R. Prasanakkumari and others v. K.P. Paul and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 MACA.No. 1469 of 2011(E) ----------------------OPMV.391/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANTS : PETITIONERS ------------------------- 1. R.PRASANNAKUMARI, W/O.LATE SANKARA PILLAI, SIVAPRASADAM, THOTTINUVADAKKU, CHAVARA VILLAGE, KARUNAGAPPALLY, KOLLAM. 2. SIVASUTHAN.S, S/O.SANKARA PILLAI, SIVAPRASADAM, THOTTINUVADAKKU, CHAVARA VILLAGE, KARUNAGAPPALLY, KOLLAM. 3. SOUMYAMOL.P, D/O.PRASANNAKUMARI, SIVAPRASADAM, THOTTINUVADAKKU, CHAVARA VILLAGE, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENTS : - --------------- 1. K.P.PAUL, PROP. M/S.KOTTANCHERIL AGENCIES, MARKET ROAD, THODUPUZHA. 2. MANOJ DAMODARAN, S/O.DAMODARAN, ARAMKUNNUPURATHU, KAVAKADU. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LTD., THODUPUZHA, REPRESENTED BY THE DIVISIONAL OFFICE, THE ORIENTAL INSURANCE CO.LTD., KOLLAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ. ************************* ## **M.A.C.A No.1469 of 2011-E ******************************* Dated this the 9[th] day of November, 2011 ## **JUDGMENT** ## BASANT, J. Claimants are the appellants. They are the wife and 2 major children of the deceased, one Sankarapillai, a person aged 54 years, who suffered injuries in a motor accident which took place on 07.02.2007 and succumbed to those injuries later on the same day. He was a pedestrian. He was hit by the insured vehicle. The police after investigation filed Ext.A4 final report/charge sheet raising allegations of culpable negligence against the driver of the insured vehicle. A total amount of Rs.8 lakhs was claimed as compensation. 2. The Tribunal, by the impugned award, came to the conclusion that the total loss suffered by the appellants is Rs.3,39,100/- as per the details given in para.8 of the impugned award, which we extract below: |**_Sl._**<br>**_No._**|**_Head of claim_**|**_Amount awarded_**| |---|---|---| |1|Transport to the hospital and funeral expenses|Rs. 5,000.00| |2|Compensation for pain and suffering|Rs. 5,000.00| 2 **M.A.C.A No.1469 of 2011-E** |**_Sl._**<br>**_No._**|**_Head of claim_**|**_Amount awarded_**| |---|---|---| |3|Compensation for continuing permanent disability<br>(Rs.10390X12X.4) plus (Rs.2000X12X10.8)|Rs. 49,872.00 +<br>Rs.2,59,200.00| |4|Compensation for the loss of consortium|Rs. 10,000.00| |5|Compensation for loss of love and affection|Rs. 10,000.00| ||Total|Rs.3,39,072.00<br>rounded to<br>**Rs.3,39,100/-**| 3. Even in the absence of any better evidence, the Tribunal, looking at the spot of the accident marked in the scene mahazar, came to the conclusion that the accident must have taken place when the deceased rashly attempted to cross the road. Accordingly the Tribunal concluded that the deceased was responsible to the extent of 20% for the accident. Consequently it was directed that only 80% of the loss is liable to be realised from the owner, driver and the insurer of the insured vehicle. Accordingly the impugned award passed to recover 80% of the compensation amount of Rs.3,39,100/- from the owner, driver and insurer of the insured vehicle. 4. We have heard the learned counsel for the appellants/claimants and the learned counsel for the 3[rd] respondent/insurance company. Challenge is raised against the 3 **M.A.C.A No.1469 of 2011-E** finding on the question of negligence as also the quantum of compensation awarded. 5. The deceased was a pedestrian. He had suffered injuries when he was knocked down by the insured vehicle. The police after due investigation had filed Ext.A4 charge sheet. No contra evidence was adduced. Respondents 1 and 2 remained exparte. It is the 3[rd] respondent/insurer who took up a contention that the deceased was negligent and had contributed to the cause of the accident. 6. The learned counsel for the appellants argues that following the dictum in **New India Assurance Co.Ltd. V. Pazhaniammal** [2011 (3) KLT 648], the conclusion that the deceased had contributed 20% to the cause of the accident is not valid. Merely by looking at the scene mahazar and locating the spot of the accident, it cannot be assumed that the deceased was responsible for the accident. The mere fact that the impact took place on the middle of the road is by itself no reason to assume that the deceased must have rashly and negligently crossed the road. At any rate, the burden was on the respondents to adduce evidence on that aspect, in the light of the police report. 7. We are, in these circumstances, satisfied that the 4 ## **M.A.C.A No.1469 of 2011-E** finding on the question of negligence - that the deceased was responsible to the accident to the extent of 20%, deserves to be vacated and set aside. 8. It is then contended that the quantum of compensation awarded is not fair, just and reasonable. For pain and suffering, only an amount of Rs.5,000/- has been awarded. Similarly only an amount of Rs.10,000/- each has been awarded under the head of loss of consortium and loss of love and affection. We are satisfied that the amounts awarded under these heads deserve to be enhanced. We direct that an amount of Rs.10,000/- under the head of pain and suffering, an amount of Rs.20,000/- under the head of loss of consortium and an amount of Rs.15,000/- under the head of loss of love and affection be awarded as compensation. 9. The main challenge is raised against the quantum of compensation awarded under the head of loss of dependency. The Tribunal took note of the fact that the monthly income of the deceased at the time of the accident was Rs.16,105/-. This included certain amount specified as SPA, PTA, R/M, Feeding charge and S.M. The Tribunal did not reckon these amounts as part of the monthly salary. Deducting these expenses, monthly **M.A.C.A No.1469 of 2011-E** 5 salary was accepted to be Rs.15,585/-, ie. the basic pay plus D.A plus HRA. The deceased had only 4 more months to work as an Assistant Sub Inspector of Police in the Government service. 4 months' salary less one third towards his personal expenses was ordered to be paid. For the post retiral period it was assumed that the deceased would have earned an income of Rs.3,000/- per mensem. For 4 months, compensation was calculated on the basis of the salary while in service. For the remaining 128 months (multiplier reckoned as 11 as per the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the monthly income was assumed to be Rs.3,000/-. 10. The learned counsel for the appellants submits that the Tribunal should have included the other components of the monthly salary also as multiplicand while calculating the quantum of compensation. We are unable to agree. No data is made available to persuade us to conclude that the other amounts shown in Ext.A7 salary certificate are not reimbursements to meet expenses in connection with employment. Even the expansions of the expressions are not made available to us. The Tribunal, in these circumstances, cannot be found fault with for accepting only Rs.15,585/- as the 6 **M.A.C.A No.1469 of 2011-E** monthly salary. 11. For the post retiral period, the deceased as a retired police officer must certainly have been able to find suitable employment. Only an amount of Rs.3,000/- was assumed as the monthly income. We are satisfied that Rs.5,000/- can safely be accepted as the monthly income. For loss of estate also, compensation is liable to be awarded. 12. On the basis of the above discussions, we come to the conclusion that the appellants/claimants are entitled to a total amount of Rs.5,28,227/- as compensation as shown below: i) pain and suffering : Rs. 10,000.00 ii) Loss of consortium : Rs. 20,000.00 iii) Loss of love and affection : Rs. 15,000.00 iv) Transport to hospital & funeral expenses : Rs. 5,000.00 v) Loss of dependency : a) for the first 4 months (15585X4X2/3) : Rs. 41,560.00 b) for the remaining 128 months (128monthsX5000X2/3): Rs.4,26,667.00 vi) Loss of estate : Rs. 10,000.00 ----------------------Total :Rs.5,28,227.00 ========== 7 ## **M.A.C.A No.1469 of 2011-E** 13. We direct that the appellants be paid the entire amount of Rs.5,28,227/- as compensation as shown above. ## 14. In the result: a) This appeal is allowed in part; b) In supersession of the directions of the Tribunal, the appellants are found entitled to a total amount of Rs.5,28,227/(Rupees Five lakhs twenty eight thousand two hundred and twenty seven only) along with interest @ 7.5% per annum from the date of the claim to the date of payment; c) Proportionate cost shall be paid in the proceedings before the Tribunal on the entire amount of compensation as held in **Jeena V. Satheesh Babu.K** [2011(3) KLT 943]; d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(V.CHITAMBARESH, JUDGE)** rtr/