Sheeja Anto & Ors v. Chakrapani & Ors

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 MACA.No. 1638 of 2011() ----------------------OPMV.854/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANTS : PETITIONERS -------------- 1. SHEEJA ANTO, AGED 35 YEARS W/O.LATE ANTO, CHIRAYATH HOSUE, P.O.ARIMBOOR KAIPPULLY DESOM,, GREEN LINE ROAD THRISSUR W/O. OF THE DECEASED. 2. ALEENA C.A, MINOR ,AGED 13 YEARS D.O.B 15-2-1998 D/O.LATE ANTO DO.. 3. ALBIN C.A, MINOR AGED 9 YEARS D.O.B 18.10.2002 4. JOSE AGED 65 YEARS DO..DO.. BY ADV. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN RESPONDENTS : RESPONDENTS --------------- 1. CHAKRAPANI, AGED 51 YEARS S/O.NARAYANNAN, KODAPPULLY HOUSE ELTHURUTHU PO, KARIIYATTUKARA, THRISSUR 680 611. DRIVER OF KL 8 AE 7509 AUTO RICKSHAW. 2. SUNIL T.C, S/O.CHAKRAPANI, THANDAN HOUSE ELTAHURUTHUY PO, THRISSUR 680 611 DRIVER OF KL 8 AE 7509 AUTO RICKSHAW. 3. THE NATIONAL INSURANCE CO LTD BRANCH OFFICE,AMBIKA ARCADE M.G.ROAD, THRISSUR PIN 680 600 POLICY NO.570704/08/6300000955, VALID FROM 21.5.2008 TO 20.05.2009. ADV. SRI. M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & K.SURENDRA MOHAN, JJ. *********************** M.A.C.A No.1638 of 2011** ## ********************************* Dated this the 3[rd] day of November, 2011 ## **JUDGMENT** ## BASANT, J. Claimants are the appellants. They are the wife, aged 32 years, two minor children, aged 10 and 6 years and parents, aged 59 and 65 years. The fourth claimant, mother, expired during the pendency of the proceedings. The claimants claimed compensation for the loss suffered by them as a result of the death of Anto, who suffered injuries in a motor accident which took place on 19-6-2008. He succumbed to those injuries. He was claimed to be a businessman earning a monthly income of Rs.15,000/- out of the business of gold dye works, which he was running under a licence issued to him by the Thrissur municipality. He succumbed to his injuries on the date of the accident itself. Against a total claim limited to Rs.8 lakhs, the Tribunal awarded only an amount of Rs.3,99,150/- as per the details given in paragraph 10 of the impugned award, which we extract below:- 2 M.A.C.A No.1638 of 2011 |**Sl.**<br>**No:**|**Head of claim**|**Amount awarded**| |---|---|---| |1|Medical and miscellaneous expenses|Rs. 7,150.00 (medical bills for<br>Rs.7143.35 produced)| |2|Transportation expenses|Rs. 2,000.00| |3|Loss of dependency|Rs.3,60,000.00 (3000x12x15x2/3)| |4|Loss of consortium|Rs. 10,000.00| |5|Loss of love and affection|Rs. 10,000.00| |6|Loss of estate|Rs. 5,000.00| |7|Funeral expenses|Rs. 5,000.00| ||Total|Rs.3,99,150/-| 2. We have heard the learned counsel for the appellants/claimants and the learned counsel for the insurance company, which has been made entirely liable under the impugned award to satisfy the same. The challenge is raised on the short ground that the quantum of compensation awarded is not sufficient. Called upon to explain and be specific, the learned counsel for the appellants first of all contends that the Tribunal has erred in not awarding any amount of compensation under the head of pain and suffering. The death was instantaneous, ie. immediately after the accident. But we are satisfied that an appropriate amount of compensation ought to be awarded under the head of pain and suffering. We direct that an amount of Rs.10,000/- be paid as compensation under the head of pain and suffering. 3 M.A.C.A No.1638 of 2011 3. Under the head loss of consortium, the Tribunal has awarded only an amount of Rs.10,000/- as compensation. The learned counsel contends and we agree that the amount awarded is not adequate. We are satisfied that an amount of Rs.20,000/deserves to be awarded under this head. 4. Similarly under the head of loss of love and affection, only an amount of Rs.10,000/- has been awarded as compensation. We are satisfied that an amount of Rs.20,000/deserves to be awarded as compensation under that head. 5. The challenge mainly is directed against the monthly income reckoned by the Tribunal while ascertaining the quantum of compensation under the head of loss of dependency. Deceased was aged 38 years and going by the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], for persons aged 35-40 years, 15 is the multiplier to be adopted. The learned counsel for the appellants contends that 1/3 of the earnings has been deducted as personal expenses of the deceased. The deceased, the evidence clearly shows, had a family of 6 members including himself (wife, aged 32 years, 2 minor children and parents aged 59 and 65 years) depending on him at the time of his death. Going by the dictum in **Sarla** 4 M.A.C.A No.1638 of 2011 **Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], it is pointed out that ¼ alone should have been deducted towards the personal expenses of the deceased. We accept this contention. We are satisfied that only ¼ need be deducted towards the personal expenses of the deceased even assuming that the old parents were not totally and wholly dependent on the deceased. 6. The main challenge is raised against the quantum of monthly income reckoned by the Tribunal. The Tribunal accepted only Rs.3,000/- as the monthly income. The learned counsel for the appellants submits that this is totally unrealistic and the Tribunal has not really taken into account the overwhelming materials available. A person like the deceased cannot be expected to have authentic documentary evidence to prove his income. But it is pointed out that the licence issued by the Trichur municipality shows that the deceased was running a business of gold dye works. He was the licencee as can be seen from Ext.A8. Reliance is placed on documents produced as Ext.A9 to contend that the deceased was subscribing to various kuries including a monthly deposit kuri of Rs.2,000/- with M/s.Kizhakkupattukara Kisan Welfare Co-op. Society. Relevant 5 M.A.C.A No.1638 of 2011 documents were produced to indicate that the deceased was contributing an amount of Rs.2,000/- (including commission) in that account. Even in the absence of better materials, we are of the opinion that the Tribunals cannot throw their hands up in helplessness. They have to strain to ascertain from the available details the probable income of the deceased. 7. In this context we note that under clause 6 of the Second Schedule to the Motor Vehicles Act from 1994 a presumption of prudence is permitted that even a non earning person can be assumed to earn an income of Rs.1,250/- per mensem. The learned counsel for the appellants also points out the decision in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] and **Laxmi Devi & Ors. V. Mohammad Tabbar & Anr.** [2008 ACJ 1488], to contend that even a non earning home maker as also an unskilled manual labourer can be assumed to earn an income of Rs.3,000/- per mensem. In the instant case, a prudent person has to take note of the circumstance that 6 souls were depending on the income earning activity of the deceased to keep their body and soul together. Indications available to sail to conclusions about the probable income earning activity and the actual income of the deceased must also be taken note 6 M.A.C.A No.1638 of 2011 of. Taking all the relevant circumstances into account, we are satisfied, it can safely be concluded that the deceased must have been earning an income of not less than Rs.4,500/- per mensem. In coming to this conclusion we take note of the further circumstance that the deceased was aged only 38 years and due provision for future increase in income must also be realistically made. It is, in these circumstances, that we accept that Rs.4,500/- can be reckoned as the monthly income. The compensation for loss of dependency will hence have to be reworked with the above details. 8. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs.2,77,500/as compensation as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. i) Pain and suffering : Rs.10,000.00 (no amount awarded by the Tribunal) ii) Loss of consortium : Rs.10,000.00 (20,000 minus 10,000) iii) Loss of love and affection : Rs.10,000.00 (20,000 minus 10,000) 7 M.A.C.A No.1638 of 2011 iv) Loss of dependency : Rs.2,47,500.00 (4500X12X3/4X15 = Rs.6,07,500 minus Rs.3,60,000) ......................... Total :Rs.2,77,500.00 ========== 9. The learned counsel for the appellants submits that proportionate cost on the entire amount of compensation as held in **Jeena V. Satheesh Babu.K** [2011(3) KLT 943] is liable to be awarded. We agree with the learned counsel for the appellants. 10. In the result: a) This M.A.C.A is allowed in part; b) The appellants are found entitled to a further amount of Rs.2,77,500/- (Rupees Two lakhs seventy seven thousand and five hundred only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) The appellants shall be entitled for the proportionate cost for the proceedings before the Tribunal on the entire amount of compensation as held in **Jeena** (supra); M.A.C.A No.1638 of 2011 8 e) All other directions of the Tribunal are upheld. **(K.SURENDRA MOHAN, JUDGE)** rtr/