Sarala, Soumya and Soubish v. Ansal Kadavilparambu (H) and ICICI Lombard General Insurance Co. Ltd., and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939 MACA.No. 1192 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1860/2008 of M.A.C.T., KOTTAYAM DATED 28-12-2011 APPELLANT(S)/PETITIONERS IN O.P.(MV): ---------------------------------------------- ## 1. SARALA MOOLEKKAL HOUSE, POOZHIKOL P.O., KOTTAYAM ## 2. SOUMYA MOOLEKKAL HOUSE, POOZHIKOL P.O., KOTTAYAM ## 3. SOUBISH MOOLEKKAL HOUSE, POOZHIKOL P.O., KOTTAYAM. BY ADVS.SRI.A.P.SUBHASH SMT.T.SUJA SRI.GIREESH C.H. RESPONDENT(S)IN M.A.C.A/RESPONDENTS IN O.P (MV): ------------------------------------------------- 1. ANSAL KADAVILPARAMBU (H), ELOOR KARA, ERNAKULAM DIST-683 501 2. SIMILAL MOOTHERIYIL HOUSE, VAIKOM - 686 141 3. THE ICICI LOMBARD GENERAL INSURANCE CO.LTD KOTTAYAM - 686 001 R3 BY ADV. SRI.R.AJITH KUMAR VARMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.1192 OF 2012** **==========================** Dated this the 17[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 28.12.2011 passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV).No.1860 of 2008. The appellants/petitioners moved the said claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the death of one Purushothaman, the husband of the first appellant and the father of appellants 2 and 3. The accident in which Purushothaman lost his life had occurred on 22.7.2008 at 5.15 p.m. While he was travelling as a pillion rider on the motor cycle bearing Reg.No.KL 5/H 4022, the said motor cycle was knocked down by the lorry bearing Reg.No.KL 3/A 1999, driven by the first respondent. While undergoing treatment **M.A.C.A.1192/2012** 2 at Medical College Hospital, Kottayam, Purushothaman died on 30.7.2008. It is in the said circumstances that the above mentioned claim petition was filed seeking a total compensation of Rs.10 lakhs. The said claim petition was enquired into along with O.P. (MV).No.1861 of 2008 filed by the rider of the motor cycle in which Purushothaman was travelling at the time of the accident. The only evidence available before the Tribunal was the documentary evidence consisting of Exts.A1 to A10 on the side of the appellants/petitioners. The Tribunal awarded a total compensation of Rs.4,54,550/- with interest at the rate of 7.5% per annum from the date of the petition till realisation. This appeal is filed seeking enhancement of the quantum of compensation awarded thereunder. ## 2. Heard. 3. In the appeal, challenge is made only with respect to the monthly income of the deceased, fixed notionally by the Tribunal. The contention of the appellants is that the Tribunal had ignored the averments regarding the occupation and income made in the claim **M.A.C.A.1192/2012** 3 petition. In the claim petition, it was averred that the deceased was a mason by profession and he was earning Rs.10,000/- per month. Evidently, in a bid to establish the said contention, Ext.A8 identity card issued from the Kerala Building and Other Construction Workers Welfare Board, was produced by the appellants. At the same time, it is a fact that the same was not proved before the Tribunal. The accident had occurred in the year 2008. Evidently, the deceased was a manual worker. In such circumstances, despite the failure of the appellants to establish the monthly income, it has to be held that the monthly income fixed is on the lower side in the light of the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** The deceased was aged 53 years at the time of the accident. The accident occurred on 22.7.2008 and Purushothaman succumbed to the on injuries 30.7.2008. Taking into account those aspects as also the decision in **Ramachandrappa** 's case, we are of the view that even in the absence of cogent evidence regarding occupation and income, it will only be **M.A.C.A.1192/2012** 4 proper and reasonable to fix the monthly income of the deceased as Rs.6,500/-. Accordingly, it is fixed. The next question is whether any addition is to be made to that income reckoning future prospects. Though the occupation of the deceased was not proved and the deceased could not be said to be a salaried person or a self employed person, the factors that persuaded the Apex Court to make addition to the income fixed in the case of persons with fixed income for the purpose of calculating compensation for loss of dependency, viz., cost of living, price index etc. would have reflection even in the case of such manual workers, by passage of time. By lapse of time, taking into account the hike in the aforesaid factors, such persons would also be persuaded to demand increase in wages for their service. In such circumstances, it is only just and proper to grant an addition of 15% of the income reckoning the fact that the deceased was aged 53 years at the time of the accident. In such circumstances, the monthly income has to be taken as Rs.8,450/- for calculation purpose. There is no challenge against the multiplier as it was rightly adopted by the **M.A.C.A.1192/2012** 5 Tribunal with reference to the age of the deceased. In short, a reassessment of the compensation under the head loss of dependency is required only by substituting the monthly income. On such reassessment, the amount payable to the appellant will be Rs.7,43,600/-. The Tribunal has already granted Rs.3,96,000/- under the said head. After deducting the said amount, the appellants are entitled to get an additional sum of Rs.3,47,600/-. Though in the appeal grievance was made only against the fixation of the monthly income, on going through the impugned award, we are of the view that the appellants are legally entitled to get enhancement of compensation under two other heads. In the light of the decision of the Hon'ble Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** in the absence of evidence of higher expenses, a minimum of Rs.25,000/- shall be granted towards funeral expenses. In this case, the Tribunal has awarded only Rs.5,000/- under the said head. In the light of the decision in **Rajesh** 's case, we are inclined to grant a sum of Rs.20,000/- additionally under the head funeral expenses. Towards **M.A.C.A.1192/2012** 6 loss of consortium, only a sum of Rs.10,000/- was awarded to the first appellant who is the widow of the deceased Purushothaman. In the light of the decision in **Rajesh** 's case, the surviving spouse is entitled to get a minimum of Rs.1,00,000/- under the said head in a claim for compensation for death filed under section 166 of the Motor Vehicles Act. In such circumstances, the first appellant is entitled to get Rs.90,000/- additionally under the head loss of consortium. In the light of the enhancement made by us, the appellants are entitled to get a total additional compensation of Rs.4,57,600/-. The said amount is granted. It is made clear that out of the said amount, the first appellant alone will be entitled to get the additional compensation granted towards loss of consortium and the balance amount alone will be available for apportionment among the appellants. It shall be apportioned among them in the ratio 50:25:25. Since there is no dispute regarding the liability of the third respondent insurer to indemnify the first respondent, the insured owner of the vehicle, the third respondent is directed to deposit the said amount along with **M.A.C.A.1192/2012** 7 interest at the rate of 8% per annum from the date of the petition till realisation. Appeal is disposed of as above. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1192/2012** 8 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.1192/2012** 9