Silomani and others v. Suresh, Vinod and United India Insurance Co Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** ## **MACA.No. 1772 of 2014 ()** **------------------------AGAINST THE AWARD IN OPMV 1094/2010 of M.A.C.T., PALAKKAD DATED 31.5.2013** ## **APPELLANTS/PETITIONERS:** **-----------------------------------** ## **1. SILOMANI, AGED 54 YEARS,** - **W/O LATE NADARAJAN, VATTACHAL VEEDU, VATTEAKKADU, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **2. PUSHPALATHA, AGED 35 YEARS,** - **D/O LATE NATARAJAN, VATTACHAL VEEDU, VATTEAKKADU, KOLLENGODE, CHITTUR TALUK, PALAKKA DISTRICT.** **3. PRAKASAN, AGED 34 YEARS, S/O LATE NATARAJAN, VATTACHAL VEEDU, VATTEAKKADU, KOLLENGODE, CHITTUR TALUK, PALAKKA DISTRICT.** **4. PRATHEESH, AGED 30 YEARS, S/O LATE NATARAJAN, VATTACHAL VEEDU, VATTEAKKADU, KOLLENGODE, CHITTUR TALUK, PALAKKA DISTRICT.** **5. PREEJA, AGED 27 YEARS, D/O LATE NATARAJAN, VATTACHAL VEEDU, VATTEAKKADU, KOLLENGODE, CHITTUR TALUK, PALAKKA DISTRICT.** ## **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENTS/RESPONDENTS:** **--------------------------------------** ## **1. SURESH** - **S/O BHASKARAN, AGE NOT KNOWN, 4/331, EEZHAPARAMBIL VEEDU, CHENPATHAT, KARIMBA (PO), MANNARKKAD, PALAKKAD - 678 597.** ## **2. VINOD** **S/O CHINNAPPAN, MACHATTU VEEDU, NEALLI CHUVADU, POTHUNDY, NENMMARA, PALAKKAD - 678 508.** ## **MACA.No. 1772 of 2014** ## **3. UNITED INDIA INSURANCE CO LTD.,** **L.G.TOWERS, 2ND FLOOR, NEAR BUS STAND, NENMARA (PO), PALAKKAD - 678 508.** **R3 BY ADV. SRI.A.R.GEORGE R1 & 2 BY ADV. SRI.K.ABDUL JAWAD R1 & 2 BY ADV. SRI.U.MUHAMMED MUSTHAFA R1 & 2 BY ADV. SRI.MATHEW A KUZHALANADAN R1 & 2 BY ADV. SMT.VINEETHA V.KUMAR R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.1772 of 2014** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 25[th] day of May, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The appellants are the claimants in O.P.(M.V.)No.1094 of 2010 on the file of the Motor Accidents Claims Tribunal, Palakkad. They had in the said claim petition prayed for award of a total sum of Rs.5,50,000/- as compensation on account of the death of Natarajan, husband of the first claimant and father of claimants 2 to 5. The claimants had in the claim petition averred that the deceased was working as a coolie and was earning a monthly income of Rs.6,000/and that they were solely depending on him for their livelihood. They contended that the accident in which he sustained fatal injuries, took place on account of the rash and negligent driving of the motor cycle owned by the first respondent by its rider, the second respondent. 2. Upon receipt of notice, the first respondent, the owner of the motor cycle, entered appearance and filed a written statement contending inter alia that he had sold it to another on 14.1.2009. He however admitted the fact that it was driven by the second respondent who had a valid driving licence to drive the vehicle and that it was covered by a valid policy of insurance issued by the third respondent. ## **M.A.C.A.No.1772 of 2014** ## **-:2:-** The second respondent did not file a written statement though he entered appearance through counsel. The third respondent, the insurer, entered appearance and filed a written statement admitting the existence of an insurance policy but contending that the compensation claimed is exorbitant and excessive. They also contended that the claimants will have to prove that they are the legal heirs of the victim of the accident. 3. Before the Motor Accidents Claims Tribunal, no oral evidence was adduced on either side. However on the side of the claimants, Exts.A1 to A13 were produced and marked. After considering the rival contentions, the tribunal held relying mainly on the Police records that the accident took place on account of the rash and negligent driving of the motor cycle by the second respondent. The tribunal thereafter awarded a total sum of Rs.3,01,994/- as compensation under various heads as detailed below, including the sum of Rs.2,52,000/- awarded under the head loss of dependency and directed the third respondent insurer to deposit the said amount together with interest and costs. The claimants have, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. |by the tribunal, filed this appeal.|| |---|---| |Heads|Amount Awarded<br>(in Rupees)| |Medical expenses|21,994/-| |Loss of love and affection|10,000/-| ## **M.A.C.A.No.1772 of 2014** ## **-:3:-** |Heads|Amount Awarded<br>(in Rupees)| |---|---| |Loss of consortium|10,000/-| |Loss of estate|5,000/-| |Loss of dependency/economic benefits|2,52,000/-| |Funeral expenses|3,000/-| |Total|3,01,994/-| 4. We heard Sri.Binoy Vasudevan, learned counsel appearing for the appellants and Sri.A.R.George, learned counsel appearing for the third respondent. We have also gone through the pleadings and the materials on record. The impugned award discloses that the tribunal has awarded compensation under the head loss of dependency taking the monthly income of the victim of the accident, who was aged 60 years and was admittedly working as a coolie, as Rs.3,500/-. The deceased had left behind besides his wife, four children, two among whom were daughters. The tribunal has however held that the wife alone was depending on him. Even assuming that the wife alone was depending on him, as he had brought up four children including two daughters and had also, going by the award, given away the daughters in marriage, having regard to the ground realities, we are of the opinion that on a modest estimate, the monthly income of the deceased can be taken as Rs.4,500/- for the purpose of awarding compensation under the head loss of dependency. The deceased had not crossed the age of 60 years. He was in the age group of 50 to 60. ## **M.A.C.A.No.1772 of 2014** ## **-:4:-** Such being the situation, having regard to the law laid down by the Apex Court in **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)], the tribunal ought to have in our opinion taken into account future prospects as well for computing the compensation payable under the head loss of dependency. Computed applying the principles laid down in the aforesaid decision, taking Rs.4,500/- as the monthly income, the compensation payable to the appellants/claimants under the head loss of dependency would be Rs.4,500 x 115% = Rs.5,175 x 12 x 9 x 2/3 = Rs.3,72,600/-. The tribunal has awarded only the sum of Rs.2,52,000/- under that head. We accordingly award to the appellants/claimants an additional compensation of Rs.1,20,600/under the head loss of dependency. 5. The tribunal has by the impugned award, awarded only the sum of Rs.10,000/- under the head loss of consortium, the sum of Rs.10,000/- under the head loss of love and affection to four major children of the deceased including two daughters and the sum of Rs.3,000/- towards funeral expenses. The tribunal has not awarded any amount under the head pain and suffering. It has come out in evidence that though the accident took place on 7.6.2010 the victim passed away only on 17.6.2010 while undergoing treatment at Thrissur. In such circumstances, on a modest estimate, we are inclined to award the sum of Rs.15,000/- under the head pain and suffering. ## **M.A.C.A.No.1772 of 2014** ## **-:5:-** As stated earlier, the tribunal has awarded only the sum of Rs.3,000/towards funeral expenses. In the light of the decision of the Apex Court in **Rajesh v. Rajbir Singh** [supra] wherein it has been held that in the absence of evidence to the contra regarding higher expenses a minimum amount of Rs.25,000/- should have been awarded as compensation, we award a further sum of Rs.22,000/- under the head funeral and other expenses including transportation from Thrissur to Kollengode. The claimants, who are five in number, are the wife and four children of the victim of the accident. The tribunal has notwithstanding the fact that the deceased had left behind four children including two daughters, awarded only a nominal amount of Rs.10,000/- as compensation under the head loss of love and affection. We are of the opinion that on a modest estimate, the tribunal ought to have awarded to each of the children the sum of Rs.10,000/- as compensation. We accordingly award a further sum of Rs.30,000/- as compensation under that head. 6. The tribunal has awarded to the wife of the victim, who was aged only 50 years on the date of the accident and has remained unmarried, the sum of Rs.10,000/- only as compensation under the head loss of consortium. Taking the cue from the decision of the Apex Court in **Rajesh v. Rajbir Singh** [supra] and having regard to the fact that she will have to live without the company and support of her ## **M.A.C.A.No.1772 of 2014** ## **-:6:-** spouse for the rest of her life, we deem it appropriate to award to her an additional compensation of Rs.65,000/- under the head loss of consortium. The compensation awarded under the other heads does not in our opinion call for any enhancement. We accordingly award to the appellants/claimants the sum of Rs.2,52,600/- [Rs.1,20,600 + Rs.15,000 + Rs.22,000 + Rs.30,000 + Rs.65,000] as additional compensation over and above the compensation awarded by the tribunal. The third respondent insurer shall deposit the said amount together with interest at 9% per annum from the date of petition till the date of payment within two months from today. Upon such deposit being made, the sum of Rs.25,000/each from out of the enhanced compensation awarded by this court shall be disbursed to claimants 2 to 5 (children of the victim of the accident) and 50% of the balance amount shall be disbursed to the first claimant and the balance amount shall be kept in fixed deposit in her name for a period of two years. No costs. ## Sd/- **P.N.RAVINDRAN JUDGE** Sd/- ## **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. To Judge **vpv**