Reni and others v Subhash Babu and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938 MACA. No.1070 of 2016 () ------------------------AWARD IN OP(M.V) NO.1637/2010 ON THE FILES OF M.A.C.T., KOZHIKODE DATED 27-05-2011. APPELLANT(S)/PETITIONERS: -------------------------------- 1. RENI, W/O.(LATE) JIJU P, AGED 29 YEARS.. 2. ANI, D/O.JIJU P, AGED 5 YEARS, DATE OF BIRTH 20/5/2009, REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN RENI 3. ALPHONSA, W/O.JOSEPH, AGED 53 YEARS.. 4. JOSEPH, AGED 55 YEARS, ALL ARE RESIDING AT PALPARAMBIL HOUSE, P O CHEVAYOOR, KOZHIKODE. BY ADVS.SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN RESPONDENT(S)/RESPONDENTS: ------------------------------------ 1. SUBHASH BABU, S/O.PRAHLADA , RESIDING AT 15/725,ABILASH, P O VELLIPARAMBA, KOZHIKODE 673008. 2. RIYAS M, S/O.MUHAMMED, RESIDING AT MURDAF, P O POOVATTUPARAMBU, KOZHIKODE 673008. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE KODINGALLUR, MANAPPAT BUILDING, NORTH NADA KODINGALLUR-680664. R3 BY ADVS. SRI.R.AJITH KUMAR (128/84) SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KRJ ## **P. N. RAVINDRAN & A. MUHAMED MUSTAQUE, JJ** = = = = = = = = = = = = = = = = = M.A.C.A No.1070 of 2016 = = = = = = = = = = = = = = = = = = Dated this the 15[th] day of July, 2016 ## **JUDGMENT** ## Ravindran, J The appellants are the claimants in O.P(MV) No.1637 of 2010 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. They are the wife, minor daughter and parents respectively of late P.Jiju, a welder aged 34 years, who sustained fatal injuries in a motor accident that took place on 8.3.2010. 2. The appellants had in the claim petition averred that while the victim of the accident was riding his scooter, a stage carriage owned by the first respondent, driven by the second respondent, and insured with the third respondent collided with his scooter and in that accident, the victim sustained serious injuries and while undergoing treatment at Medical College Hospital, Kozhikode, he succumbed to the injuries on the same day. They contended that the accident took **-:2:-** MACA.1070/16 place solely on account of the negligence of the second respondent, the driver of the stage carriage. 3. Upon receipt of notice, the owner of the stage carriage entered appearance and filed a written statement admitting his ownership over the vehicle, but denying the allegation of negligence against the second respondent. It was contended that the stage carriage was covered by a valid policy of insurance issued by the third respondent and, therefore, the third respondent is liable to pay the compensation, if any, awarded by the tribunal. The second respondent entered appearance and filed a written statement admitting the fact that he was driving the bus at the relevant time. He contended that he possessed a valid driving licence and that if any compensation is payable, it is to be paid by the third respondent. The third respondent insurer entered appearance and filed a written statement admitting the insurance coverage but contending that the accident took place solely on account of the negligence of the victim **-:3:-** MACA.1070/16 of the accident. It also contended that the driver of the motor car bearing Reg. No.KL-11/X-5132 which hit against the stage carriage, (even according to the claimants, the stage carriage had collided with the said motor car after hitting the scooter) was responsible for the accident. Though the appellants had in the claim petition averred that the victim was a welder employed in Five Star Industries, Kuttikattoor, and was earning a monthly income of ₹8,500/-, the third respondent did not take the stand that the victim was not a welder. It had however, stated in paragraph 4 of the written statement that it does not admit the age, occupation and income of the deceased shown in the petition. It had further stated that the petitioners are put to strict proof of the same. 4. Before the Motor Accidents Claims Tribunal, no oral evidence was adduced on either side. However, on the side of the claimants, Exts.A1 to A5 were produced and marked. After considering the rival contentions, the tribunal held, relying on the **-:4:-** MACA.1070/16 police records, that the accident took place due to the negligence of the second respondent. The tribunal also held relying on Ext.A2 postmortem report that the victim of the accident died on account of the injuries sustained by him in the motor accident that took place on ## 8.3.2010. The tribunal thereafter awarded the sum of ₹6,27,000/- as compensation under various heads as shown below: |Heads of claims|Amount|Amount|Details| |---|---|---|---| ||claimed|allowed|| |1. Transport to hospital|Rs.2,000|Rs.2,000|| |2. Damage to clothing|Rs.2,000|Rs.1,000|| |3. Funeral expenses|Rs.6,000|Rs.3,000|| |4. Treatment expenses|Rs.5,000|Rs.5,000|| |5. Loss of consortium|Rs.30,000|Rs.10,000|| |6. Loss of estate|Rs.50,000|Rs.10,000|| |7. Loss of love and affection|Rs.30,000|Rs.10,000|| |8. Pain and suffering to the|Rs.40,000|Rs.10,000|| |victim|||| |9. Loss of dependency|Rs.6,00,000|Rs.5,76,000|Rs.4000x12x16x3/4| ||----------------------------------------||| ||Total|Rs.6,27,000|| ||---------------------------------------------||| ## 5. Since the third respondent had not pleaded or proved breach of policy conditions, the third respondent was directed to deposit the **-:5:-** MACA.1070/16 said amount together with interest @ 7% per annum from 1.11.2010, the date of petition, till the date of deposit along with costs quantified at ₹2,000/-. The claimants have, dissatisfied with the quantum compensation awarded by the tribunal, filed this appeal. 6. We heard Smt. Mariam G.M.Tharakan, learned counsel appearing for the appellants and Sri. R.Ajith Kumar Varma, learned counsel appearing for the third respondent. Notice to respondents 1 and 2 viz., the owner and driver of the stage carriage insured by the third respondent was dispensed with for the reason that the third respondent does not dispute its liability to indemnify them. 7. The victim of the accident was aged 34 years. He had left behind his wife aged 29 years, his minor daughter aged one year and his parents aged 53 and 55 years respectively. The tribunal has awarded only ₹10,000/- as compensation under the head loss of love and affection and a like sum as compensation under the head loss of v. consortium. The Apex Court has in **Rajesh Rajbir Singh** [2013 (3) **-:6:-** MACA.1070/16 KLT 89 (SC)] held that in the case of death of spouse, the surviving spouse should be awarded atleast ₹1,00,000/- for loss of consortium. The respondents have no case that the wife of the victim has remarried. We, therefore, deem it appropriate to award to the appellants /claimants an additional sum of ₹90,000/- as compensation under the head loss of consortium. 8. As stated earlier, the victim had left behind his wife aged 29 years, his minor daughter aged one year and his parents aged 55 and 53 years respectively. The tribunal has, however, awarded only ₹10,000/- as compensation under the head loss of love and affection. Taking the cue from the decisions of the Apex Court in **Amrit Bhanu Shali and Others** v. **National Insurance Company Limited** [(2012) 11 Supreme Court Cases 738] and _**Rajesh**_ (supra), we are of the opinion that on a modest estimate, a consolidated sum of ₹1,00,000/can be awarded as compensation under the head loss of love and affection. We, accordingly award to the appellants/claimants an **-:7:-** MACA.1070/16 additional compensation of ₹90,000/- under that head. 9. The Apex Court has in _**Rajesh**_ (supra) held that in the absence of evidence to the contrary for higher expenditure, the sum of ₹25,000/- should be awarded towards funeral expenses. In the instant case, the tribunal has awarded only ₹3,000/- as compensation under that head. We, accordingly award to the appellants a further sum of ₹22,000/- as compensation under the head funeral expenses. The tribunal has awarded compensation for loss of dependency taking the monthly income of the victim as ₹4,000/-. The tribunal has held that though in the claim petition it has been stated that the victim was earning ₹8,500/- per mensem, no evidence has been adduced to prove the said fact. The tribunal has, however, held that considering the fact that the victim was aged 34 years and he was a welder, ₹4,000/- can be taken as his monthly income. In our opinion, when in the case of unskilled labourers, ₹4,500/- is taken as income for the purpose of computing the loss of dependency, as was done in **-:8:-** MACA.1070/16 v. **Ramachandrappa The Manager, Royal Sundaram Aliance Insurance Company Limited** (AIR 2011 SC 2951) there is no reason or justification for not applying the same yardstick in the case of a welder. In our opinion, having regard to the ground realities and the wage structure prevailing in the State of Kerala at the relevant time, this court will be perfectly justified in awarding compensation for loss of dependency on the basis that victim was earning a monthly income of ₹5,000/-. The victim owned a scooter. He was riding it when he met with the accident. He was maintaining a family consisting of himself, his wife, minor daughter and his parents. By no stretch of imagination can it therefore be said that his monthly income was only ₹4,000/-. However, in the absence of any material to show that he was, in fact, earning a monthly income of ₹8,500/-, we deem it appropriate to estimate his monthly income at ₹5,000/per mensem. 10. It is now well settled by a series of decisions of the Apex **-:9:-** MACA.1070/16 Court, including the decision in _**Rajesh**_ (supra), that even in the case of those in the unorganised sector, future prospects can be taken in account and that in the case of victims below the age of 40 years, 50% of the monthly income can be reckoned for the said purpose. The victim in the case on hand was aged 34 years. The multiplier to be applied is 16. As he was maintaining a family consisting of his wife, minor daughter and his parents and the number of the dependents was 4, only 1/4[th] of the income is liable to be deducted towards personal expenses. Computed on the aforesaid basis, the compensation payable to the appellants/claimants under the head loss of dependency will be ₹5,000/- x 150% = ₹7,500/- x 12 x 16 x ¾ = ₹10,80,000/-. The tribunal has awarded only ₹5,76,000/- under that head. We accordingly, award to the appellants an additional compensation of ₹5,04,000/- under the head loss of dependency. The compensation awarded under the other heads does not, in our opinion, call for any enhancement. MACA.1070/16 **-:10:-** We, accordingly allow the appeal and award to the appellants/claimants an additional sum of ₹7,06,000/- (₹90,000/- + ₹90,000/- + ₹22,000/- + ₹5,04,000/-) as compensation over and above the compensation awarded by the Motor Accidents Claims Tribunal. The third respondent insurer shall deposit the said amount together with interest @ 9% per annum from the date of petition till the date of deposit within three months from today. Needless to say, the appellants will not be entitled to interest on the enhanced compensation awarded by this court during the period of 1032 days as directed in the order passed by this court on C.M.Appln. No.1314 of 2016 while condoning the delay of 1032 days in filing the appeal. Upon such deposit being made, 50% of the amount shall be kept in fixed deposit in the name of the second claimant minor till she attains the age of 21 years. The balance amount shall be apportioned among claimants 1, 3 and 4 in the ratio 2:1:1. The compensation payable to the claimants 3 and 4 shall be disbursed to them in full. From out of **-:11:-** MACA.1070/16 the compensation payable to the first claimant, the sum of ₹1 lakhs shall be disbursed to her and the balance amount shall be kept in fixed deposit in her name for a period of three years. It will be open to the first claimant to withdraw the interest accruing on the amount deposited in her name every quarter and to move the tribunal if necessity arises, for permission to withdraw the interest accruing on the deposit in the name of the minor claimant. sd/P.N.Ravindran, Judge sd/A.Muhamed Mustaque, Judge krj.16/7/16 //true copy// P.A to Judge