Sainaba and others v. Srirangan and The United India Insurance Ltd., MACA No. 552 of 2007 (Kerala High Court)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **SATURDAY, THE 5TH DAY OF OCTOBER 2013/13TH ASWINA, 1935** **MACA.No. 552 of 2007 ( )** **---------------------------------AGAINST THE AWARD IN OPMV 1067/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR.** **........** ## **APPELLANTS/PETITIONERS:** **-----------------------------------------** **1. SAINABA , W/O.PAREED,AGED 49 YEARS, KUPPIYAN HOUSE, CHELAMATTAM KARA, OKKAL P.O. CHELAMATTAM VILLAGE, KUNNATHUNADU TALUK.** **2. MAHIN, S/O. PAREED, -DO- -DO-** **3. SHYLA, D/O. PAREED, -DO- -DO-** **4. SHEMEENA, D/O. PAREED,-DO- -DO-** **BY ADV. SRI.K.K.MOHAMED RAVUF** **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** **1. SRIRANGAN, S/O.SRI.M.MUTHU COUNDER, 123/3, KANKARAI ROAD, SEETHARAM PALAYAM (POST) THIRUCHENGODE TALUK, NAMAKKAL DISTRICT, TAMIL NADU-99999.** - **2. GANESAN R., S/O. RAMAIAH, 100 NADAR STREET, SANGODAM PALAYAM, THIRUCHENGODE TAMIL NADU. (DELETED)** - **RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAYT AT THE RISK OF THE APPELLANTS VIDE ORDER DATED. 10.9.2013 IN IA. 2255/2013** - **IN MACA. 552/2007.** **3. THE UNITED INDIA INSURANCE LTD., 146 N, KUMAR COMPLEX, THIRUCHENGODU 99999, TAMIL NADU.** **R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A.No.552 of 2007 -----------------------------------------------------------------Dated this the 5[th] day of October, 2013 J U D G M E N T ## K. Ramakrishnan, J The claimants in O.P.(M.V.) No.1067/2002 on the file of the Motor Accidents Claims Tribunal, Perumbavoor are the appellants herein. The appellants who are the wife and children of deceased Pareed, who died in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent filed the application for compensation for the death of their breadwinner. After considering the evidence on record, the tribunal found that the accident occurred due to the rash and negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of 3,08,854/- on various heads as₹ follows: M.A.C.A.No.552 of 2007 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of dependency|208104| |2|Transportation expenses|10000| |3|Damage to clothing|250| |4|Funeral expenses|5000| |5|Pain and sufferings|15000| |6|Loss of consortium|15000| |7|Loss of love and affection|15000| |8|Loss of estate|2500| |9|Treatment expenses|47000| ||Total|308854| Dissatisfied with the quantum of compensation awarded, the appellants have come before this court with the above appeal. 2. Heard the counsel for the appellants and counsel for the insurance company. 3. The counsel for the appellants submitted that the deceased was aged 49 years and a businessman, earning monthly income of 8,000/- per month at the₹ time of his death but, the tribunal has taken into only ₹ 2,000/- as his monthly income, which is on the lower side. Further, there are four dependants and as per the 3 ## M.A.C.A.No.552 of 2007 decision of **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the tribunal ought to have deducted only 1/4[th] for the personal expenses of the deceased instead of 1/3[rd ] deducted. If a recalculation is made on that basis, loss of dependency is on the lower side. The deceased was treated as in-patient for 9 days and thereafter, he succumbed to the injuries. So the amount awarded under the head pain and suffering is also on the lower side. The first appellant who is the wife of the deceased is aged 44 years at the time of the death of her husband and the amount awarded under the head loss of consortium is also on the lower side. The learned counsel also submitted that the amount awarded under the head love and affection, loss of estate are also on the lower side. The appellants are entitled to get enhancement on all heads. 4. On the other hand, the learned counsel for M.A.C.A.No.552 of 2007 4 the insurance company submitted that in the absence of any convincing evidence adduced on the side of the appellants to prove the occupation or income of the deceased, the tribunal was perfectly justified in notionally fixing the income as 2,000/- per month. Further the₹ appellants 2 and 3 are major children and they cannot said to be the dependants of the deceased. So the tribunal was perfectly justified in deducting 1/3[rd] for the personal expenses. The total compensation awarded is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. Though the appellants have a case that the deceased was a businessman and getting 8,000/- per₹ month, no evidence was adduced either oral or documentary to prove his income. But at the same time, M.A.C.A.No.552 of 2007 5 considering the fact that the accident occurred on 23.05.2002 and the deceased was aged 49 years and considering the social circumstances and cost of living during that period, it cannot be said that the deceased would be getting a monthly income of not less than ₹ 2,500/- per month. So, we enhance the monthly income fixed by the tribunal as 2,500/- instead of 2,000/- fixed₹ ₹ by the tribunal. As rightly pointed out by the counsel for the insurance company, the appellants 2 and 3 are major children. There is no evidence adduced to prove that they were also depending on the income of the deceased. So under the circumstances, the tribunal was perfectly justified in taking appellant Nos.1 and 4 alone as dependents and on that basis, taken 1/3[rd] as the expenses to be deducted for the personal expenses of the deceased in order to arrive at the quantum of compensation to be awarded under the head loss of dependency. We are not 6 M.A.C.A.No.552 of 2007 inclined to interfere with the same. If the monthly income of the deceased is taken as 2,500/- per month,₹ then the appellants will be entitled to get an amount of ₹2,60,000/- under the head loss of dependency instead of ₹ 2,08,104/- awarded by the tribunal. We award that amount under that head. 7. The first appellant was aged only 44 years and she had three children, one among them was a minor and disabled at the time of death of her husband. There is no possibility of any re-marriage as far as the first appellant is concerned. So, she will have to be live without the support of her husband for the remaining period of her life. So considering this fact, we feel that the amount of 15,000/- awarded by the tribunal under₹ the head loss of consortium is also on the lower side and we enhance the same to 30,000/- from 15,000/-. We₹ ₹ are also enhancing the compensation awarded under the M.A.C.A.No.552 of 2007 7 head love and affection to 30,000/- from 15,000/-₹ ₹ awarded by the tribunal. For loss of estate, the amount awarded is also on the lower side and we enhance the same to 5,000/- from 2,500/-. ₹ ₹ 8. It is an admitted fact that the deceased died after 9 days of the accident. So the amount awarded under the head pain and suffering suffered by the deceased is also on the lower side. We enhance the same to 20,000/- from 15,000/-. We are not inclined to₹ ₹ enhance any amount under other heads. In all, the appellants will be entitled to an additional compensation of 89,396/-, which we round of to 89,500/-, over and₹ above what has been awarded by the tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest from the date of the claim petition, till date of payment. This amount is directed to be shared between the appellants 1 and 4 alone and the amount due to the 8 M.A.C.A.No.552 of 2007 4[th] appellant shall be deposited in a nationalised bank with liberty for the first appellant to withdraw the interest accrued on the same. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss