Sheeba and others v. Reji T. H., Rafeeq and Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 13TH JANUARY 2012 / 23RD POUSHA 1933 MACA.No. 1044 of 2009(C) ----------------------O.P(MV) NO.73/07 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ## APPELLANTS : PETITIONERS ------------------------ 1. SHEEBA, AGED 32 YEARS, W/O.LATE JOSEPH, GOPURATHINKAL HOUSE, WEST KADUNGALLOOR, ALANGAD. 2. SANDRA JOSEPH, AGED 8 YEARS, (D.O.B 31.7.2000) D/O.LATE JOSEPH, - DO - - DO - 3. SANIYA JOSEPH, AGED 4 YEARS, (D.O.B 06.11.2004) D/O.LATE JOSEPH, - DO - - DO - 4. THRESIA, AGED 70 YEARS, M/O. LATE JOSEPH, - DO - - DO - BY ADV. SRI.V.K.VEERAVUNNY ## RESPONDENTS : RESPONDENTS --------------- - 1.REJI. T.H., S/O.HAMZA, THACHAVALLATH HOUSE, THAIKKATTUKARA, ALUVA. 2. RAFEEQ, S/O.HAMZA, KARIPPAI HOUSE, NEAR LIBRARY, NEAR PIPELINE ROAD, THAIKKATTUKARA, ALUVA. 3. M/S.ORIENTAL INSURANCE COMPANY LIMITED, POST BOX NO.8, JYOTHI SUPER BAZAR, THODUPUZHA. ADV. MATHEWS JACOB FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ. ************************* ## **M.A.C.A No.1044 of 2009 ******************************* Dated this the 13[th] day of January, 2012 ## **JUDGMENT** ## BASANT, J. This appeal arises from the same impugned award against which M.A.C.A No.2507 of 2010 is also directed. The claimants are the appellants in M.A.C.A. No.1044/09; whereas the owner is the appellant in M.A.C.A. No.2507/10. In M.A.C.A No.2507 of 2010, the challenge is against the direction under the proviso to Section 149(4) of the Motor Vehicles Act that the insurer can recover the amount from the insured after paying the same to the claimant. By separate order of reference we have referred that question for decision of a Full Bench under Section 4 of the Kerala High Court Act. The validity of that direction shall be considered in M.A.C.A No.2507 of 2010. In this appeal we shall deal with the challenge against the quantum of compensation fixed by the Tribunal. 2. Coming to the facts of this case. The claimants are the wife, aged 30 years, two minor children and mother, aged 68 years, of a deceased person who was aged 34 years. He suffered injuries and succumbed to such injuries on 2 **M.A.C.A No.1044 of 2009** 26/12/06.The deceased claimed to be a taxi driver. Against a total amount of Rs.6 lakhs claimed by the claimant, the Tribunal, by the impugned award, directed payment of an amount of Rs.3,84,000/- as per the details given in para.10 of the impugned award which we extract below: |**_Sl.No._**|**_Head of claim_**|**_Amount awarded_**| |---|---|---| |1|Loss of dependency|Rs.3,40,680.00 (2500X12/x2/3X17)| |2|Transportation expenses|Rs. 2,500.00| |3|Damage to clothings|Rs. 250.00| |4|Pain and suffering|Rs. 5,000.00| |5|Loss of love and affection|Rs. 15,000.00| |6|Loss of consortium|Rs. 15,000.00| |7|Loss of estate|Rs. 2,500.00| |8|Funeral expenses|Rs. 3,000.00| ||Total|Rs.3,83,930.00 (rounded off to<br>Rs.3,84,000/-| 3. We have heard the learned counsel for the claimants, the owner and the insurance company. The learned counsel for the claimants assails the quantum of compensation awarded. 4. Called upon to explain and be specific, the learned counsel for the appellants contends that the quantum of compensation awarded under the head of funeral expenses (Rs.3,000/-), loss of estate (Rs.2,500/-), loss of consortium (Rs.15,000/-), pain and suffering (Rs.5,000/-) are all grossly ## **M.A.C.A No.1044 of 2009** 3 inadequate and perversely low. The Tribunal has not realistically assessed the compensation payable under these heads. We find merit in the contention of the learned counsel for the claimants. We take note that the accident had taken place as late on 26.12.2006. We are satisfied that the amounts under the above heads require interference and enhancement. 5. The learned counsel for the claimants has trained all his guns against the quantum of compensation awarded under the head of loss of dependency. An amount of Rs.3,40,680 (2500X12X2/3X17) is awarded as compensation. The learned counsel for the appellants submits that there are unassailable indications to show that the deceased was a driver holding licence to drive a light motor vehicle, including a transport vehicle. At the relevant time his licences were valid, it is pointed out. The Tribunal erred grossly in reckoning only Rs.2,500/- as the monthly income, contends the learned counsel for the appellants. 6. The learned counsel for the appellants points out that as early as in 1994, under clause 6 of the Second Schedule to the Motor Vehicles Act, the Tribunals are enabled to draw a presumption of prudence that even a non earning person must 4 **M.A.C.A No.1044 of 2009** be capable of earning an amount of Rs.1,250/- per mensem. On the date of the accident in this case, a period of 12 years had elapsed from the date on which the drawal of such presumption was permitted. Though legislature and the Central Government have grossly failed in updating the schedule to accommodate the changing scenario in the present date, Courts and Tribunals cannot throw their hands up in helplessness and be oblivious to the realities of life, contends the learned counsel. The learned counsel further points out that the precedents in **Lata Wadhwa** **V. State of Bihar** [AIR 2001 SC 3218] and **Laxmi Devi & Ors.** **V. Mohammad Tabbar & Anr.** [2008 ACJ 1488] clearly reveal that the courts are enabled to draw the presumption of prudence even in respect of non earning home makers and unskilled manual labourers that their income can be reckoned at Rs.3,000/- per mensem. Conscious of all these realities, taking note of the indisputable fact that the nuclear family of the deceased consisting of himself, his wife aged 30 years and his minor children, - aged 6 and 2 years, must have been keeping their body and soul together with the income of the deceased, we are satisfied that a higher monthly income can safely be 5 **M.A.C.A No.1044 of 2009** assumed. We are conscious of the premise that the burden is on the claimant to adduce all necessary evidence. But even where a claimant, fails in adducing authentic data about the employment and income, Courts and Tribunals, primary mandate to whom is to ensure that just compensation is paid to the victim, cannot throw their hands up in helplessness. We are certainly of the opinion that it would be absolutely safe in the circumstances to assume that a qualified taxi driver in December, 2006, must have been earning an income above Rs.2,500/- per mensem. Taking cue from the decision **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], we must note that adequate provisions must be made for increase in the salary/earnings in future also. It is taking into account all the circumstances that we accept that at least Rs.3,000/- can be taken as the multiplicand while ascertaining the quantum of compensation for loss of dependency. 7. The learned counsel for the insurance company alertly points out that going by the dictum in **Sarla Verma (** supra), 16 and not 17 can be accepted as the multiplier. We accept that contention of the learned counsel for the insurance company. 8. There is a contention that going by the dictum in 6 **M.A.C.A No.1044 of 2009** **Sarla Verma** (supra), only ¼ and not 1/3 can be deducted as personal expenses of the deceased. We have no indications to suggest that the 4[th] claimant, the aged mother of the deceased, was totally dependent on the deceased and, in these circumstances, we do not propose to interfere with the course adopted by the Tribunal of deducting 1/3 towards the personal expenses of the deceased. 9. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs.1,21,820/as compensation as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. |i)|Funeral expenses|:|Rs.2,000.00| |---|---|---|---| ||(5,000 minus 3,000)||| |ii)|Loss of estate|:|Rs. 2,500.00| ||(5,000 minus 2,500)||| |iii)|Loss of consortium|:|Rs. 5,000.00| ||(20,000 minus 15,000)||| |iv)|Pain and suffering|:|Rs. 5,000.00| ||(10,000 minus 5,000)||| |v)|Loss of dependency|:|Rs.1,07,320.00| ||(3,500X12X2/3X16 =||| ||4,48,000 minus 3,40,680)||| ||||----------------------| ||Total|:|Rs.1,21,820.00| ||||=========| 7 ## **M.A.C.A No.1044 of 2009** 10. The learned counsel for the appellants submits that no amount has been awarded towards the cost. We are satisfied that proportionate cost for the proceedings before the Tribunal on the entire amount of compensation is liable to be awarded as held in **Jeena V. Satheesh Babu.K** [2011(3) KLT 943]. Challenge by the claimants can succeed only to the above extent. 11. In the result: - a) This appeal is allowed in part; b) The appellants are found entitled to a further amount of Rs.1,21,820/- (Rupees One lakh twenty one thousand eight hundred and twenty only) in addition to the amount awarded by the Tribunal; c) We make it clear that the appellants shall be entitled to proportionate cost on the entire amount of compensation awarded in accordance with the dictum in **Jeena** (supra); - (d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(V.CHITAMBARESH, JUDGE)** rtr/ 8 ## **M.A.C.A No.1044 of 2009** The figure “Rs.3,000/-” occurring in the last sentence in paragraph 6 of the judgment dated 13.01.2012 in M.A.C.A 1044/2009 is corrected and substituted as “Rs.3,500/-” as per order dated 24/02/2012 in I.A 412/2012 in M.A.C.A 1044/2009. Sd/Registrar (Judicial)