RUKHIYABI K.P. and others v. SADANANDAN and THE NEW INDIA ASSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 MACA.No. 2716 of 2008() ----------------------OPMV.1808/2004 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): -------------- 1. RUKHIYABI K.P., AGED 32 YEARS, W/O. LATE MARAKKAR. 2. RUBEENS K.P. AGED 18 YEARS, D/O. LATE MARAKKAR. 3. SABEER K.P., AGED 16 YEARS, S/O. LATE MARAKKAR (MINOR), REP. BY MOTHER, 1ST PETITIONER, 4. KADEESAI, AGED 65 YEARS, M/O. LATE MARAKKAR, ALL RESIDING AT KAYINGAYILPARAMBA, FEORKE P.O., NALLUR, KALLITHODI, KOZHIKODE DIST. BY ADV. SMT.T.V.NEEMA RESPONDENT(S): RESPONDENTS:- ---------------------------- 1. SADANANDAN, S/O. APPU, VADAKKAPARAMBIL HOUSE, P.O. NANMINDA, KOZHIKODE DIST. 2. THE NEW INDIA ASSURANCE CO. LT., POOTHERI BUILDING, FEROKE, KOZHIKODE DISTRICT. ADV. SRI.VIJU THOMAS FOR R2 SMT.M.MEENA JOHN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No.2716 of 2008 ------------------------------------------------Dated this the 25[th] day of October, 2011** ## **JUDGMENT** ## **Basant,J.** Claimants are the appellants. They are the wife aged 32 years, daughter aged 18 years, son aged 16 years and mother aged 65 years of deceased Marakar who suffered injuries in a motor accident which took place on 10/12/2003. He was rushed to the hospital. He succumbed to the injuries on the same day while undergoing treatment. Against a claim of Rs.6,00,000/-, the tribunal awarded a total amount of Rs.2,60,000/- as per the details given in paragraph 8 of the impugned award which we extract below: |Dependency|:|2,40,000/-| |---|---|---| |(2,000 x 12 x 2/3 x 15)||| |Consortium|:|10,000/-| |Pain and suffering|:|5,000/-| |Medical expenses|:|1,000/-| |(No bill)||| ## **M.A.C.A. No.2716 of 2008** -: 2 :- Transportation : 1,500/Funeral expenses : 2,500/-------------Total : **2,60,000/-** ====== 2. Insurance company has been made entirely liable to satisfy the award. We have heard the learned counsel for the appellants and the learned counsel for the insurance company. The impugned award is assailed on the short ground that the quantum of compensation awarded is too meagre. 3. Called upon to explain and be specific, the learned counsel for the appellants first of all contends that the monthly income of the deceased reckoned by the tribunal at Rs.2,000/- is unrealistically low. The deceased was employed as a Khalasi. It was claimed that the monthly income was Rs.6,000/-. Satisfactory evidence in support of the same has not been produced. The learned counsel for the appellants submits that, at any rate, the tribunal, even in the absence of better evidence, should not have shirked its responsibility to come to reasonable and fair conclusions. 4. The Tribunal ought to have noted that the wife and two children of the deceased, in addition to him, were, at any rate, depending solely on the income of the deceased. The Tribunal should have realistically taken note of the presumption of **M.A.C.A. No.2716 of 2008** -: 3 :- prudence available under Clause (6) of the Second Schedule to the Motor Vehicles Act from 1994. The Tribunal should have also taken note of the precedents of the Supreme Court in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi v. Mohammad Tabbar** (2008 ACJ 1488) wherunder the Supreme Court had held that it would be reasonable to assume that even a non-earning home maker and an unskilled manual worker would be getting a monthly income of `3,000/-. The learned counsel for the appellants further submits that appropriate provision for future improvement in the earnings should also have been provided as held in **Sarla Verma v. Delhi** **Transport Corporation** [(2009) 6 SCC 121]. Taking all the relevant circumstances into account, we find that the challenge raised by the appellants deserves to be accepted. We are satisfied that `3,250/- can safely be reckoned as the monthly income while ascertaining the quantum of compensation payable for loss of dependency. The learned counsel for the insurance company points out that following **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] 14 and not 15 should have been reckoned as the multiplier. We accept that submission of the learned counsel for the insurance company. 5. For loss of consortium, only an amount of `10,000/- has ## **M.A.C.A. No.2716 of 2008** -: 4 :- been paid. Deceased was aged about 41 years and the 1[st] claimant was aged 32 years. We are satisfied that an amount of `20,000/ can safely be fixed as compensation payable for loss of consortium. 6. For loss of love and affection, no amount has been awarded as compensation for the claimants. We are satisfied that an amount of `15,000/- can safely be fixed as the quantum of compensation payable for loss of love and affection. 7. Serious injuries were suffered by the deceased who succumbed to such injuries after a lapse of some time at the hospital. Only an amount of `5,000/- has been awarded as compensation for pain and suffering. We agree that `10,000/can be awarded as compensation under this head. 8. For loss of estate, no amount has been awarded as compensation. We are satisfied that an amount of `5,000/- can globally be fixed as the quantum of compensation payable under that head. 9. We are not persuaded to agree that the amount awarded under any other head deserves or warrants modification/ enhancement. 10. On the basis of the above discussions, we come to the conclusion that the claimants are entitled to a further amount of `1,59,000/- (Rupees one lakh and fifty nine thousand only) as ## **M.A.C.A. No.2716 of 2008** -: 5 :- compensation as shown below in addition to the amount already awarded by the Tribunal: 1. Pain and suffering - (`10,000/- minus `5,000/-) `5,000/- 2. Loss of consortium - (`20,000/- minus `10,000/-) `10,000/- 3. Loss of love and affection (no amount awarded by the - Tribunal) `15,000/- 4. Loss of estate (no amount awarded by - the Tribunal) `5,000/- 5. Loss of dependency (`3,250/- x 12 x 2/3 x 14 = - `3,64,000/- minus `2,40,000/-) `1,24,000/--------------- - Total `1,59,000/======= 11. The Tribunal awarded only an amount of `2,000/- as costs. The learned counsel for the appellants argues and we agree that proportionate cost in the proceedings before the Tribunal for the entire amount of compensation awarded is liable to be paid as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). ## 12. **In the result:** (a) This appeal is allowed in part. (b) The appellants are found entitled to a further amount of `1,59,000/- (Rupees one lakh and fifty nine thousand only) in ## **M.A.C.A. No.2716 of 2008** -: 6 :- addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the Tribunal in the impugned award. (d) We direct that proportionate cost be paid in the proceedings before the court below on the entire amount of compensation as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). - (e) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge)** **Sd/-** **M.C. HARI RANI (Judge)** ## **Nan/** **//true copy// P.S. to Judge** # **M.A.C.A. No.2716 of 2008** -: 7 :-