SANTHAMMA and others v. VASUDEVAN NAMPOOTHIRI and NATIONAL INSURANCE 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 THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 MACA.No. 1876 of 2008() ----------------------OPMV.938/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. SANTHAMMA, AGED 51 YEARS, ASHA NILAYAM, AREEKARA MURI, MULAKKUZHA VILLAGE. 2. KARTHYAYANI AMMA, AGED 77 YEARS, ASHA NILAYAM, AREEKARA MURI, MULAKKUZHA VILLAGE. 3. ASHA BALAN, AGED 27 YEARS, ASHA NILAYAM, AREEKARA MURI, MULAKKUZHA VILLAGE. 4. ANU BALAN, AGED 25 YEARS, ASHA NILAYAM, AREEKARA MURI, MULAKKUZHA VILLAGE. 5. AJITHA BALAN, AGED 23 YEARS, ASHA NILAYAM, AREEKARA MURI, MULAKKUZHA VILLAGE. BY ADV. SRI.V.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. VASUDEVAN NAMPOOTHIRI, S/O.MADHAVAN NAMPOOTHIRI, EDAYANETH ILLAM, KURAMPALA, PANDALAM. 2. NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, PATHANAMTHITTA. ADV. SRI.K.SASIKUMAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A No.1876 of 2008 ---------------------------------------Dated this the 21[st] day of January 2010 ## **J U D G M E N T** ## **Basant,J** Claimants are the appellants. They are the wife aged 40 years, mother aged 66 years and 3 minor children aged 16,14 and 12 years respectively of the deceased. The deceased suffered injuries in a motor accident which took place on 30/03/1997. He was admitted in the hospital and while undergoing treatment succumbed to his injuries on 02/04/1997. He was running a provision store and it was claimed that the monthly income is Rs.6,000/-. The petition was amended and an amount of Rs.5,00,000/- was claimed as compensation. 2. The tribunal on an anxious consideration of all the relevant materials available came to the conclusion that the appellants are entitled to a total amount of Rs.3,08,000/- as compensation as per the details given below: |||Rs.| |---|---|---| |1.|Loss of dependency|2,60,000/-| ||(Rs.2,500/- x 12 x 2/3 x 13)|| |2.|Funeral and other allied|5,000/-| ||expenses|| M.A.C.A No.1876/08 2 |3.|Pain and sufferings endured by|5,000/-| |---|---|---| ||the deceased|| |4.|Medical and treatment expenses|5,000/-| |5.|Loss of consortium to the|10,000/-| ||1stpetitioner|| |6.|Loss of love and affection to the|10,000/-| ||other petitioners|| |7.|Loss of estate/loss of expectation|10,000/-| ||of life|| |8.|For transportation expenses|2,000/-| |9.|Damage to clothing and articles|1,000/-| |||-------------| ||**Total**<br>|**3,08,000/-**| |||**======**| 3. The appellants/claimants claim to be aggrieved by the impugned award. What is their grievance? Called upon to explain the nature of challenge which the appellants want to mount against the impugned award, the learned counsel for the appellants first of all contends that the monthly income of the deceased reckoned by the tribunal is grossly and painfully low. Only an amount of Rs.2,500/- was reckoned by the tribunal to be the income of the deceased. The learned counsel for the appellants submits that the accident had taken place in 1997. Even for a non-earning person, the 2[nd] schedule to the M.V.Act introduced in 1994 permits the drawal of a presumption of M.A.C.A No.1876/08 3 prudence that his income is Rs.1,250/-. So far as the deceased was concerned, he was aged 48 years. He was the head of a family consisting of a wife, aged mother and three minor children in addition to himself. Reasonable inferences should have been drawn by the tribunal in the wake of the undisputed facts available. In addition to all this, Ext.A14 and other pieces of evidence have been produced to show that the deceased was running a provisions store. The learned counsel for the appellants submits that, in these circumstances, the tribunal acted unrealistically in reckoning only Rs.2,500/- as the monthly income of the deceased. 4. The learned counsel for the appellant contends that the quantum of compensation paid for loss of dependency suffers from another vital defect. The deceased was the head of a family consisting of six members including the claimant. Following the dictum in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** , personal expenses of the deceased must have been realistically taken into account. The tribunal had taken 1/3[rd] as the amount liable to be deducted for the personal expenses of the deceased. The learned counsel relies on the decision in **Sarla** (Supra) to contend that where the dependent family consisting of more than four persons, the permissible reduction is only 1/4[th] and not 1/3[rd] . M.A.C.A No.1876/08 4 In these circumstances, the learned counsel for the appellants submits that the quantum of compensation for loss of dependency deserves to be enhanced. 5. The learned counsel for the appellants then contends that while awarding compensation for pain and suffering and medical and treatment expenses at Rs.5,000/- each the tribunal did not at all consider the fact that the fatal injuries suffered by the deceased had obliged him to remain in the hospital and undergo active treatment from 30/03/1997 to 02/04/1997. In such situation, it is extremely artificial to expect the dependents of the deceased to keep meticulous accounts and vouchers for the expenses incurred. Taking into account all necessary circumstances, a proper, fair, reasonable and just amount ought to have been awarded under the head of pain and suffering and medical and miscellaneous expenses We find force in that contention. 6. After considering all these contentions, we are satisfied that the appellants are entitled to a further amount of Rs.1,01,000/- as compensation in addition to the amounts awarded by the tribunal. 1. Pain and suffering (Rs.10,000/- minus Rs.5,000/-) Rs.5,000/- M.A.C.A No.1876/08 5 2. Medical, treatment and miscellaneous expenses for their Rs.5,000/period 30/03/1997 to 02/04/1997 (Rs.10,000/- minus Rs.5,000/-) 3. Loss of dependency Rs.91,000/(Rs.3,000/- x 12 x 13 x 3/4= Rs.3,51,000/- minus Rs.2,60,000/-) **Total Rs.1,01,000/-** 7. In the result, a) This M.A.C.A is allowed in part. b) In addition to the amounts awarded by the tribunal, the appellants/claimants are found entitled to a further amount of Rs.1,01,000/- (Rupees one lakh one thousand only) as per the details shown above. c) Needless to say, the entire amount of compensation shall carry interest @ 7.5% p.a from the date of the petition to the date of payment. d) All other directions of the tribunal are upheld. Appropriate fresh directions shall be issued by the tribunal regarding release/deposit of the compensation. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A No.1876/08 6 M.A.C.A No.1876/08 7 M.A.C.A No.1876/08 8 **R.BASANT & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 29/07/2009