Remani and others v. The National Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 9TH DAY OF JANUARY 2018 / 19TH POUSHA, 1939** **MACA.NO. 1193 OF 2017** **-----------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.167/2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 22-07-2016** **------------------** **APPELLANT(S)/PETITIONERS :** **-------------------------** **1 REMANI, W/O. LATE SURESH, KALLEPADATH HOUSE, CHERUKAVALA, KIDANGOOR P.O.** **2 ANJU,** **W/O. SHENJUMON MADAPPILLY HOUSE,** **THURUTHU, OKKAL P.O.** **3 ARUN SURESH,** **S/O. LATE SURESH, KALLEPADATH HOUSE, CHERUKAVALA, KIDANGOOR P.O.** **4 SAROJINI,** **W/O. KUMARAN, KALLEPADATH HOUSE,** **CHERUKAVALA, KIDANGOOR P.O.** **BY ADV.SRI.A.N.SANTHOSH** **RESPONDENT(S)/3RD RESPONDENT:** **----------------------------** **THE NATIONAL INSURANCE COMPANY LTD.** **P.B.NO.6, 1ST FLOOR, SHANTI PARK, KOLENCHERRY PIN-682311** **R1 BY ADV. SRI.P.G.GANAPPAN** **BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.1193 of 2017 ---------------------------------Dated this the 9[th] day of January, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.167 of 2014 of the Motor Accidents Claims Tribunal, Perumbavoor by the legal representatives of the deceased Suresh. The 1[st] appellant's husband died in a motor accident on 26.11.2013 at 11.30 a.m., and the learned tribunal awarded an amount of Rs.11,63,600/(Rupees eleven lakh sixty three thousand six hundred only) with 9% interest per annum from the date of petition till realisation with proportionate cost as compensation. Being dissatisfied with the award amount, the claimants preferred this appeal. 2. The appellant's case in the lower court was that on 26.11.2013 at 11.30 a.m., while the deceased, namely Suresh, was travelling as a pillion rider in a motorcycle KL-7/AP-6582 and when he reached at the place of occurrence, another vehicle KL-40/5747 driven in a rash and negligent manner hit against the motorcycle, as a result M.A.C.A. No.1193 of 2017 2 the rider and pillion rider sustained serious injuries. Immediately, they were removed to Little Flower Hospital, Angamaly and while undergoing treatment, Suresh succumbed to the injuries. The driver and owner contested the matter. The insurer admitted the insurance of the offending vehicle. The claimant did not adduce any oral evidence, but their documents were marked as Exts.A1 to A11. 3. Learned counsel appearing for the appellant contended that meagre amount was awarded by the tribunal as compensation. The deceased was aged 46 years at the time of accident and was earning an amount of Rs.25,000/- per month. But, the learned tribunal took Rs.6,000/- as his monthly income for dependancy, which is very low. 4. Learned counsel appearing for the insurer submitted that the learned tribunal awarded just amount and no interference is necessary. 5. Apex Court in **(2014) 2 Supreme Court** M.A.C.A. No.1193 of 2017 3 ## **Cases 735 Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited** held as follows: 8. The appellant claimant in his appeal further claimed that he had been earning Rs.10,000/- p.m. By doing vegetable vending work. The High Court however, considered the loss of income at Rs.3,500/- p.m. Considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to prove his monthly income. In this regard, this Court, in Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd, has held as under: (SCC pp.242-43, paras 13-15) 13. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs.4500/- per month at the time of accident. This claim is reduced by the tribunal to a sum of Rs.3,000/- only on the assumption that the wages of a labourer during the relevant period viz. Int he year 2004, was Rs.100 per day. This assumption in out view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs.3000 per month. ## M.A.C.A. No.1193 of 2017 4 Secondly, the appellant was working as a coolie and therefore, we cannot except him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. 14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time. 15. In the present case, appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs.100 to Rs.150 per day or Rs.4500 per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.4500/- to Rs.3000/- per month. We, therefore, accept his statement that his monthly earning was Rs.4500/-.” 9. There is no reason in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by the present state of economy and the M.A.C.A. No.1193 of 2017 5 rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs.6500/- per month. In Syed's case (Supra) the injured who is a vegetable vendor claimed Rs.10,000/- as his monthly income. But, the Apex Court took Rs.6,500/- as his monthly income, in which the Apex Court relied the decision reported in **Ramachandrappa** v. **Royal Sundaram Alliance Insurance Co. Ltd (2011) 13 SCC 236** and also the decision reported in **Santhosh Devi** v. **National Insurance Co. Ltd. (2012) 6 SCC 421** . 6. In this case, the appellant claimed that the deceased was a business man by profession and was getting an amount of Rs.25,000/- per month. But, the learned tribunal took only Rs.6,000/- as his monthly income, which is insufficient. Considering the present business field as a self employee, it is better to take Rs.9,000/- as his monthly income for calculating the dependancy. There is no dispute with regard to the multiplier. Apex Court in **National Insurance Company** M.A.C.A. No.1193 of 2017 6 v. **Pranay Sethi 2017 (4) KLT 662 (SC)** held that 25% shall be added to persons between the age group of 40 to 50 years. If that be the position, an amount of Rs.11,250/(Rs.9,000x25/100) is taken as his income for calculating the loss of dependancy. The multiplier is 13. There are four dependants in this case. According to the decision of the Apex Court in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2)KLT 802(SC),** ¼ has to be deducted. Accordingly, the appellants are entitled to get an amount of Rs.13,16,250/- (Rs.11,250x12x13x3/4) for loss of dependency. Learned tribunal awarded an amount of Rs.9,12,600/- on that head. The balance is Rs.4,03,650/- (13,16,250-9,12,600). 7. The learned tribunal awarded an amount of Rs.1,00,000/- for love and affection. No interference on that head is necessary in view of the decision reported in **Bhogireddi Varalakshmi and others** v. **Mani Muthupandi and others 2017 ACJ 1391.** Learned tribunal awarded an amount of Rs.5,000/- for pain and ## M.A.C.A. No.1193 of 2017 7 suffering, which is to be enhanced to Rs.25,000/-. Therefore, the appellant is entitled to get Rs.20,000/(25,000-5,000) on that head. Hence, the total enhanced compensation comes to Rs.4,23,650/- (Rs.4,03,650/- + Rs.20,000/-) **.** 8. In **Pranay Sethi** (Supra), the Apex Court held that “Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” In this case, the learned tribunal awarded an amount of Rs.15,000/- for loss of estate, Rs.25,000/- for funeral expenses and Rs.1,00,000/- for loss of consortium, hence an amount of Rs.70,000/- (10,000+60000) has to be reduced from Funeral Expenses and for Loss of Consortium. The balance is Rs.3,53,650/-. Accordingly, the legal representatives of the deceased are entitled to get additional compensation of Rs.3,53,650/- (Rupees ## M.A.C.A. No.1193 of 2017 8 Three Lakh Fifty Three Thousand Six Hundred and Fifty only) with 9% interest per annum from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment failing which, it will carry 12% interest from the date of default. This M.A.C.A. is disposed of as above. NS Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge