Saubhagyavathy, Geetha and Girish v. Mohan, Santhosh and The New India Assurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF JULY 2017 / 22ND ASHADHA, 1939** **MACA.No. 1437 of 2012** **AGAINST THE AWARD IN OPMV 1453/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR.** ## **APPELLANT(S)/APPELLANTS/PETITIONERS** **1 SAUBHAGYAVATHY, W/O LATE CHANDRAN, KARAYIL HOUSE, CHAZHU P.O., THRISSUR DISTRICT.** **2 GEETHA, D/O LATE CHANDRAN, KARAYIL HOUSE, CHAZHU P.O., THRISSUR DISTRICT.** **3 GIRISH, S/O LATE CHANDRAN, KARAYIL HOUSE, CHAZHU P.O., THRISSUR DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON** **SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS** ## **RESPONDENT(S)/RESPONDENTS/RESPONDENTS:** **1. MOHAN, S/O KUMARAN, RESIDING AT KUNNATHULLY HOUSE, MANALUR** **P.O., THRISSUR-680617.** **2. SANTHOSH, S/O SEKHARAN, RESIDING AT CHEMBALUPURATH HOUSE, MULAYAM ROAD, THRISSUR-680751.** **3. THE NEW INDIA ASSURANCE COMPANY LIMITED,** **PERINCHERY BUILDING, ROUND NORTH, THRISSUR-680 001.** **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **jm/** ## **C.T.RAVI KUMAR &** ## **ANIL K.NARENDRAN, JJ.** ======================== ## **M.A.C.A.No.1437 of 2012** ======================== Dated this the 13[th] day of July 2017 ## **JUDGMENT** ## C.T.Ravikumar, J. The legal heirs of the victim of a motor vehicle accident involved in O.P.(M.V.)No.1453/2006 on the files of the Motor Accidents Claims Tribunal, Thrissur filed this appeal seeking enhancement of compensation granted as per the award passed thereon. They are the widow and children of the deceased Chandran. On 16.02.2006 at around 03.30 P.M., while the deceased Chandran was riding a bicycle through ChazhoorAlappad Public Road, he was knocked down by a motorcycle bearing registration No.KL-8/AE-4272, driven by the second respondent. On sustaining grievous injuries, he was taken to Elite Mission Hospital and while undergoing treatment, he succumbed to the injuries. It is in the said circumstances that claiming a total compensation of Rs.3,50,000/- an application was filed under M.A.C.A.No.1437 of 2012 **2** Section 166 of the Motor Vehicle Act, 1988. The Tribunal as per impugned award granted a total compensation of Rs.2,52,257/with interest at the rate of 8% per annum from the date of the petition till realisation. 2. We have heard the learned Counsel for the appellants and the learned Counsel for the third respondent. 3. There is no dispute regarding accident, cause of accident as also liability of the third respondent to indemnify the insured owner of the offending vehicle. Therefore, the only question that calls for consideration is regarding the entitlement of the appellants to get enhanced compensation. The learned Counsel appearing for the appellants contended that the Tribunal had fixed the monthly income meagerly at Rs.3,000/- and it is the said erroneous estimation of the monthly income that deprived just compensation to the appellants. That apart, it is contended that the Tribunal had also gone wrong in assessing compensation under different heads such as, loss of love and affection, loss of consortium, funeral expenses etc. It is submitted that no amount M.A.C.A.No.1437 of 2012 **3** was granted towards damage to clothing. 4. In this case, the first appellant is the widow of the deceased Chandran. The accident had occurred in the year 2006 and at the time of the accidental death of her husband she was aged 60 years. The Tribunal had granted only an amount of Rs.13,000/- towards loss of consortium to the first appellant. Though the dictum laid down by the Apex Court in _**Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)**_ , is not squarely applicable in this case, we are of the view that it is only just and reasonable to grant an amount of Rs.62,000/-, in addition to the compensation granted by the Tribunal under that head. Towards loss of love and affection, the Tribunal had granted only an amount of Rs.15,000/-. In the impugned judgment it is stated that the said quantification was made taking into account the number of applicants viz.'3'. Thus, obviously, an amount of Rs.5,000/- was granted to the first appellant under the said head in addition to compensation for loss of consortium. Since she being the wife of the deceased and was granted compensation under the head loss M.A.C.A.No.1437 of 2012 **4** of consortium, the first appellant was not entitled to get compensation under the head loss of love and affection as love and affection are also ingredients of consortium. However we are not inclined to reduce the quantum of compensation granted thereunder. Towards, funeral expenses only an amount of Rs.5,000/- was granted. We are inclined to grant an amount of Rs.15,000/- additionally under that head. Towards damage to clothing, no amount was granted by the Tribunal. The nature of injuries would undoubtedly suggest that the dresses worn by him at the time of accident must have been spoiled. Hence, we are inclined to grant an amount of Rs.1,000/- towards damage to clothing. The learned Counsel for the appellant contended that the Tribunal ought to have accepted the claims of the appellant regarding monthly income. According to the appellants, in the claim petition, an amount of Rs.6,000/- was claimed as the monthly income of the deceased. However, the Tribunal had fixed monthly income notionally only as Rs.3,000/-. It is true that despite taking up such averments in the claim petition, the M.A.C.A.No.1437 of 2012 **5** appellants have not cared to adduce any evidence to establish their averments regarding occupation and income of the deceased. Even then, we are persuaded to consider the question whether fixation of Rs.3,000/- in respect of a person, who met with accident in the year 2006 and succumbed to the injuries sustained, as Rs.3,000/-, invites interference. In the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]**_ , in respect of a coolie, who met with an accident in the year 2004, the Hon'ble Apex Court had fixed monthly income notionally as Rs.4,500/-. Taking into account the fact that the accident in question had occurred more than an year after the accident involved in that case and taking note of the age of the deceased herein, we are inclined to fix Rs.5,000/- as the monthly income of the deceased for calculation purpose. As noticed hereinbefore, the multiplier was correctly adopted by the Tribunal with reference to the age of the deceased. The learned Counsel for the appellant contended that the rate of deduction made by the Tribunal towards personal M.A.C.A.No.1437 of 2012 **6** and living expenses needs no interference. We are of the view that the said contention cannot be accepted. Going by the decision of the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802]**_ , in a case where the number of dependent family member is only one, 50% of the income has to be deducted toward personal and living expenses. A conjoint reading of Paragraph 30 and 32 of the said judgment would reveal the said position. In this case, the first appellant who is the widow of deceased Chandran was of aged 60 years. The second appellant who is the daughter of the deceased was then aged 37 years and the third appellant who is the son of the deceased was then aged 35 years. Taking into account the age of the children at the time of death of their father and owing to lack of evidence of dependency, we are not persuaded to accept the contention of the learned Counsel that they should also be treated as the dependents of the deceased. In such circumstances, the first appellant - the widow of the deceased alone could be treated as the dependent of the victim of the accident in question. If that be so, 50% of the income M.A.C.A.No.1437 of 2012 **7** of the deceased was to be deducted from the income of the deceased towards his personal and living expenses. Taking into account such factors mentioned above, the amount payable towards compensation for loss of dependency will be Rs.2,10,000/-. The amount already granted by the Tribunal under that head, viz. Rs.1,68,000/- is to be deducted from it. Thus, the appellants are entitled to get only an amount of Rs.42,000/additionally under that head. In the light of the assessment and the reassessment made hereinbefore, the amount payable as compensation in this case would become Rs.135,000/(Rs.15,000/- +Rs.1,000/-+42,000+62,000/-). It is awarded. It is made clear that out of the said amount, the first appellant alone would be entitled to get the additional compensation granted under the head 'loss of consortium' and appellants 2 and 3 alone are entitled to get the compensation granted under the head loss of love and affection. The balance amount alone will be available for apportionment and it shall be apportioned among the appellants in the same ratio as has been fixed by the Tribunal, as M.A.C.A.No.1437 of 2012 **8** per the impugned award. The third respondent is directed to deposit the additional compensation along with interest at the rate of 8% along with interest from the date of claim petition till the date of realisation within a period of two months from the date of receipt of a copy of this judgment. No order to costs. ## **C.T.RAVIKUMAR JUDGE** **ANIL K.NARENDRAN JUDGE** jm/