, S/O.KUTTOOSE, MALAPPURA HOUSE, RESIDING AT MALAPPURA, NOOLPUZHA AMSOM DESOM, BATHERY TALUK, (DRIVER OF THE JEEP NO.KBR 527). 2. T.N.THANKAPPAN, S/O.NARAYANAN, PALLIYAMBIL HOUSE, MOOLANKAVU, KUPPADI AMSOM DESOM, S.BATHERY TALUK. (OWNER OF THE JEEP KBR 527). ## 3. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY, S.BATHERY BRANCH, (INSURER OF THE JEEP No.KBR 527). R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.No.766 of 2006 -----------------------------------------------------------------Dated this the 1[st] day of March, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of death of one Biju, pursuant to the road traffic accident occurred on 18.5.1999. 2. The factual position revealed from the proceedings is that the deceased was travelling as passenger in the jeep bearing No.KBR 527 owned, driven and insured by the respondents 1 to 3 before the Tribunal and while so, the jeep hit against a tree causing serious injuries leading to death of the deceased on the way to hospital, which led to the claim petition filed by his legal heirs, before the Tribunal seeking to compensate the loss. 3. The matter was contested mainly by the respondent/insurance company, who filed a statement before the Tribunal admitting insurance coverage and disputing the income, age, occupation of the deceased and amount of compensation claimed. M.A.C.A.No.766 of 2006 2 4. The evidence adduced before the Tribunal consists of Exts.A1 to A6 and the oral evidence of PWs.1 and 2. Ext.B1 is the copy of the policy marked from the side of the respondents. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred because of the negligence on the part of the driver of the jeep and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the case projected by the claimants before the Tribunal was that the deceased was earning a monthly income of ₹5,000/by cultivating ginger in 6 acres of land in Kodagu District, taken on lease for 3,000/- per Acre.₹ Referring to serious consequences resulted because of the death a total sum of 10,00,000/- was₹ claimed. But the Tribunal observed that the occupation/income of the deceased was not properly proved and accordingly only ₹30,000/- was taken as annual income for working out the loss of dependency. Awarding amounts under different heads, total compensation was fixed as 2,70,000/-, which was directed to be₹ satisfied with interest @6% per annum. The liability accordingly mulcted upon the shoulders of the insurance company. M.A.C.A.No.766 of 2006 3 7. Inadequacy of the compensation is the subject matter of challenge in this appeal. 8. Heard the learned counsel for the appellants as well as the learned counsel for the respondent insurer. 9. The amounts awarded by the Tribunal under different heads as given in paragraph 7 of the Award are as follows:- Transport charges ₹2,000/Pain and sufferings ₹5,000/Funeral Expenses ₹3,000/Dependency 2,60,000/-₹ -------------2,70,000/-₹ ======== 10. At the time of the accident the deceased was aged 23 years. The specific case put forth by the appellants was that the deceased was earning a monthly income of ₹5,000/by cultivating ginger in 6 acres of land in Kodagu District taken on lease for 3,000/- per Acre. In support of the above contention₹ the 1[st] appellant was examined as PW.1. Other than Ext.A5 lease deed no documents were produced before the Tribunal in order to prove the income generated from the agricultural operations carried out in the property in question. It was in such M.A.C.A.No.766 of 2006 4 circumstances, the Tribunal reckoned the notional annual income as 30,000/-. After deducting 1/3₹ rd towards personal expenses and applying the multiplier 13 based on the age group of his parents, the Tribunal awarded 2,60,000/- towards dependency₹ compensation. 11. However we find that the accident occurred in the year 1999 and at the time of the accident the deceased was an able bodied youth of 23 years. Ext.A5 lease deed would indicate that the deceased was carrying out agricultural operation after taking 6 acres of land on lease. Considering the facts and circumstances of the case, we deem it appropriate to fix the notional monthly income of the deceased as 3,000/- for the purpose of calculating₹ dependency compensation. 12. Since the deceased was aged 23 years the appropriate multiplier applicable is 18 instead of 13 applied by the Tribunal. Since the deceased was a bachelor one half of his income should have been deducted towards his personal and living expenses, instead of 1/3[rd] deducted by the Tribunal. So dependency compensation will have to be reworked as 3,000x12x18x50/100= ₹3,24,000/-. The Tribunal awarded a sum of 2,60,000/- under₹ M.A.C.A.No.766 of 2006 5 this head. In the result, the appellants will be entitled for an additional compensation of **64,000/- ₹** under this head. 13. Towards pain and suffering the Tribunal awarded only a sum of 5,000/-. The deceased ₹ succumbed to injuries on the date of accident itself. However, considering the ordeal undergone by him, we deem it appropriate to re-fix the compensation under this head as 15,000/-. Thus the balance₹ compensation comes to **₹10,000/-** under the head pain and suffering. 14. It is seen that only a sum of 3,000/- has been₹ awarded by the Tribunal towards funeral expenses and no amount has been awarded towards the loss of love and affection. Going by the mandate of the decision rendered by the Supreme Court in **Rajesh Vs. Rajbir Singh [2013 (3) KLT 89(SC)]** unless better evidence is produced a sum of 25,000/- requires₹ to be satisfied towards the funeral expenses. The Apex Court has made it clear that the amount payable towards loss of love and affection shall be 1,00,000/-. It is true that the said decision₹ came to be considered by another Division Bench of this Court in M.A.C.A.No.766 of 2006 6 **Valsamma v. Binu Jose [2014 (1) KLT 10]** , whereby it has been held that the amount payable under the said head is not automatic and that the same has to be with reference to the age of the deceased and also to the age of the claimants as well. 15. The accident in **Rajesh's case (supra)** was in the year 2007, in the instant case it is in 1999. In the said circumstance, we re-fix the compensation under the head funeral expenses as 10,000/-, resulting an additional compensation of₹ **₹7,000/-** . Considering the fact that at the time of accident the deceased was aged 23 years and his parents were aged 48 years and 46 years respectively, we deem it appropriate to grant a sum of **₹50,000/-** towards loss of love and affection. 16. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which requires no interference in this appeal. 17. In the result, the appellants will be entitled for an additional compensation of 1,31,000/- i₹ n this appeal together with interest @9% per annum from the date of petition. 18. This appeal was filed with a petition to condone delay of 332 days. By order dated 15.2.2016 we have held that, in case 7 M.A.C.A.No.766 of 2006 of any enhancement of the compensation is granted, the appellants will not be entitled to get interest for the period covered by delay. In the result, the appellants will be entitled for an additional compensation of **₹1,31,000/-** in this appeal together with interest @9% per annum from the date of petition, excluding the period of 332 days delay in filing this appeal. The respondent/insurer shall deposit the additional compensation granted in this appeal before the Tribunal within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge