Seline, Smitha, Smiji, Lueyamma @ Smini, and Thomas John v. Faizal Ismail and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935** **MACA.No. 2213 of 2009** **-------------------------AGAINST THE AWARD IN OP(MV)NO. 1376/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA DATED 12-08-2008** **...** ## **APPELLANT(S)/PETITIONERS 1 TO 5 IN OPMV:** **----------------------------------------------------------------------** **1. SELINE, W/O.JOHN, POOMKAVIL VEEDU, AVALUKKUNNU PO.,** **2. SMITHA, S/O.MOSSES, ARAICKAL, WARD NO.13, ARYAD PANCHAYAT, THUMPOLY PO.** ## **3. SMIJI, D/O.JOHN,** ## **POOMKAVIL VEEDU, AVALUKKUNNU WARD, AVALUKKUNU PO.** **4. LUEYAMMA @ SMINI, POOMKAVIL VEEDU, AVALUKKUNNU WARD, AVALUKKUNNU PO.** **5. THOMAS JOHN, S/O.JOHN, POOMKAVIL VEEDU, AVALUKKUNNU WARD, AVALUKKUNNU PO.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT(S)/RESPONDENTS IN OP(MV):** **--------------------------------------------------------------------** **1. FAIZAL ISMAIL, S/O.MUHAMMED ISMAIL, FAUZIYA MANZIL, LAJANATH WARD, ALAPPUZHA.** **2. THE NEW INDIA ASSURANCE CO.LTD, ALAPPUZHA.** **R1 BY ADV. SRI.T.MADHU R2 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A.No.2213 of 2009 --------------------------------------------------------------Dated this, the 5[th] day of November 2013 ## Judgment ## Ramakrishnan, J. The claimants in O.P.(M.V).No.1376/04 on the file of the Motor Accidents Claims Tribunal, Alappuzha, are the appellants herein. The appellants, along with the mother of the deceased, John, filed the claim petition, claiming compensation for the death of their breadwinner, who died in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle by the rider of the motor cycle, owned by the first respondent and insured with the second respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by its rider and awarded a total compensation of Rs.2,20,000/- on various heads as follows : MACA 2213/09 2 |**_Head_**|**_Amount ₹_**| |---|---| |**_Pecuniary loss_**|**_176,000.00_**| |**_Loss of love and affection_**|**_10,000.00_**| |**_Loss of consortium_**|**_10,000.00_**| |**_Pain and sufferings_**|**_15,000.00_**| |**_Medical & other incidental expenses_**|**_3,000.00_**| |**_Ambulance charges_**|**_3,000.00_**| |**_Funeral expenses_**|**_3,000.00_**| |**_Total_**|**220,000.00**| The Tribunal also found that the rider of the motor cycle was not having valid driving licence and made the insurance company liable to pay the amount and right of recovery was given to the insurer to recover the amount from the first respondent-insured. During the pendency of the proceedings before the Tribunal, the mother of the deceased died. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have preferred this appeal, claiming enhanced compensation. 2. Since the matter is of the year 2004 and the insurance is admitted and the first respondent did not file any appeal against the finding, ordering recovery from him, we have decided to dispose of the appeal at the admission stage itself, after hearing the learned counsel for the first respondent and the insurance company. MACA 2213/09 3 3. We have heard the learned counsel for the appellants and the learned counsel for the insurance company and the first respondent. 4. The learned counsel for the appellants submitted that the deceased was aged 54 years and was conducting furniture business and getting Rs.4,000/- per month. But, the Tribunal has arbitrarily fixed his monthly income as Rs.2,000/-, which is very low, considering the fact that the accident occurred in the year 2004. Further, even if the second appellant is excluded, there were five dependants at the time of death of the deceased and the lower court was not justified in deducting 1/3[rd] for his personal expenses, in view of the decision of the Supreme Court in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), wherein it has been held that if the number of dependants is between 4 to 6, the deduction for personal expenses of the deceased must be 1/4[th] and not 1/3[rd] . Further, the deceased died after 8 days of the accident and so, the amount awarded under the head pain and sufferings is also on the lower side. The first appellant was aged 50 years at the time of death of her husband and the 5[th] appellant was MACA 2213/09 4 aged only 20 years at the time of death of his father. So, the amounts awarded by the Tribunal under the heads, 'loss of consortium' and 'loss of love and affection' are also on the lower side. No amount has been awarded under the head 'loss of estate' as normally, a conventional amount will be awarded under that head. The amounts awarded under the heads 'medical expenses incidental expenses, transport expenses and funeral expenses' are also on the lower side. According to the learned counsel, the appellants are, therefore, entitled to get enhancement of compensation on all heads. 5. On the other hand, the learned counsel for respondents 1 and 2 submitted that in the absence of any evidence adduced on the side of the appellants to prove the income of the deceased, the Tribunal was perfectly justified in notionally fixing the monthly income as Rs.2,000/- per month. Further, all the appellants were majors and so, the Tribunal was perfectly justified in deducting 1/3[rd] for the personal expenses of the deceased. So, the total amount awarded is just and proper and no interference is called for at the hands of this Court. MACA 2213/09 5 6. We have considered the rival contentions of both parties in detail. 7. The case of the appellants was that the deceased, John was doing furniture business and getting Rs.4,000/- per month at the time of his death. But, no evidence, either oral or documentary, has been adduced on the side of the appellants to prove his income. But, considering the fact that he had to maintain a family consisting of 5 members and the accident occurred in the year 2004, we feel that the amount of Rs.2,000/-, fixed by the Tribunal as his monthly income appears to be on the lower side and we are inclined to enhance the same to Rs.2,500/- per month. 8. Except the second appellant, others were depending on the income of the deceased. There were five dependants including the mother, at the time of death of deceased John. So, the Tribunal ought to have taken 1/4[th] for the personal expenses, instead of 1/3[rd] , in view of the decision of the Supreme Court in Sarla Varma's case (supra). If a re-calculation is made on that basis, the appellants will be entitled to get an amount of MACA 2213/09 6 Rs.2,47,500/- (2500x12x11x3/4) instead of Rs.1,76,000/-, awarded by the Tribunal under the head 'loss of dependency'. There will be a difference of Rs.71,500/- and we award this amount as additional compensation under that head. 9. The first appellant was aged 50 years at the time of death of her husband and she had to look after three children besides the mother of the deceased. There is no possibility of a remarriage for her. She had lost the support and love of her husband at the age of 50. Considering these aspects, Rs.10,000/- awarded by the Tribunal, under the head loss of consortium is on the lower side, which, we enhance to Rs.25,000/-. Similarly, the amount awarded under the head 'loss of love and affection' is also on the lower side. We enhance the same to Rs.20,000/- from Rs.10,000/-. No amount has been awarded under the head loss of estate and we award a conventional amount of Rs.5,000/- under that head. We are not inclined to enhance the amounts awarded under any other heads as they appear to be just and reasonable. 10. In all, the appellants will be entitled to get an additional compensation of Rs.1,01,500/-, over and above what MACA 2213/09 7 has been awarded by the Tribunal, which, the respondents 1 and 2 are liable to pay with 9% interest from the date of claim petition till the date of payment, subject to the right of the second respondent to recover the amount from the first respondent after depositing the amount. The enhanced amount is payable to the first appellant alone as all others are majors. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA 2213/09 8 MACA 2213/09 9