Radha Gopinathan and others v. Joseph J. Puthumana and JAIker Antony P.J. and The Divisional Manager, New India Assurance Company Limited (MACA No. 3303 of 2016)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938 MACA.No. 3303 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 1810/2013 of MACT, ERNAKULAM DATED 18-06-2016 APPELLANT(S)/CLAIMANTS: --------------------------------- 1. RADHA GOPINATHAN, W/O. LATE GOPINATHAN, AGED 68, MUTTATHUVELIYIL HOUSE, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT. 2. VIJAYAKUMAR M.G., S/O. LATE GOPINATHAN, AGED 46, MUTTATHUVELIYIL HOUSE, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT. 3. BEENA M.G. D/O. LATE GOPINATHAN, AGED 41, MUTTATHUVELIYIL HOUSE, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 4. BINDHU M.G., D/O. LATE GOPINATHAN, AGED 41, MUTTATHUVELIYIL HOUSE, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 5. MINI M.G.,D/O. LATE GOPINATHAN, AGED 39, MUTTATHUVELIYIL HOUSE, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.MATHEWS K.PHILIP SMT.MINISHA K DAS RESPONDENT(S)/RESPONDENTS: -------------------------------------- 1. JOSEPH J. PUTHUMANA, S/O. JOSEPH, PUTHUMANA HOUSE, THEVARA P.O., ERNAKULAM, KOCHI-682013. 2. JAIKER ANTONY P.J., PUTHEZHATH HOUSE, NOCHIMA P.O., ALUVA, ERNAKULAM-683563. 3. THE DIVISIONAL MANAGER,M/S. NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAKKAL ARYA VAIDYASALA BUILDING, M.G.ROAD, ERNAKULAM. R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.3303 OF 2016 ==========================** Dated this the 27[th] day of October, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is preferred by the claimants on being dissatisfied with and aggrieved by the quantum of compensation awarded by the Additional Motor Accidents Claims Tribunal, Ernakulam as per award dated 18.6.2016 in O.P.(MV).No.1810 of 2013. They are the legal heirs of the victim of the accident viz., one Sri.Gopinathan. They filed the said claim petition under section 166 of the Motor Vehicles Act claiming an amount of `7,50,000/- as compensation for his death. They are respectively the wife and children of the deceased. The accident that led to the filing of the said claim petition occurred on 26.10.2012. On that day, the deceased was riding bicycle through **M.A.C.A.3303/2016** 2 Vaikom-Thrippunithura road and when he reached north of colony stop, the offending vehicle, viz., a car bearing Reg.No.KL-39 B/5713 driven by the first respondent knocked him down. He sustained fatal injuries and on the next day, he succumbed to the injuries. It is in the said circumstances that the claim petition was filed. 2.The evidence on the side of the appellants consisted of the oral testimony of PW1 and the documentary evidence consisted of Exts.A1 to A14 series. No evidence, either oral or documentary, was adduced on behalf of the respondents. After considering the rival contentions and evaluating the evidence on record, the Tribunal passed the impugned award whereby a total compensation of `3,19,000/- was granted with interest at the rate of 8% per annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 3.We have heard the learned counsel for the appellants and **M.A.C.A.3303/2016** 3 Sri.A.A.Ziyad Rahman, the learned counsel appearing for the third respondent-insurance company. 4.The rival submissions made before us would reveal that there is absolutely no dispute regarding the accident, cause of the accident as the negligence from the part of the first respondent who was driving the car and also the existence of a valid insurance coverage for the said offending vehicle. In other words, it is obvious that there is no dispute regarding the liability to indemnify the insured-owner of the offending vehicle. In such circumstances, we are of the view that issuance of notice to respondents 1 and 2 can be dispensed with as it is absolutely unessential. Accordingly, it is dispensed with. On the consent of parties, we are proceeding to consider the appeal on merits. Evidently, the only question that calls for consideration is the entitlement or otherwise of the appellants to get enhanced compensation. **M.A.C.A.3303/2016** 4 5.The main grievance of the appellants is that disregarding the contentions taken up in the claim petition regarding occupation and income, the Tribunal fixed the monthly income notionally as `7,000/-. They averred in the claim petition that he was a carpenter by profession and was earning `8,000/- per month. The accident occurred on 26.10.2012 and on the date of the accident the deceased was aged 72 years. The appellants did not adduce any evidence to establish their contentions regarding the occupation and income. Since no evidence was adduced by the appellants to establish the income of the deceased, the Tribunal cannot be said to have committed any error in fixing the monthly income notionally. Taking into account the fact that the deceased was aged 72 years and the accident occurred on 26.10.2012, we are of the considered view that notional fixation of the monthly income as `7,000/- also cannot be said to be so meagre warranting appellate interference. Taking into account the age of the deceased at the time of the accident and the schedule given in the decision in **Sarla Verma v. Delhi Transport** **M.A.C.A.3303/2016** 5 **Corporation [2010 (2) KLT 802 (SC)],** the Tribunal has correctly adopted '5' as the multiplier applicable for calculating compensation for loss of dependency. In such circumstances, no interference is required with respect to the fixation of the compensation for loss of dependency by the Tribunal. Though the learned counsel for the appellants contended that compensation granted under all the other heads are on the lower side and therefore, warrant an interference, on hearing the learned counsel for the third respondent and going through the impugned award, we are of the view that upward modification warrants only with respect to the amount granted towards funeral expenses and compensation for loss of consortium. 6.For fixing the compensation payable under the aforesaid heads, no volume of argument is required as it is squarely covered by a decision of the Hon'ble Apex Court in **Rajesh and others v. Rajbir** **Singh and others [(2013) 9 SCC 54].** In the said decision, it was held that in the absence of evidence for higher expenses, a minimum of `25,000/- shall be granted towards funeral expenses. In a claim for **M.A.C.A.3303/2016** 6 the death filed under section 166, M.V.Act, a minimum of `1,00,000/shall be granted to the surviving spouse for the death of his/her spouse going by the said decision. The accident involved in the decision in **Rajesh** 's case occurred in the year 2007 and the accident in question occurred on 26.10.2012. In the said circumstances, the appellants are entitled to get the compensation under the aforesaid heads re-assessed based on the said decision. As a matter of fact, the appellants have claimed only `25,000/- towards funeral expenses and only `1,00,000/towards loss of consortium. In such circumstances, there can be no doubt that the appellants are entitled to get the minimum amount of compensation fixed by the Apex Court under the aforesaid heads. Consequently, towards funeral expenses, an amount of `15,000/- is granted additionally and towards loss of consortium, an additional sum of `75,000/- is granted. In the light of the enhancement made by us, the appellants are entitled to get an additional compensation of `90,000/-. The said amount will carry 8% interest per annum from the date of the petition till realisation. It is made clear that the first **M.A.C.A.3303/2016** 7 appellant alone will be entitled to get enhanced compensation under the head loss of consortium. The third respondent is directed to deposit the additional compensation along with interest within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.3303/2016** 8 ## **C.T. RAVIKUMAR, J.** **JUDGMENT** ## **M.A.C.A.3303/2016** 9 **September, 2010**