Rajasekhar v. K.C. Hariharan and The Manager, National Insurance Co. Ltd.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933 MACA.No. 300 of 2006 (E) -----------------------------OP(MV).504/2000 of M.A.C.T.,NEYYATTINKARA ----------------------- APPELLANT(S)/APPLICANT: ------------------------------ RAJASEKHAR, S/O CHELLAPPAN, HARI NIVAS, OLATHANNI.P.O, RAJASEKHAR S/O.CHELLAPPAN, NEYYATTINKARA. BY ADVS.SRI.R.T.PRADEEP SRI.J.ROBINSON SRI.V.VIJULAL RESPONDENT(S)/RESPONDENTS: ------------------------------------- ## 1. K.C.HARIHARAN HARI NIVAS, OLATHANNI, OLATHANNI.P.O NEYYATTINKARA. ## 2. THE MANAGER, NATIONAL INSURANCE CO. LTD., K.K.BUILDING IIND FLOOR, P.B.NO.407, ARISTO JUN. THAMPANOOR, THIRUVANANTHAPURAM. R2 BY SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A. No.300 of 2006 -----------------------------------------------Dated this the 31[st] day of January, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The claimant who is the brother-in-law of a retired lady Police Constable who lost her life in a road traffic accident occurred on 11/02/2000 has come up in appeal. 2. Allegedly the deceased was travelling on the pillion of a motorcycle driven by the 1[st] respondent, the husband of the deceased, and on account of the reckless driving she was thrown down and sustained injuries to which she succumbed while undergoing treatment at Medical College Hospital, Thiruvananthapuram. The appellant claiming himself to be the dependent of the deceased approached the Tribunal claiming compensation to the tune of ` 5 lakhs. Holding that the residence of the appellant in the house of the deceased cannot attribute the status of the dependent M. A. C. A. No.300 of 2006 -2- on the deceased, the learned Tribunal dismissed the claim. Hence, this appeal. 3. We have heard Sri.R.T.Pradeep, the learned counsel appearing for the appellant as well as the learned counsel for the 2[nd] respondent Insurance Company. 4. Admittedly, the deceased died issueless. The 1[st] respondent who is the owner-cum-Driver of the offending vehicle kept away from the Tribunal as well as from this Court. The specific case put forward by the appellant was that the appellant who is not having any income of his own was depending upon the deceased who was a retired lady police constable. It is also submitted that the appellant was residing with the 1[st] respondent and the deceased under the same roof. To prove the same Ext.A5 Voters List and Ext.A6 Electoral Card were relied on by the learned counsel for the appellant. However, the learned Tribunal found that even if they were residing together it is quite difficult to conclude that the appellant was the dependent of the deceased who already retired from service. It was also found that at the M. A. C. A. No.300 of 2006 -3- most the appellant could have been depending upon the 1[st] respondent who is his brother. 5. During the course of the argument, we were taken to the unchallenged deposition of the appellant who gave evidence as PW1 wherein he has stated that he was not having any source of income and he was mainly depending upon his sister-in-law the deceased. Reliance was also placed by the learned counsel for the appellant on the decision in Cheriyakutty Mammi & Ors. v. Ummerkutty & Ors. (1996 ACJ 402) wherein it was held that the claim can be made by any person who suffered on account of the accident arising out of the use of motor vehicle and such person would include those who lost dependency, consortium and any other kind of support as a consequence of death of victim in the accident. Viewed in that profile, we are compelled to hold that the appellant will come within the definition of dependant as a person who was drawing support from the deceased. We accept the argument advanced by the learned counsel for the appellant though it M. A. C. A. No.300 of 2006 -4- was persuaded by the learned counsel appearing for the 2[nd] respondent to hold otherwise. The learned counsel for the 2[nd] respondent took us to the definitions of the term dependant in Section 2(1)(d) of the Workmen's Compensation Act which reads asunder:- “dependant” means any of the following relatives of deceased workman, namely:- (i) a widow, a minor (legitimate or adopted) son, an unmarried legitimate or adopted daughter or a widowed mother; and (ii) if wholly dependant on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm; (iii) if wholly or in part dependant on the earnings of the workman at the time of his death - (a) a widower, (b) a parent other than a widowed mother, (c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter (legitimate or illegitimate or adopted) if married and a minor or if widowed and a minor, (d) a minor brother or an unmarried sister or a widowed sister if a minor, (e) a widowed daughter-in-law M. A. C. A. No.300 of 2006 -5- (f) a minor child of a pre-deceased son, (g) a minor child of a pre-deceased daughter where no parent of the child is alive, or - (h) a paternal grandparent if no parent of the workman is alive. 6. We are of the definite view that it is apt to rely on the principles laid down by this Court in Cheriyakutty Mammi's case (cited supra). Even in cases where there is no loss of dependency, there exists loss of estate as the person who inter middles with the estate can be a beneficiary of the estate. 7. Allegedly, the deceased was aged 56 years at the time of accident. She had attained superannuation. It is in evidence that the first respondent who was the husband of the deceased is not having any income of his own. The yardsticks which are normally followed for fixation of compensation for loss of dependency cannot be adopted in the present case, as there is no cogent evidence regarding that portion of income by which the appellant would have been benefited, had the deceased been alive. However, we are of the view that the appellant is entitled to a some amount as compensation on account of the death of the M. A. C. A. No.300 of 2006 -6- deceased. 8. In addition to that the appellant is entitled to get some amount under the head loss of love and affection, loss of estate, funeral expenses etc. However, it is trite that the total amount of compensation that can be awarded in death cases shall not go below the minimum that is provided under Section 140 of the Motor Vehicles Act. Thus, we are of the view that the appellant who lost the support of her sister in law on account of the accident, is entitled to receive a minimum amount of ` 50,000/- as compensation. 9. Accordingly, we allow the appeal and award a sum of ` 50,000/- to the appellant. The above sum will carry interest at the rate of 7.5% per annum from the date of claim petition till payment. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns & krj/- //TRUE COPY// P.A. TO JUDGE M. A. C. A. No.300 of 2006 -7-