Saraswathy and others v. Divisional Manager, National Insurance Co. Ltd., Kollam Branch

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017 / 10TH KARTHIKA, 1939** **MACA.No. 2429 of 2013** **AGAINST THE AWARD IN OPMV 1498/2011 of M.A.C.T.,KOLLAM DATED 25-06-2013** ## **APPELLANTS/PETITIONERS** - **1 SARASWATHY** - **W/O. LATE GANGADHARAN, KADAKATHARAYHIL,** - **CHANGANKULANGARA MURI, OACHIRA VILLAGE, KOLLAM DISTRICT.** - **2 PRADEEP.K.G. S/O. LATE GANGADHARAN, KADAKATHARAYHIL, CHANGANKULANGARA MURI, OACHIRA VILLAGE, KOLLAM DISTRICT.** - **3 PRATHIBHA.S.** - **D/O. LATE GANGADHARAN KADAKATHARAYHIL, CHANGANKULANGARA MURI, OACHIRA VILLAGE, KOLLAM DISTRICT.** - **4 PRABHA.S.** - **D/O. LATE GANGADHARAN KADAKATHARAYHIL, CHANGANKULANGARA MURI, OACHIRA VILLAGE, KOLLAM DISTRICT.** **BY ADVS.SRI.K.SIJU** - **SMT.CHITHRA.S.BABU** ## **RESPONDENT(S)/3RD RESPONDENT:** **THE DIVISIONAL MANAGER M/S. THE NATIONAL INSURANCE CO. LTD. KOLLAM BRANCH, KOLLAM-691001.** **R1 BY ADV. SMT.DEEPA GEORGE R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **M.A.C.A.No.2429 of 2013** **------------------------------------------------------** **Dated this the 1[st] day of November, 2017** ## **JUDGMENT** ## **C.T.Ravikumar, J.** The appellants are the petitioners in O.P. (MV)No.1498/2011 on the files of Motor Accidents Claims Tribunal, Kollam. They are the legal heirs of the victim of the accident namely, one Gangadharan. He lost his life in a motor vehicle accident that occurred on 31.7.2000 at about 10.15 a.m. He was pedalling his bicycle through National Highway 47. At the place of the accident the bicycle was hit by a car bearing Registration No.KL-32/2244. On sustaining severe injuries he was taken to Parabrahma Speciality Hospital and Research Centre, Oachira. He breathed his last breath from there. It is in the said circumstances, the appellants his widow and children filed the said claim petition seeking a compensation of Rs.5 lakh. 2. As per the impugned order, the Tribunal granted an amount of Rs.1,22,000/- with interest at the rate of 9% per annum from the date of petition till realisation. The appellants M.A.C.A.No.2429 of 2013 2 seek for enhancement of the quantum of compensation. 3. Heard. 4. In the claim petition it was averred that Gangadharan, the deceased was aged 65 years at the time of the accident. The grievance of the petitioners is that relying on Ext.A6 postmortem certificate the Tribunal took the age of the deceased as 73 years and identified the multiplier accordingly. According to the appellants instead of applying the multiplier 5, the Tribunal ought to have applied 7 as the multiplier. We will firstly deal with the said contention. Even going by the case of the appellants in the claim petition, they claimed the aged of the deceased as 65 years. They did not adduce any evidence to prove the correct date of birth of the deceased. In such circumstances, it can only only be taken that the person must have crossed the age of 65 years and therefore, the multiplier applicable to the age group of persons above the age of 65 years alone could be applied. Going by the Schedule given in the decision in _**Sarala Varma vs. Delhi Transport Corporation [2010(2) KLT 802 (SC)]**_ the multiplier applicable to the said age group is 5. In such circumstances, M.A.C.A.No.2429 of 2013 3 even if the age is taken as 73, it would not make any difference as for persons above the age of 65, the multiplier applicable is 5. 5. In other words, the appellants cannot have any legal grievance on the aforesaid especially where they had failed to prove his exact age and thereby establish that he had not crossed 65 years at the time of the accidental death. The other grievance of the appellants is that though the deceased was earning Rs.6000/- per month the Tribunal had fixed the monthly income notionally only as Rs.2000/-, for calculating compensation for loss of dependancy. The learned Counsel submitted that in the claim petition it was also averred that the deceased was a business man. At the same time, it has to be taken note of the fact that the pleadings cannot take the place of proof. There is no oral evidence or documentary evidence on the aforesaid aspects. In such circumstances, we cannot find fault with the Tribunal in fixing the monthly income notionally for the aforesaid purpose. At the same time, the question is whether the fixation of monthly income notionally as Rs.2000/invites interference. The fact that the deceased Gangadharan M.A.C.A.No.2429 of 2013 4 met with an accident while he was pedalling bicycle even at the said age would reveal that he was healthy. In the said circumstances, it cannot be said that he was lacking earning capacity. In other words, he should be considered as a person having earning capacity. In such circumstances, taking into account the year of the accident and the aforesaid aspect, we are of the considered view that it is only reasonable to fix the monthly income for calculation purpose as Rs.3500/-. It is fixed accordingly. 6. While considering the contention of the learned Counsel that the compensation granted for loss of dependancy is on the lower side, we will have to take into consideration certain other aspects. The appellant/claimants are the widow and children of deceased Gangadharan. The children who are appellants 2 to 4 were aged 47 years, 45 years and 38 years respectively at the time of the accidental death of Gangadharan. In the light of the decision in _**Sarala Varma's**_ case supra for making deduction towards personal and living expenses of the deceased while calculating compensation for loss of dependancy what is to be taken into account is the M.A.C.A.No.2429 of 2013 5 number of surviving dependenat family members. True that the appellants 2 to 4 are the children of the deceased and therefore, they are his family members . But the question is whether that they could be considered as surviving dependant family members at that age. In the said context, it is pertinent to refer to paragraphs 30 to 32 of the decision in _**Sarala Varma's Case**_ supra. 7. Going by the said decision, if the deceased was a bachelor deduction towards personal and living expenses has to be 50%. If the deceased was married, going by the said decision, deduction towards personal and living expenses of the deceased should be 1/3[rd] where the number of dependant family members is 2 to 3, 1/4[th] where the number of depedant family members is 4 to 6 and 1/5[th] where the number of dependants family members exceeds 6. In paragraph 32 the Apex Court held thus: “32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large M.A.C.A.No.2429 of 2013 6 and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 8. A conjoined reading of the paragraphs 30 to 33 of the said judgment would reveal that deduction in such circumstances has to be 50%. In _s_ tead of making deduction on the aforesaid count as 50% of the income of the deceased the Tribunal had effected only 1/4[th] of his income. It requires to be corrected. Taking into account the aforesaid facts and position of law, the compensation payable for loss of dependancy has to be reassessed. On such reassessment, the amount payable thereunder would be Rs.1,05,000/- (3500x12x5/2). The Tribunal has granted an amount of Rs. 90,000/- towards dependancy compensation. Hence, the additional compensation payable, under the said head will be Rs.15,000/- _._ 9. The learned counsel for the appellants relied on the decision of the Honourable Apex Court in _**Rajesh vs. Rajbir Singh reported in (2013 (3) KLT 89 (SC))**_ to contend that M.A.C.A.No.2429 of 2013 7 the amounts granted towards funeral expenses and loss of consortium are on the lower side. It is submitted that in the light of the said decision in the absence of evidence of higher expenses, a minimum of Rs.25,000/- shall be the amount payable towards funeral expenses. Further it is submitted that in the light of the said decision, in the case of a surviving spouse claiming compensation for accidental death of his or her spouse, in an application under Section 166 of the Motor Vehicles Act, a minimum amount of Rs.1 lakh shall be granted towards loss of consortium. The further grievance of the petitioner is that as against the claim of Rs.30,000/- the Tribunal has only granted an amount of Rs.5000/- towards loss of estate and therefore it requires an upward modification. 10. We are afraid the said contentions cannot now be countenanced in the light of the decision of the Constitution Bench of the Honourable Apex Court in National Insurance Company Limited vs. Pranay Sethi and others (special leave petition (Civil No.25590/2013 and connected cases dated 31.10.2017). In the said decision the Honourable Apex Court held that the decision in Rajesh case is no more a binding M.A.C.A.No.2429 of 2013 8 precedent. After holding thus, the Apex Court fixed reasonable figures on the said heads namely loss of estate, loss of consortium and funeral expenses as Rs.15000/-, Rs.,40000/and 15000 respectively. In such circumstances the appellants are entitled only to an additional compensation of Rs.10,000/only towards funeral expenses,an amount of Rs.10,000/- only under the head compensation for loss of estate. There can be little doubt with respect to the position that the first appellant/widow alone is entitled to the compensation for loss of consortium. In the light of the aforesaid decision, the maximum amount payable for loss of consortium is Rs.40,000/-. The Tribunal has granted an amount of Rs.10000/-. Hence the first appellant is entitled to get an amount of Rs.30,000/- additionally. Despite the pursuasive arguments of the learned counsel for the appellants, we do not find any reason to hold that they were deprived of reasonable compensation under the other heads. In the said circumstances, this appeal is allowed. A total additional compensation of Rs.65000/- is granted. The said additional compensation will carry interest at the rate of 8% per annum M.A.C.A.No.2429 of 2013 9 from the date of petition till realisation. In view of the absence of any dispute regarding the liability of the respondent to indemnify the insured owner of the offending vehicle the respondent Insurance Company is directed to deposit the additional compensation along with interest thereon, at the aforesaid rate, within a period of one month from the date of receipt of a copy of this judgment. No order as to costs. ## **C.T.RAVIKUMAR** **JUDGE** **SHIRCY.V JUDGE** smm