Rembha Divakaran and others v. N. Pandithurai, Pallavaraajan and The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940** **M.A.C.A.No. 398 of 2015** **AGAINST THE COMMON AWARD IN O.P.(M.V.)NO. 1444/2005 of THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL OF THRISSUR, THRISSUR DATED 12-09-2014** ## **APPELLANTS/PETITIONERS:** **1 REMBHA DIVAKARAN AGED 47 YEARS W/O.DECEASED DIVAKARAN, PULINKUZHI HOUSE, PUTHUR P.O., THRISSUR. 2 SYAMJITH P.D. AGED 23 YEARS S/O.LATE DIVAKARAN, PULINKUZHI HOUSE, PUTHUR P.O., THRISSUR. 3 SARATH P.D. AGED 18 YEARS S/O.LATE DIVAKARAN, PULINKUZHI HOUSE, PUTHUR P.O., THRISSUR. 4 SUBHADRA AGED 79 YEARS W/O.KUMARAN, PULINKUZHI HOUSE, PUTHUR P.O., THRISSUR. 5 KUMARAN AGED 83 YEARS S/O.LATE RAMAN, PULINKUZHI HOUSE, PUTHUR P.O., THRISSUR.** **BY ADVS. SRI.C.HARIKUMAR SMT.ANUROOPA JAYADEVAN** ## **RESPONDENTS/RESPONDENTS:** - **1 N.PANDITHURAI** **13A, SOUTH KRISHNAN KOVIL, 1ST STREET, MADURAI, TAMILNADU-625 001.** **M.A.C.A.No. 398 of 2015** **2** |**2**|**PALLAVARAJAN**| |---|---| ||**S/O.VENKITTASWAMI, PILLAYARKOVIL STREET, NIRATHAN,**| ||**VADIPETTY, MADURAI, TAMILNADU-625 001.**| |**3**|**THE NEW INDIA ASSURANCE COMPANY LTD**| ||**MADURAI, TAMILNADU-625 001.**| ||**BY ADVS.**| ||**R3 BY SRI.P.JACOB MATHEW, SC**| ||**R3 BY SRI.MATHEWS JACOB (SR.), SC**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 398 of 2015** **3** ## **JUDGMENT** This appeal is directed against the award dated 12.09.2014 in O.P(M.V.) No. 1444 of 2005 on the files of the Motor Accidents Claims Tribunal, Thrissur (for short ‘the Tribunal’). 2. The appellants are claimants before the Tribunal and they seeks for enhancement of amount awarded as compensation under various heads. 3. Before adverting to the grounds raised in the appeal, it is relevant to have a conspectus of the facts of the case: On 17.04.2005 at 3.30 p.m, one Mr.Divakaran was riding a motor cycle bearing registration No.KL-8/F 301 through ThrissurPalakkad National High way and when reached near Kuthiran, a tempo trax bearing registration No. TN 58/H 7650, knocked his vehicle on its back. In the impact of the hit, Mr.Divakaran was thrown down and sustained serious injuries. He was rushed to Jubilee Mission Hospital, Thrissur for treatment. On the fourth day of treatment, on 20.04.2005, he succumbed to the injuries at the hospital. Alleging that the driver of the tempo trax was **M.A.C.A.No. 398 of 2015** **4** responsible for the accident by its negligence and seeking for a sum of Rs.11,60,000/- as compensation, the claim petition was preferred by his legal heirs before the Tribunal. Owner, driver and insurer of the tempo trax were arrayed as respondent Nos.1 to 3 in the claim petition. The claimants include the widow of the deceased, his two minor children and parents. 4. First and second respondents remained exparte. The third respondent, the insurer had filed written statement admitting that a valid policy issued by them exists for the tempo trax bearing Registration No. TN-58/H 7650 at the relevant time of accident. The contentions raised were that the second respondent was not rash and negligent in driving the tempo trax and in causing the accident and that the amount of compensation claimed is too excessive. 5. Before the Tribunal, petitioners have let in documentary evidence as Exts.A1 to A16. On the side of the respondents no evidence was let in. The documentary evidence available on record have been appreciated by the Tribunal and found substance in the allegation that the second respondent, the driver **M.A.C.A.No. 398 of 2015** **5** of the tempo trax was driving the same in a rash and negligent manner. Accordingly, responsibility for the accident was fixed upon him and a sum of Rs.6,44,000/- was arrived at as compensation payable to the petitioners. The amount of compensation was also found to carry interest at the rate of 9% per annum from the date of the claim petition till realization with proportionate costs. Challenging the quantum of compensation so awarded, for the reason of it's inadequacy and dis-proportionality to the sufferings of the petitioners, the appeal on hand is preferred before this Court. 6. Shri.C.Harikumar, the learned counsel for the petitioners had contended that the compensation arrived at by the Tribunal under various heads being inadequate and disproportionate, interference is warranted. It is contended by the counsel that against the claim of monthly earning of Rs.8,000/-, the Tribunal had fixed the notional income of Rs.3,000/- as the monthly income of the deceased for assessing compensation for loss of dependency. It is also contended by the learned counsel that the Tribunal is highly unjustified in its arrival of compensation **M.A.C.A.No. 398 of 2015** **6** under the heads loss of love and affection, loss of consortium, funeral expenses and loss of estate. The counsel pleaded for interference on the counts as above and modification reasonably. 7. Sri.Mathews Jacob, the learned Senior Counsel has contended that interference is totally uncalled for in the case on hand, since the compensation has been arrived at by the Tribunal on a proper appreciation of the evidence on record. According to him, in _**National Insurance Company Limited v. Pranay Sethi [2017(4) KLT 662 (SC)]**_ , the Apex Court has considered, fixed figures under conventional heads such as loss of estate, loss of consortium and funeral expenses respectively as Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, and for the reason a deviation therefrom is not possible and the only way out is to confirm the award under challenge. 8. Bearing the rival contentions in mind, this Court ventured to analyse the evidence on record. As disclosed from the impugned award, oral evidence was not let in by the petitioners. They sought to establish their case by adducing documentary evidence alone. As per the pleadings in the claim petition, the **M.A.C.A.No. 398 of 2015** **7** deceased was getting a monthly income of Rs.8,000/- from his profession as a lorry mechanic. Despite raising such a plea, evidence, either oral or documentary, were not let in to establish the said aspect. In _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]**_ , the Apex Court while computing the compensation in the case of a coolie worker, who had sustained injuries and died in a motor accident occurred in the year 2004, Rs.4500/- was taken as the monthly income. The accident in the case on hand was occurred in the year 2005, one year later to the year of accident dealt with in the dictum cited _supra._ The learned Standing Counsel for the third respondent has solicited for consideration of Rs.5,000/- as the monthly income. The plea of the Standing Counsel seems to be not sound for the reason that the deceased was survived by his wife aged 38 years, two minor children aged 14 years and 9 years and age old parents. Eventhough the accident in the case on hand was occurred only an year later to the year of accident in _**Ramachandrappa's**_ case, the deceased being the sole earning member managing the entire affairs of the family consisting of five **M.A.C.A.No. 398 of 2015** **8** members, the sustenance is impossible with a monthly income of Rs.5,000/-. A just and reasonable compensation is contemplated by the Motor Vehicles Act. Therefore a monthly income of Rs.7,000/- , if taken would be reasonable. The deceased was claimed as aged 41 years and the claim being substantiated by materials available in evidence on record, this Court is justified to consider the age as such. 25% addition to the monthly income is appropriate for the age group to which the deceased belong. Since the family of the deceased takes in five members, ¼[th] has to be deducted towards personal expenses, had he been alive. Therefore, the monthly income for the purpose of calculation of compensation is arrived at as Rs.6563/-[(7000+ 25% of 7000)1/4[th] ]. The multiplicand will be Rs.78,756/- (Rs.6,563/- x 12). The correct multiplier being 14 itself, the compensation payable to the petitioner under the head loss of dependency will be Rs.11,02,584/-(78,756 x 14). It seems from the impugned award that the Tribunal has awarded a sum of Rs.4,91,400/- and therefore the sum payable in addition in the calculation now resorted to will be Rs.6,11,184/-. As rightly put forth by the **M.A.C.A.No. 398 of 2015** **9** learned counsel compensation was not awarded under the head loss of estate. When considered in the light of dictum in _**National**_ ## _**Insurance Company Limited v. Pranay Sethi [2017 (4) KLT**_ _**662 (SC)],**_ the sum payable under that conventional head being Rs.15,000/- the petitioner is found entitled to get the same. Going by the impugned award, under the head funeral expenses, it is found that against the claim of Rs.16,000/- the Tribunal has awarded Rs.30,000/-. The amount awarded under that head being excess of Rs.15,000/-, the sum fixed by the Apex Court in **Pranay Sethi** 's case (supra), Rs.15,000/- is deducted therefrom. The plea of the learned counsel to enhance the sum will not sustain, in view of the dictum cited supra and therefore is discarded. Under the head loss of love and affection, the petitioners have claimed a sum of Rs.50,000/- and the Tribunal has awarded the said sum as compensation. As noticed above, the deceased was survived by his wife aged 38 years, two minor children aged 14 and 9 years and age old parents. They must have lost the love and affection, the deceased would have showered on them had he been alive. When viewed in that perspective, Rs.50,000/- awarded by the Tribunal **M.A.C.A.No. 398 of 2015** **10** is too low and the same is fixed as Rs.25,000/- per head. Since the deceased was survived by five legal heirs and when Rs.25,000/- is taken per head, a sum of Rs.1,25,000/- is arrived at and when Rs.50,000/- awarded by the Tribunal is deducted therefrom, a sum of Rs.75,000/- is payable additionally under the head. The Tribunal has awarded a sum of Rs.50,000/- under the head loss of consortium against the claim made by the petitioners for Rs.30,000/-. When viewed in the backdrop of _**Pranay Sethi** supra_ , Rs.40,000/- being the figure liable to be awarded under that conventional head, a sum of Rs.10,000/- is deducted therefrom. In the calculation as aforesaid, a sum of **Rs.6,76,184/- (rounded off to Rs.6,76,200/-)** is found payable to the petitioners additionally. 9. In the result, the appeal stands allowed in part. The petitioners are found entitled to get an additional sum of **Rs.6,76,200/-(Rupees Six lakhs seventy six thousand two hundred only)** as additional compensation. The third respondent, the insurer shall deposit the said amount with interest at the rate of 8% per annum from the date of the claim petition till **M.A.C.A.No. 398 of 2015** **11** the date of realization, within three months from the date of receipt a copy of this judgment. 10. The learned counsel for the petitioners have pointed to this Court, Clause (e) of the decretal part of the award to contend that the deposit of the sum was ordered for an extensive period and thereby prejudice has been caused to the petitioners. Clause ## (e) reads : “e) The 3[rd] respondent shall produce another cheque for the remaining amount consolidating the amount due under both the above O.Ps. drawn in favour of the 1[st] petitioner and it will be deposited in a nationalised bank in the name of the petitioner for a period of 10 years. The 1[st] petitioner can withdraw interest once in a month from the above fixed deposit.” 11. It is seen from the above extract that the amount was not apportioned among the petitioners. Under clause (d), the third respondent was directed to produce cheques for Rs.50,000/each in favour of petitioner Nos. 1, 4 and 5 and the said amount was ordered to be paid to each of them. The entitlement of each of the petitioners for the balance amount is not specifically stated. Therefore the Tribunal shall apportion the remaining sum **M.A.C.A.No. 398 of 2015** **12** proportionately in due course after considering the entitlement of each of the petitioners and shall issue directions separately regarding the deposit of the sum in favour of the minors till attainment of their age of majority and other petitioners for a reasonable period. The parties shall bear their respective costs. ## **Sd/-** ## **MARY JOSEPH** **JUDGE** NAB