Shereena and others v. National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938 MACA.No. 584 of 2010 ( ) ------------------------AGAINST THE AWARD IN O.P(MV)NO.679/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA DATED 12-10-2009 APPELLANTS/PETITIONERS: ------------------------------ 1. SHEREENA, W/O.DECEASED YOUNUS, AGED 28 YEARS, PARAPPURAM HOUSE, ONIVAYAL, POST KALPETTA, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. 2. AJNAS (MINOR), S/O.DECEASED YOUNUS, AGED 11 YEARS,, DATE OF BIRTH 11-01-1998, PARAPPURAM HOUSE, ONIVAYAL, POST KALPETTA, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. 3. AJEESHA, D/O.DECEASED YOUNUS, AGED 8 YEARS, DATE OF BIRTH 05-05-2001, PARAPPURAM HOUSE, - ONIVAYAL, POST KALPETTA, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. (PETITIONERS 2 & 3 ARE MINORS REP.BY MOTHER THE IST PETITIONER) 4. P.MARAKKAR. S/O.HYDRU, AGED 58 YEARS, PARAPPURAM HOUSE, ONIVAYAL, POST KALPETTA, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. (FATHER OF DECEASED YOUNUS) 5. ASYA P.P., W/O.MARAKKAR, AGED 48 YEARS, - PARAPURAM HOUSE, ONIVAYAL, POST KALPETTA, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. (MOTHER OF DECEASED YOUNUS) BY ADV. SMT.CELINE JOSEPH RESPONDENT/RESPONDENT NO.3: ------------------------------------- NATIONAL INSURANCE CO.LTD C.B.I.SQUARE BAKER HILL, KOTTAYAM, PIN-686 001. (POLICY NO.570600/21/06/6300000964) BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.584 of 2010 -------------------------------Dated 5[th] September, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred by the legal heirs of one Younus who died in a motor vehicle accident on getting aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Kalpetta as per the award in O.P.(M.V) No.679 of 2006. The accident occurred on 26.10.2006. When the deceased was walking through the side of the road, the offending vehicle which is a bus bearing Reg.No.KL-05-M-1913 driven by the first respondent knocked him down. He sustained injuries and immediately he was taken to Leo Hospital, Kalpetta from where he succumbed to the injuries. It is in the said circumstances that the aforesaid claim petition was filed seeking a compensation of 8,00,000/-. Before the Tribunal,₹ the first appellant who is the wife of the deceased got herself examined as PW1 besides getting marked Exts.A1 to A9. No evidence whatsoever, either oral or documentary was adduced by the respondents. The Tribunal, as per the impugned award, granted a total compensation of 3,91,000/- with interest at the rate of 7.5% per₹ M.A.C.A.No.584/2010 2 annum from the date of petition till realisation. As noticed hereinbefore, it is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 2. We have heard Adv.Smt.Celine Joseph, the learned counsel for the appellants and Adv.Sri.Rajan P.Kaliyath, the learned counsel appearing for the respondent. 3. It is submitted before us that there is no dispute regarding the accident and the cause of the accident as the negligence from the part of the first respondent who was driving the offending vehicle at the time of the accident. There is also no dispute regarding the insurance coverage of the offending vehicle at the time of the accident. In such circumstances, the only question to be considered in this appeal is whether the appellants are entitled to get enhanced compensation. 4. The learned counsel for the appellants submitted that though it was specifically stated in the claim petition that the deceased Younus was a fishmonger and was earning an amount of 5000/- per₹ month the Tribunal ignored the said contentions and notionally fixed the monthly income at 2,500/-. It is the erroneous fixation of the₹ M.A.C.A.No.584/2010 3 monthly income that virtually deprived the appellants the just compensation, it is contended. That apart, it is contended that the Tribunal also granted only meagre compensation under the heads `loss of love and affection', `loss of consortium', `funeral expenses', `transportation expenses' and `damage to clothing'. It is also submitted that no amount whatsoever was granted towards `loss of estate'. The learned counsel appearing for the respondent submitted that the Tribunal cannot be found fault with in fixing the monthly income of the deceased notionally as the appellants have failed to adduce any evidence regarding the occupation and income of the deceased. It is the further submission that a bare perusal of the impugned judgment and award would reveal that the Tribunal has granted adequate compensation under all heads . In such circumstances, it is submitted that no appellate interference is called for. 5. We will firstly consider the questions whether the Tribunal is justified in fixing the monthly income of the deceased notionally and whether the notional fixation of the monthly income as 2,500/- invites₹ interference ? In that context, it is relevant to note that the deceased Younus was aged only 29 years at the time of the accident. The accident occurred on 26.10.2006. At the same time, the evidence on M.A.C.A.No.584/2010 4 record would reveal that the appellants have failed to adduce any evidence to establish the occupation and income of the deceased Younus. In such circumstances, the Tribunal cannot be found fault with in fixing the monthly income of the deceased notionally. But, taking note of the aforementioned factors viz., the age of the deceased and the year of the accident and also taking note of the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC**_ _**236)**_ wherein the Hon'ble Apex Court fixed the monthly income of a coolie, who met with an accident in the year 2004, at 4,500/-₹ notionally for calculation purpose, we are of the view that the fixation of monthly income notionally at 2,500/- invites interference. In the₹ circumstances and factors mentioned above, we are of the view that the monthly income fixed by the Tribunal is too low and we are inclined to re-fix the monthly income of the deceased as 4,500/-. Taking into₹ account the fact that he was aged only 29 years, we are of the considered view that the Tribunal ought to have made some addition reckoning the future prospects. Even if it is taken that deceased Younus was only a coolie it cannot be taken that he would not have had any increase in wages in future had he not met with the accident in question and lost his life. We are of the view that despite the fact that he was not a salaried person or a person without fixed wages or a self M.A.C.A.No.584/2010 5 employed person the price index and cost of living would have had reflection on his wages. In the case of persons eking their livelihood by engaging themselves in coolie activities, it is to be noted that there would not be any age of retirement by superannuation and such persons could continue to do work or engage themselves in work as long as they are healthy. Taking into account such circumstances, we are inclined to grant 30% addition to the income fixed. Thus, the monthly income of the deceased for calculation purpose has to be taken as 5,850/-. But, at the same time, deduction has to be effected₹ taking note of the personal expenses which would have incurred had he been alive. Going by the decision of the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ when there are five dependents, the deduction towards personal expenses has to be ¼[th] of the income. Therefore, it is evident that the Tribunal erred in effecting a deduction of 1/3[rd] of the income towards personal expenses which the deceased would have incurred had he been alive and in fact, on that count only 1/4[th] ought to have been deducted. In this case, the learned counsel appearing for the respondent submitted that the Tribunal went wrong in fixing the multiplier. In the light of the decision of the Hon'ble Apex Court in **Sarla Verma's** case (supra) taking note of the age of the deceased Younus the multiplier applicable is `17'. In this case, evidently, the M.A.C.A.No.584/2010 6 Tribunal took the multiplier as `18'. In such circumstances, with the modified multiplicand as also the multiplier the amount of compensation payable for loss of dependency has to be re-assessed. On such reassessment, the appellants are entitled to get an amount of ₹ 8,95,050/- (5850 x 12 x 17 x ¾). But, the Tribunal has already granted an amount of 3,60,000/- under that head. After deducting₹ the said amount the appellants are entitled to get 5,35,050/-₹ additionally under that head. It is granted. Towards loss of love and affection the Tribunal granted only an amount of 10,000/-. Among₹ the appellants, appellants 2 and 3 are the minor children of the deceased Younus and appellants 4 and 5 are his parents. Taking note of their relation with the deceased we are of the view that it is only appropriate to grant 1,00,000/- under that head. Since the Tribunal₹ has already granted 10,000/- under that head we are inclined to grant₹ ₹ 90,000/- additionally under that head. It is granted. While considering the adequacy of the compensation granted under the head loss of consortium and the amount granted towards funeral expenses decision of the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh (2013 (3) KLT 89(SC))** has to be looked into. In the light of the said decision, in the absence of any evidence for higher expenses an amount of 25,000/- has to be granted towards funeral expenses. But, the₹ Tribunal has granted only an amount of 5,000/-. In the case of₹ M.A.C.A.No.584/2010 7 surviving spouse, the minimum amount payable for the death of the spouse is 1,00,000/-. In such circumstances, in the light of the₹ decision in **Rajesh's** case (supra) an amount of 90,000/- has to be₹ granted additionally to the first appellant widow of the deceased Younus as the Tribunal has already granted 10,000/- under that head.₹ It is granted. Towards funeral expenses an amount of 20,000/- is₹ granted additionally. No amount was granted towards loss of estate. In the absence of evidence, we are inclined to grant only a conventional amount and accordingly, 5,000/- is granted. Towards transportation₹ expenses 5,00/- was granted. It is the fact that immediately after the₹ accident the deceased was taken to the hospital and he succumbed to the injuries from the hospital. It is also evident that the body was brought back to home. In such circumstances, we are inclined to grant ₹ 500/- more under that head. The nature of the injuries would undoubtedly reveal that the dresses worn by him must have been damaged. Hence, we are inclined to grant 500/- additionally towards₹ damage to clothing. 6. In the light of the assessment and enhancement made as above, the appellants are entitled to get an additional compensation of ₹ 7,41,050/-. It is rounded off to 7,41,100/- and it is granted. The₹ respondent is directed to deposit the said enhanced amount along with M.A.C.A.No.584/2010 8 interest at the rate of 8% per annum from the date of petition till realisation within a period of two months from the date of receipt of copy of this judgment. The enhanced amount granted under the head loss of consortium viz., 90,000/- is available only to the first₹ appellant. Out of 90,000/- granted towards loss of love and affection₹ ₹ 35,000/- each shall be granted to appellants 2 and 3 and 10,000/-₹ each shall be granted to appellants 4 and 5. The balance amount shall be apportioned in between the appellants in the ratio 40:20:20:10:10. The amount payable to appellants 2 and 3 shall be deposited in a Nationalised Bank till they attain majority. Before releasing the amount the Tribunal shall take steps for realising the balance amount of court fee, if by grant of enhanced compensation the total compensation granted exceeded the compensation claimed, in accordance with law. There will be no order as to costs. This appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS