SANTHA AYYAPPANKUTTY & ROJAR MILLA v. REMESAN P.N. & THE COMMANDANT GENERAL, KERALA FIRE & RESCUE SERVICE LIMITED & THE DISTRICT INSURANCE OFFICE, KERALA STATE INSURANCE DEPARTMENT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938** **MACA.No. 1601 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 1518/2011 of M.A.C.T.,ERNAKULAM DATED 03-05-2012** ## **APPELLANTS/PETITIONERS:** **-----------------------------------** ## **1. SANTHA AYYAPPANKUTTY** **W/O.LATE AYYAPPANKUTTY, AGED 55 YEARS, PEECHAMPALLIL HOUSE, KAMBIVELIKKAKAM COLONY, THIRUVAMKULAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM.** **2. ROJAR MILLA, S/O.LATE AYYAPPANKUTTY, AGED 21, PEECHAMPALLIL HOUSE, KAMBIVELIKKAKAM COLONY, THIRUVAMKULAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM.** ## **BY ADV. SRI.MATHEWS K.PHILIP** ## **RESPONDENTS/RESPONDENTS:** - **--------------** ## **1. REMESAN P.N.** **S/O.NARAYANAN, PARTHASSERIL HOUSE, POLLASSERIL P.O., NADUVILA VILLAGE, VAIKOM TALUK, KOTTAYAM-686141.** ## **2. THE COMMANDANT GENERAL,** **KERALA FIRE & RESCUE SERVICE LIMITED, FIRE FORCE, HEAD QUARTERS, PATTOM P.O., THIRUVANANTHAPURAM - 695004.** ## **3. THE DISTRICT INSURANCE OFFICE,** **THE KERALA STATE INSURANCE DEPARTMENT, ERNAKULAM, PIN- 682030.** ## **BY GOVERNMENT PLEADER SRI.K.K.SAIDALAVI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1601 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of July, 2016 ## **JUDGMENT** ## Ravikumar, J. This appeal is filed seeking enhancement of the compensation granted under the impugned award. O.P.(MV)No.1518/2011 was filed by the appellants herein seeking compensation for the death of Ayyappankutty. They are respectively the widow and son of the deceased. He met with the accident on 02.04.2011 while going to attend his duties in a canteen attached to Bharath Petroleum Limited. He was knocked down by a tanker lorry driven by the first respondent belonging to the second respondent and insured with the third respondent. Ayyappankutty died instantaneously. It is in the said circumstances that the above mentioned claim petition has been filed under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.7 lakhs, taking up necessary averments against respondents 1 to 3, who are respectively the driver, owner and insurer of the offending MACA No.1601/2012 2 vehicle. Before the Tribunal, no oral evidence was adduced by both parties and on the side of the appellants, Exts.A1 to A12 were got marked. There was no documentary evidence on the side of the respondents. The Tribunal passed the impugned award on appreciation of the evidence on record and the rival contentions, for a total compensation of Rs.2,96,500/- with interest @ 8% per annum from the date of petition till realization. It is dissatisfied with the quantum of compensation that this appeal has been preferred. 2. We have heard the learned counsel for the appellant and also the learned Government Pleader appearing for the respondents. No appeal has been preferred by the respondents against the impugned award. Therefore, the respondents cannot dispute the accident, insurance coverage of the offending vehicle as also the cause of the accident as the negligence from the part of the first respondent who was driving the offending vehicle. 3. The learned counsel appearing for the appellants contended that in the claim petition, it was specifically averred that the deceased Ayyappankutty was working as a supplier in a canteen attached to MACA No.1601/2012 3 Bharath Petroleum Ltd. and was earning an amount of Rs.8,000/-. It is further contended that the Tribunal discarded the said contention specifically taken up in the claim petition and fixed the monthly income notionally as Rs.3,500/-. According to the learned counsel, it is the erroneous fixation of the monthly income that resulted in deprivation of just compensation to the appellants. The other grievance is relating inadequacy of compensation granted under different heads. As against a claim of Rs.25,000/-, the Tribunal granted only a sum of Rs.7,500/-, towards funeral expenses, as against the claim of Rs.50,000/- towards loss of love and affection, the Tribunal awarded only a sum of Rs.20,000/-. An amount of Rs.10,000/- only was given towards loss of consortium. In such circumstances, they require appellate modification, it is contended. 4. The learned Government Pleader resisted the contentions contending that a perusal of the impugned judgment would reveal that all the relevant factors were taken into account by the Tribunal and virtually the Tribunal has granted just compensation to the appellants. It is contended that deceased Ayyappankutty was aged 59 years on the MACA No.1601/2012 4 day of death and the appellants had not adduced any evidence to establish the occupation and income of deceased Ayyappankutty. In the said circumstances, the learned Government Pleader submitted that the Tribunal is justified in fixing the monthly income notionally at Rs.3,500/-. So also, it is contended that a perusal of the schedule appended to the judgment would reveal that taking into account all relevant factors, adequate compensation was granted by the Tribunal under each and every head. In short, according to the learned Government Pleader, no appellate interference is called for. 5. We will firstly consider the question whether the Tribunal went wrong in fixing the monthly income. True that in the claim petition, the appellants have claimed that deceased Ayyappankutty was working as a supplier in the canteen attached to Bharath Petroleum Ltd. The nature of the employment is not clearly established. Still, the fact that he was working as a supplier therein is seen recorded in Ext.A4 inquest report. But at the same time, it is correct to say that the appellants have not adduced any evidence to establish the income of the deceased Ayyappankutty. Still, one cannot lose sight of the MACA No.1601/2012 5 decision of the Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. ( 2011(13) SCC 236)** , wherein the Apex Court fixed the monthly income of a coolie who met with an accident in 2004 at Rs.4,500/- for calculation purpose in the matter of fixation of monthly income. The incident in question occurred long later i.e. about 7 years after the incident involved in **Ramachandrappa's** case. On the date of the accident, Ayyappankutty was aged 59 years. Taking into account the age of the deceased and the year of the accident, we are of the view that it is only appropriate and just to take the monthly income as Rs.5,500/-. It is accordingly fixed. There is no dispute with respect to the multiplier adopted. Evidently, the Tribunal took the multiplier with reference to the age of the deceased and it was correctly taken as 9. Taking note of the number of dependents and the dictum laid down by the Apex Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** , 1/3 of the income has to be deducted towards personal expenses. In the light of the fixation of the monthly income by us, the amount available under the head loss of dependency has to be re-assessed. Based on such re-assessment, the MACA No.1601/2012 6 appellant would be entitled to get an additional amount of Rs.1,44,000/- ( 5500 x 12 x 9 x 2/3 = 396000 – 252000). 6. Towards funeral expenses, the appellants claimed an amount of Rs.25,000/- and the Tribunal granted only an amount of Rs.7,500/-. One cannot expect the kith and kin of a deceased person to keep receipts or other evidences in respect of the expenses relating to funeral. Taking into account the year of the accident and the expenses for conducting obsequies, we are of the view that it is only just and proper to award Rs.25,000/- under that head. Taking note of the fact that the Tribunal has already awarded an amount of Rs.7,500/- under that head, the appellants are entitled to get an additional amount of Rs.17,500/- under that head. 7. Towards compensation for loss of consortium, no amount was claimed. But the Tribunal granted an amount of Rs.10,000/-. Taking note of the age of the first appellant, we are of the view that it will be only just and proper to grant a further amount of Rs.30,000/under the head of loss of consortium to the first appellant, the widow of deceased Ayyappankutty. MACA No.1601/2012 7 8. Towards loss of love and affection, the Tribunal has granted an amount of Rs.20,000/- as against the claim of Rs.50,000/-. Certainly, the second appellant is entitled to get the said amount. In the light of the discussion as above, the appellants are entitled to get an enhanced compensation of Rs.1,91,500/- with interest @ 8% per annum from the date of petition till realization. It is awarded. The third respondent is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest @ 9% per annum. It is made clear that only the first appellant will be entitled to get Rs.30,000/- granted by us towards loss of consortium and balance amount alone will be available for apportionment in between the appellants in the same ratio as has been determined by the Tribunal. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **` K.P.JYOTHINDRANATH, JUDGE** sv. 13/07/2016