Subhadra and others vs Kassim V.P and The Oriental Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** ## **MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937** ## **MACA.No. 1970 of 2011 ( )** **-------------------------AGAINST THE AWARD IN OPMV 1368/2010 of M.A.C.T.,KOZHIKODE DATED 23-07-2011** **----------------------------------------------------** ## **APPELLANT(S)/PETITIONERS :** **---------------------------------------------** ## **1. SUBHADRA, AGED 44 YEARS,** **S/O.LATE ANIL KUMAR.** ## **2. ARUN KUMAR, AGED 26 YEARS,** **S/O.LATE ANILKUMAR** **3. SANAL KUMAR, AGED 26 YEARS, S/O.LATE ANIL KUMAR** **4. BHARGAVI, AGED 69 YEARS, W/O.LATE CHANDU** ## **BY ADV. SRI.V.S.CHANDRASEKHARAN** ## **RESPONDENT(S):** **-------------------------** ## **1. KASSIM V.P, AGED 30 YEARS, RESIDING AT VALIYAPARAMBIL HOUSE P.O TANUR, MALAPPURAM.** **2. THE ORIENTAL INSURANCE CO.LTD JASEELA COMPLEX,BYE PASS JUNCTION, NILAMBUR ROAD, MANJERY.** ## **R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) ADV.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VS** ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** **--------------------------------------------------M.A.C.A. No.1970 of 2011** **---------------------------------------------------** Dated this the 11[th] day of January, 2016 ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** Legal heirs and dependents of the victim of a motor accident who were the claimants in O.P.(M.V.)No.1368/2010 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode filed this appeal seeking enhancement of the amount of compensation granted as per the award therein. In fact, they are respectively the wife, sons, and mother of the deceased Anil Kumar. The accident occurred on 18.01.2010 at about 11 A.M while the deceased Anil Kumar was standing by the side of the Puthentheru Angadi in Thanur Village. The offending vehicle which is an autorikshaw bearing Registration No.KL-55-D-8023 driven by the first respondent, the owner-cum-driver of the said autorikshaw, knocked him down. Anil Kumar was taken to Medical College Hospital, _M.A.C.A. No.1970 of 2011 -2-_ Kozhikode and after having undergone treatment for 36 days, he succumbed to the injuries, on 22.02.2010. The claim petition was filed in the said circumstances raising necessary allegations of negligence against the first respondent as also necessary averments to make the second respondent, the insurer to indemnify the first respondent, the insured. 2. Before the Tribunal both sides did not adduce any oral evidence. On the side of the appellants Exts.A1 to A4 were marked. No documentary evidence was adduced by the respondents. After appreciating the evidence on record and the arguments advanced, the Tribunal found that the accident in which Anil Kumar lost his life had occurred due to the negligence of the driver of the Autorikshaw, the first respondent. As noticed herein before, he himself was its owner and was then holding a valid insurance policy in respect of the said vehicle were not at all disputed and taking note of the said aspects the second respondent, the insurer was held liable to indemnify the insured-first _M.A.C.A. No.1970 of 2011 -3-_ respondent. Consequently, an award was passed for a total amount of Rs.4,50,000/- with interest at the rate of 7% from 02.09.2010 till realisation. The compensation was ordered to be divided among the appellants in the ratio 2:1:1:1. It is dissatisfied with the quantum of compensation awarded by the Tribunal that the claimants preferred this appeal. 3. We have heard the learned counsel for the appellants and also the learned counsel appearing for the second respondent, the insurer. 4. The learned counsel for the appellants raised contentions to canvas the position that the amounts awarded by the Tribunal under different heads are too inadequate. It is contended that at the time of the accident, the deceased, Anil Kumar was aged 49 years and that the appellants were then aged 44 years, 26 years, 24 years and 69 years respectively. It is also contended that the deceased was a tailor by profession and in the said circumstances the Tribunal went wrong in taking the monthly income of the deceased only at Rs.3,500/- _M.A.C.A. No.1970 of 2011 -4-_ disregarding the claimed monthly income of Rs.8,500/-. It is further contended that only an amount of Rs.5,000/- was given under the head 'loss of consortium'. In the light of the decision of the Honourable Apex Court in _**Rajesh v. Rajbir Singh**_ reported in _**2013 (3) KLT 89**_ , it is contended that at least an amount of Rs.1 lakh ought to have been granted towards 'loss of consortium'. It is also contended that the compensation towards loss of love and affection fixed by the Tribunal was meagre. Though an amount of Rs.30,000/- was claimed under the said head only an amount of Rs.10,000/was granted. It is the further submission that under the head of pain and suffering an amount of Rs.40,000/- was claimed and only an amount of Rs.10,000/- was granted by the Tribunal. Considering the fact that the deceased Anil Kumar had been an inpatient for 36 days and thereafter, succumbed to the serious injuries, there was no reason for not awarding the amount as claimed by the claimants towards pain and sufferings, it is contended. As against the claim of Rs.1 lakh towards the loss of estate only an amount _M.A.C.A. No.1970 of 2011 -5-_ of Rs.5,000/- was granted and this, according to the learned counsel, is also on the lower side. The learned counsel further contended that the compensation towards loss of dependency was also not calculated properly by the Tribunal and the amount ought to have been more than Rs.4,09,500/-, the amount arrived at by the Tribunal. Though the deceased Anil Kumar had been an inpatient for 36 days no amount what so ever was granted under the head of bystanders expenses, it is contended. 5. Per contra the learned counsel appearing for the second respondent contended that the compensation granted as per the impugned award is the 'just compensation' to which the appellants are entitled taking into account the evidence on record. It is further contended that only an amount of Rs.4 lakhs was claimed under the head of loss of dependency by the appellants, but the Tribunal granted Rs.4,09,500/-. It is also the contention that though the appellants claimed that the deceased was a tailor by profession, no evidence what so ever was adduced _M.A.C.A. No.1970 of 2011 -6-_ by the appellants to establish the said claim and in the said circumstances the Tribunal has rightly taken Rs.3,500/- as notional income for the purpose of calculating the compensation. In short, according to the learned counsel for the second respondent the appellants are not entitled to get any enhancement under any of the heads. 6. The evidence on record would reveal that Exts.A1 to A4 were marked on the side of the petitioners. Ext.A1 is the copy of the FIR, Ext.A2 is the copy of the Postmortem report, Ext.A3 is the copy of the family membership certificate and Ext.A4 is the copy of the registration certificate. Admittedly, there was valid insurance coverage for the offending vehicle at the time of accident. The fact that the deceased Anil Kumar was standing by the side of the Puthentheru Angadi while being hit down by the Autorikshaw driven by the first respondent is also not in dispute. The Tribunal has taken into account the fact that the first respondent remained _exparte_ and no evidence was adduced by the second respondent to _M.A.C.A. No.1970 of 2011 -7-_ establish negligence on the part of the deceased or absence of negligence on the part of the first respondent. In the said circumstances we are of the considered view that the Tribunal was right in arriving at the conclusion that the accident occurred due to the negligence of the first respondent, the owner-cum-driver of the Autorikshaw. Now, we will examine the adequacy of the compensation granted by the Tribunal under the disputed heads. The impugned award would reveal that an amount of Rs.35,000/- was claimed under the head loss of consortium and the Tribunal had granted an amount of Rs.5,000/-. In the light of the decision of the Honourable Apex Court in _**Rajesh'** case (supra)_ loss of consortium ought to have been at least Rs.1 lakh. No circumstances compelling grant of an amount more than one lakh under that head was brought out by the appellants. In the said circumstances going by the dictum laid down by the Honorable Apex Court in _**Rajesh'** case (supra)_ under the head of loss of consortium the appellants are entitled to get additionally an amount of Rs.95,000/-. _M.A.C.A. No.1970 of 2011_ _-8-_ Considering the relationship between the appellants and the deceased, we are of the view that the Tribunal went wrong in not granting the amount claimed under the head of loss of love and affection. Though an amount of Rs.30,000/- was claimed under the said head only an amount of Rs.10,000/was granted thereunder and in the said circumstances the appellants are entitled to get additionally an amount of Rs.20,000/- under the said head. As noticed hereinbefore, the deceased had been an inpatient for 36 days and he succumbed to the head injuries sustained in the accident only after great suffering the appellants have claimed an amount of Rs.40,000/- under the head 'pain and suffering' but only an amount of Rs.10,000/- was granted. We find no reason as to why the entire amount claimed should not be granted taking into account such aspects. In the said circumstances we hold that the appellants are entitled to get additionally an amount of Rs.30,000/- under that head. Under the head 'loss of estate' an amount of Rs.1 lakh was claimed and the Tribunal granted only an amount of _M.A.C.A. No.1970 of 2011 -9-_ Rs.5,000/-. Taking into account the circumstances expatiated above, we are of the view that the appellants are entitled to get additionally an amount of Rs.20,000/- toward 'loss of estate'. Under the head of loss of dependency only an amount of Rs.4 lakh was claimed and evidently the Tribunal granted more than the amount claimed viz., Rs.4,95,000/-. It is to be noted that though in the claim petition it is claimed that the deceased Anil Kumar was a tailer by profession no evidence whatsoever was adduced by the appellants to establish the claim. In the said circumstances, we find no reason to interfere with the amount of monthly income fixed by the Tribunal at Rs.3,500/-. There is no case for the appellants that the multiplier was incorrectly taken. In fact, it is correctly taken as '13' in the light of the decision of the Honorable Apex Court in _**Sarala Varma v. Delhi Transport Corporation**_ reported in _**2010 (2) KLT 802 (SC)].**_ However, going by the dictum laid down by the Apex Court in _**Rajesh'** case (supra),_ taking into account the future prospects, even in the _M.A.C.A. No.1970 of 2011_ _-10-_ case of self employed persons the actual income of the victim must be enhanced for the purpose of computation of compensation under the head loss of dependency. In the case of persons between the age group of 40-50 the actual income has to be enhanced by 30% in that regard. In this case, going by the evidence on record the deceased Anil Kumar was a self employed person and his age at the time of his death was 49 years. Thus, going by the decision of the Honorable Apex Court the actual income of the deceased ought to have been enhanced for the purpose of compensation under the said head by 30%. In the said circumstances, by following the formula by which the Tribunal arrived at the amount of compensation payable under the head of loss of dependency with necessary modification, in view of what is stated above, the compensation under the said head has to be reassessed. Going by such calculation, the amount would be Rs.5,32,350/- instead of Rs.4,09,500/-. The deceased had been in hospital for 36 days and at the same time a perusal _M.A.C.A. No.1970 of 2011_ _-11-_ of the award would reveal that no amount whatsoever was granted under the head 'bystanders expenses'. Taking into account the fact that he had been inpatient for 36 days definitely he must have the assistance of a bystander. In the said circumstances we are of the view that the appellants are entitled to get an amount of Rs.250/- per day under the said head. In the said circumstances they are entitled to get an amount of Rs.9,000/- under the head 'bystander's expense'. In the said circumstances the amount of compensation payable to the appellants are reassessed as hereunder. |**_Head of claims_**|**_Amount_**<br>**_claimed_**|**_Amount_**<br>**_awarded_**| |---|---|---| |1. Transport to hospital|Rs.3,000/-|Rs.3,000/-| |2. Damage to clothing|Rs.2,000/-|Rs.2,000/-| |3. Treatment expenses|Rs.10,000/-|Rs.10,000/-| |4. Funeral expenses|Rs.5,000/-|Rs.5,000/-| |5. Loss of consortium|Rs.35,000/-|Rs,1,00,000/-| |6. Loss of love and<br>affection|Rs.30,000/-|Rs.30,000/-| |7. Pain and suffering to<br>the victim|Rs.40,000/-|Rs.40,000/-| |8. Loss of estate|Rs.1,00,000/-|Rs.25,000/-| _M.A.C.A. No.1970 of 2011_ _-12-_ |**_Head of claims_**|**_Amount_**<br>**_claimed_**|**_Amount_**<br>**_awarded_**| |---|---|---| |9. Loss of dependency|Rs.4,00,000/-|Rs.5,32,350/-<br>(4,550x12x13x<br>3/4)| |By-standers expenses|----|Rs.9,000/-| |**_Total_**|Rs.6,25,000/-|**_Rs.7,56,350/_-**<br>(Rupees Seven<br>lakhs fifty six<br>thousand three<br>hundred<br>and<br>fifty only)| 7. As noticed hereinbefore, the appellants were granted an amount of Rs.4,50,000/- under the impugned award. By virtue of this judgment the appellants are entitled **-** to get a total compensation of _**Rs.7,56,350/**_ (Rupees Seven lakhs fifty six thousand three hundred and fifty only). The enhanced amount Rs.3,06,350/- will carry interest at the rate of 8% from the date of petition till realisation. The amount of compensation shall be apportioned among the petitioners as ordered in the impugned award. The second respondent is directed to deposit the amount within a period of 3 months from the date of receipt of a copy of this judgment, failing which the interest for the amount remaining to be _M.A.C.A. No.1970 of 2011 -13-_ paid would carry interest at the rate of 9% from the date of award till realisation. M.A.C.A. is allowed as above. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** vs /TRUE COPY/ PA TO JUDGE