Shila and Others v. Sujatha Asokan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 12TH DAY OF AUGUST 2016 / 21ST SRAVANA, 1938 MACA.No. 1328 of 2008 --------------------------AGAINST THE AWARD IN MVOP 1249/2003 of MACT, IRINJALAKUDA DATED 28-01-2008 APPELLANT(S)/PETITIONERS. - 1 SHILA, AGED 37 YEARS W/O. DECEASED DILEEP, THOTTUNGAL HOUSE, KOTHAPARAMBU P.O., AMANDOOR DESOM, THRISSUR. 2 SHANOOB, AGED 16 YEARS, S/O. DILEEP, MINOR REPRESENTED BY HIS MOTHER SHILA, W/O. DECEASED DILEEP, THOTTUNGAL HOUSE, KOTHAPARAMBU P.O., AMANDOOR DESOM, THRISSUR. 3 SANDESH, AGED 10 YEARS, S/O. DILEEP, MINOR REPRESENTED BY HIS MOTHER SHILA, W/O.DECEASED DILEEP, THOTTUNGAL HOUSE, KOTHAPARAMBU P.O., AMANDOOR DESOM, THRISSUR. BY ADV.SRI.N.KRISHNANKUTTY PILLAI RESPONDENT(S)/DEFENDANTS: 1. SUJATHA ASOKAN - VALIYAPARAMBIL HOUSE, P.O.WEST PERINJANAM, THRISSUR DISTRICT 2. P.T.ROY, S/O. THOMAS, - POOKATTIL HOUSE, MADAPPANTHURUTH P.O., THRISSUR DISTRICT. 3. THE MANAGER, NATIONAL INSURANCE CO.LTD., P.B.NO.25, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARUR, ERNAKULAM. R3 BY ADV. SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ==========================** ## **M.A.C.A. No.1328 OF 2008** **==========================** Dated this the 12[th] day of August, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 28.1.2008 in M.V.O.P.No.1249 of 2003 passed by the Motor Accidents Claims Tribunal, Irinjalakkuda. The said claim petition was filed by the legal heirs of one Dileep who died in a motor vehicle accident occurred on 8.7.2003. They are respectively the widow and sons of the deceased. On that fateful day, deceased Dileep was walking alongside a road when he was knocked down by a bus bearing Reg.No.8/F 8586 driven by the second respondent. The appellant attributed rashness and negligence from the part of the second respondent as the cause of the accident and took necessary averments to make the first respondent vicariously liable and the third **M.A.C.A.1328/2008** 2 respondent, the insurer of the said vehicle to indemnify the first respondent. 2.Before the Tribunal, both sides did not adduce any oral evidence. On the side of the appellants, Exts.A1 to A7 were got marked and on the side of the respondents, the insurance policy was got marked as Ext.B1. After evaluating the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award for a total compensation of `3,03,000/- with interest @ 7% per annum from the date of the petition till realisation. This appeal has been preferred seeking enhancement of the quantum of compensation granted thereunder. 3.We have heard the learned counsel for the appellants and also the learned counsel for the third respondent. It is submitted by the learned counsel on both sides that the only question that calls for consideration in this appeal is regarding the entitlement or otherwise of the appellants to get enhancement of compensation. The learned counsel for the appellants contended that the Tribunal went wrong in **M.A.C.A.1328/2008** 3 fixing the monthly income for the purpose of computing the compensation for loss of dependency. In the claim petition, the petitioners have contended that the deceased Dileep was a diamond cutting worker and was earning `5,000/- per month. The learned counsel further contended that the compensation granted by the Tribunal under other heads also require upward modification. 4.Per contra, the learned counsel for the third respondent submitted that the Tribunal cannot be said to have erred in fixing the monthly income notionally as the appellants had failed to establish their specific contentions taken up in the claim petition regarding the occupation and income of the deceased. At the same time, it is submitted that the Tribunal went wrong in adopting the multiplier. The Tribunal fixed the multiplier as '15'. It is the further submission that a careful scrutiny of the impugned award would reveal that the Tribunal had granted adequate compensation under all heads. Therefore, it is contended that no appellate interference is called for in this case. **M.A.C.A.1328/2008** 4 5.While considering the grievance of the appellants regarding the fixation of the monthly income, it is to be noted that no evidence was let in by the appellants herein to establish their specific averments regarding the occupation and income of the deceased taken up in the claim petition. When that be the indisputable position, the Tribunal cannot be found fault with, in fixing the monthly income notionally for calculation purpose. But then, the question is whether the fixation of the monthly income as `2,250/- invites interference considering the fact that the deceased was 42 years at the time of the accident and the accident had occurred on 8.7.2003. In the absence of materials, we are of the view that the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** can be taken as a guidance for determining the monthly income for calculation purpose. In that case, in respect of an accident that occurred in 2004 to a coolie, the Apex Court fixed the monthly income as `4,500/- notionally. The accident in question had occurred in the year 2003 and as already **M.A.C.A.1328/2008** 5 noticed, the deceased was then aged only 42 years. Therefore, we are inclined to take `4,000/- as the monthly income for calculation purpose. But at the same time, considering the age of Dileep at the time of his death, we are of the view that it cannot be said that he would not have had bright prospects in life had he been alive. In other words, it could not be said that always his wage even as a coolie would have remained static. Even in the case of a person who ekes his livelihood by engaging himself in coolie activities, he would seek for increase in his wages taking into account escalation in price, cost of living etc. by passage of time. In such circumstances, by lapse of time, he would have had an increase in wages had he been alive. It is also to be noted that in the case of manual workers, there is no retirement age and as long as they are hale and hearty, they can continue to engage in such activities. In short, we are of the view that an addition of 30% can be reckoned towards future prospects. In that view of the matter, the monthly income of the deceased for calculation purpose can be taken as `5,200/-. **M.A.C.A.1328/2008** 6 6.Ext.P3 post mortem certificate would reveal that the deceased was aged 45 years. In view of the schedule given in the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier to be adopted in this case, taking note of the age group of the deceased is '14'. In such circumstances, taking into account the re-fixed multiplicand and also the multiplier, the compensation payable under the head loss of dependency has to be reassessed. On such reassessment, the appellants would be entitled to get an amount of `5,82,400/-. The Tribunal had already granted an amount of `2,70,000/- under that head. Deducting the said amount, the appellants would be entitled to get an amount of `3,12,400/additionally under that head. The grievance of the appellant regarding the inadequacy in the matter of compensation awarded under the heads loss of consortium, funeral expenses has to be looked into in the light of the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** In the light of the said decision, in respect of a surviving spouse in a claim for compensation for death filed **M.A.C.A.1328/2008** 7 under section 166, M.V Act, a minimum of `1,00,000/- has to be granted. The appellants have not assigned any reason to persuade us to grant an amount in excess of `10,00,000/-. The Tribunal has already awarded an amount of `15,000/- to the first appellant under that head. In the light of the decision in **Rajesh'** s case (supra), the first appellant is entitled to get `85,000/- additionally. Towards funeral expenses, going by the decision in **Rajesh'** s case (supra), in the absence of evidence for higher expenses, at least an amount of `25,000/- has to be granted. The Tribunal had granted only an amount of `3,000/-. In such circumstances, an amount of `22,000/- is granted over and above the amount granted by the Tribunal under that head. Towards loss of love and affection, the Tribunal granted an amount of `10,000/-. Since the first appellant was already granted compensation under the head loss of consortium, only the appellants 2 and 3 are entitled to get compensation under the said head. Taking note of the fact that the second appellant was aged 16 years and the third appellant was aged 14 years at the time of death of their father, **M.A.C.A.1328/2008** 8 we are inclined to grant an amount of `65,000/- additionally under that head. The third appellant would be entitled to get `50,000/- out of the said enhanced amount and the second appellant is entitled to get an amount of `15,000/- out of the enhanced amount. Towards loss of estate, no amount was granted. We are inclined to grant a conventional amount of `10,000/- under the said head. Towards pain and suffering, the Tribunal granted only an amount of `5,000/-. Taking note of the fact that deceased Dileep died only after about 8 hours since the accident, we are of the view that an amount of `5,000/- can be granted additionally under that head. It is awarded. In the light of the discussions as above, the appellants are entitled to get a total enhanced compensation of `4,99,400/-. The said amount will carry interest @ 8% from the date of the petition till realisation. The third respondent is directed to deposit the enhanced amount along with interest within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the first appellant alone is entitled to get the enhanced amount granted under the head **M.A.C.A.1328/2008** 9 loss of consortium and the appellants 2 and 3 alone would be entitled to get the enhanced amount granted under the head loss of love and affection. It is further made clear that the balance amount alone will be available for apportionment between appellants 1 to 3 in the ratio 50:25:25. The Tribunal shall realise the balance court fee payable, in accordance with law. Appeal is disposed of. No order as to costs. **C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1328/2008** 10 **C.T. RAVIKUMAR, J.** **M.A.C.A.1328/2008** 11 **JUDGMENT September, 2010**