Suhara and others v. Chithra Kumar and others (MACA No. 1352 of 2012)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939 MACA.No. 1352 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 1299/2008 of M.A.C.T.,KOLLAM DATED 24-03-2012 APPELLANTS/PETITIONERS 1,3 AND 6 - 8: -------------------------------------------------------------- 1. SUHARA, W/O. ASHRAF, MULLAPPALLY HOUSE, PONMALA MURI, KOOTTAKKAL, NOW RESIDING AT MULLAPPALLY HOUSE, ALTTUKAVU NAGAR - 99, KANNIMEL CHERI, SAKTHIKULANGARA, KOLLAM DISTRICT. 2. ANAS, MINOR, AGED 14 YEARS, S/O. ASHRAF, MULLAPPALLY HOUSE, PONMALA MURI, KOOTTAKKAL, NOW RESIDING AT MULLAPPALLY HOUSE, ALTTUKAVU NAGAR - 99, KANNIMEL CHERI, SAKTHIKULANGARA, KOLLAM DISTRICT. 3. ABDUL MAJEED, S/O. KUTTIYADI, MULLAPPALLI HOUSE, KOTTAKKAL, MALAPPURAM. 4. ABDUL NAZAR, S/O. KUTTIYADI, MULLAPPALLI HOUSE, KOTTAKKAL, MALAPPURAM. 5. SAFIA, D/O. NAFEESA, KALATTINGAL HOUSE, KADANNAMANNA.P.O, MANKADA, MALAPPURAM (IST APPELLANT IS FILING THIS APPEAL FOR HERSELF AND ON BEHALF OF 2ND APPELLANT ALSO AS THE NATURAL GUARDIAN WHO IS A MINOR) BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENTS/RESPONDENTS AND 2 & 5: ------------------------------------------------------------ 1. CHITHRA KUMAR, S/O. DAMODARAN ACHARI, SAKTHI BHAVAN, PALLANA.P.O, THRIKKUNNAPUZHA - 690 515. 2. V.S. SURESH,S/O. SUSEELAN, VALUPARAMBIL HOUSE, THRIKKODITHANAM.P.O, CHANGANACHERRY, PIN - 686 105. 3. UNITED INDIA INSURANCE COMPANY LIMITED CHANGANACHERRY, KOTTAYAM DISTRICT -686 101. 4. UNAILS, S/O. ASHRAF, MULLAPPALLY HOUSE, PONMALA MURI, KOTTAKKAL, NOW RESIDING AT MULLAPPALLY HOUSE, ALTUKAVU NAGAR -99, KANNIMEL CHERI, SAKTHIKULANGARA, KOLLAM DISTRICT - 691 581. 5. AHMMED KUTTY,S/O. KUTTIYALI, MULLAPPALLY HOUSE, KURUPPAM PADI.P.O, CHAPPANANGADI, KOTTAKKAL, MALAPPURAM - 676 503. R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. -----------------------------------M.A.C.A.No.1352 of 2012** **----------------------------------Dated this the 7[th] day of July, 2017** ## **J U D G M E N T** ## Ravikumar, J This appeal arises out of the judgment and award passed by the Motor Accidents Claims Tribunal, Kollam dated 24.03.2012 in O.P.(M.V.)No.1299 of 2008. The appellants are the legal heirs of the victim of a motor vehicle accident involving a motorcycle and a Maruthi Van. The deceased Asharaf was a pillion rider in the motorcycle bearing Registration No.KL-09/L-6415. The other vehicle involved in the accident, the Maruthi Van bearing Registration No.KL-05/W-1417, was being driven by the first respondent. The deceased sustained serious injuries in the accident and succumbed to them. It is in the said circumstances that the aforesaid claim petition was filed under Section 166 of the Motor Vehicles Act. Before the Tribunal on the side of the appellants A1 to A12 were marked and PWs.1 to 3 were got examined. There was no evidence on the side of the respondents. As per the impugned award, the Tribunal granted a total compensation of 6,51,056/- with interest @₹ 7.5% from the date of petition, till realisation. This appeal is filed seeking enhancement of the quantum of compensation granted as per the impugned award. M.A.C.A.No.1352 of 2012 2 2. We have heard the learned counsel for the appellants and also the learned counsel for the third respondent. There is no dispute regarding the accident, the cause of accident as also the liability of the third respondent to indemnify the insured owner of the aforesaid offending vehicle. Hence, the sole question to be decided is whether the appellants are entitled to enhancement of compensation and if so, what should be the extent of additional compensation. 3. The main grievance of the appellants is that the Tribunal had erroneously fixed the monthly income of the deceased and it resulted in deprival of just compensation. In the claim petition it was averred that the deceased was an agriculturist and he was earning 7,500/- per month. The fact that he was an agriculturist is₹ sought to be established through the oral testimonies of PWs.2 and 3. PW3 is the Agricultural Officer who had issued Ext.A7 certificate. PW2 was the then Village Officer, who issued Ext.A8. They had deposed before the Tribunal that there could not be a fixed income from agriculture operations. However, they tendered evidence to the effect that the deceased was conducting cultivation of arecanut, betel leaves and paddy. The Tribunal took note of the oral testimonies of PWs.2 and 3 and the documentary evidence in Exts.A7 & A8, but declined to accept the income certified M.A.C.A.No.1352 of 2012 3 thereunder, for calculation purpose. The Tribunal found that the aforementioned crops are seasonal and therefore, it could not be said that the deceased was having a steady income from agricultural operations. The said finding cannot be said to be a perverse finding warranting an interference. Even then, the question is whether the fixation of monthly income as 5,500/-₹ warrants interference. The accident occurred on 04.10.2008 and on sustaining serious injuries Asharaf died on the same day itself. He was then aged 43 years. The evidences of PWs.2 and 3 with Exts.A7 and A8 would reveal that the deceased was an agriculturist. Even while holding that he was conducting agricultural operations of seasonal crops, the fact is that Asharaf was maintaining a family consisting of himself and four others including his wife, children and mother. In such circumstances, we are of the view that the monthly income of the deceased is bound to be re-fixed and we re-fix the monthly income as 6,500/-. The multiplier was correctly identified₹ by the Tribunal with reference to the age of the deceased as '14', since the deceased belonged to the age group of 41-45. The learned counsel for the appellants contended that the Tribunal went wrong in effecting deduction from the income, reckoning the personal and living expenses of the deceased. It is submitted that instead of making a deduction of 1/4[th] of the income, the Tribunal 4 M.A.C.A.No.1352 of 2012 deducted 1/3. The mother of the deceased viz., the fourth petitioner, died during the pendency of the claim petition. Subsequent to her death, her legal heirs were impleaded as petitioners 5 to 8 as per order dated 05.07.2011, in the claim petition. Thus it can be seen that the deceased was actually survived by his wife, two children and mother and therefore, the number of dependants was only 4. In the light of _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]**_ , when the number of dependants is 4, deduction towards personal and living expenses has to be 1/4. Taking into account the aforesaid factors, compensation for loss of dependency has to be reassessed. On such reassessment, an amount of 8,19,000/- is payable under₹ that head. The Tribunal has awarded an amount of 6,16,056/-.₹ Hence, an additional amount of 2,02,944/- is payable under the₹ head loss of dependency. The first appellant, wife of the deceased was aged only 35 years at the time of death of her husband. The Tribunal has awarded only an amount of 10,000/- towards loss of₹ consortium. We are of the view that in the light of the decision of the Honourable Apex court in _**Rajesh v. Rajbirsingh [2013 (3) KLT 89]**_ for the loss of marital bliss, she is entitled to get an amount of 1,00,000/- towards loss of consortium. After deducting₹ the amount granted by the Tribunal under the said head, the first M.A.C.A.No.1352 of 2012 5 appellant is entitled to get an additional amount of 90,000/-₹ towards loss of consortium. No amount was awarded by the Tribunal towards loss of love and affection. Petitioners 2 and 3, viz., appellant No.2 and respondent No.4 in this appeal, the children of the deceased Asharaf were minors at the time of death of their father. As noticed earlier, he was also survived by his mother. They are entitled to get compensation under the head loss of love and affection. We are inclined to grant an amount of 1,00,000/-₹ towards loss of love and affection and we do so. Out of the said amount, petitioners 2 and 3 viz., the 2[nd] appellant and the 4[th] respondent are entitled to get 40,000/- each and the mother was₹ entitled to get an amount of 20,000/-. Since she is no more, her₹ legal heirs, who are petitioners 5 to 8 in the claim petition, are entitled to get the share to be allotted to her from out of the amount assessed as compensation. Towards funeral expenses the Tribunal granted only an amount of 10,000/-. In the light of the decision in₹ _**Rajesh**_ 's case (supra), an amount of 15,000/- in addition to the₹ amount already granted by the Tribunal is payable under that head. The impugned award shows that the Tribunal had not awarded any amount towards pain and sufferings. It is evident from the impugned award itself that on sustaining the injuries, Asharaf was taken to the Medical College Hospital, Alappuzha and he succumbed to the 6 M.A.C.A.No.1352 of 2012 injuries on the same day itself while undergoing treatment. In such circumstances, the Tribunal ought to have granted some amount towards pain and sufferings. We are inclined to grant an amount of ₹5,000/- under that head. 4. In view of the above assessment/reassessment, the total additional compensation payable would become 4,12,944/-, which₹ is rounded of to 4,13,000/-. Out of the additional compensation₹ granted towards loss of dependency, an amount of 25,000/- could₹ have been granted to the fourth respondent, the mother of the deceased. Since she is no more, additional petitioners 5 to 8 in the claim petition viz., appellant Nos.3 to 5 and respondent No.5 in this appeal are entitled to get the share of compensation granted in favour of the deceased 4[th] petitioner in the claim petition. In other words, out of the additional compensation granted, the additional claimants are entitled only to a total amount of 45,000/- (₹ ₹20,000 + 25,000). We have already made it clear that the first appellant₹ alone is entitled to get the additional compensation granted under the head loss of consortium and petitioners 2 and 3 in the claim petition viz., the 2[nd] appellant and the 4[th] respondent in this appeal are entitled to get 40,000/- each towards loss of love and affection.₹ The balance amount of additional compensation alone will be available for equal apportionment among petitioners 1 to 3 viz., M.A.C.A.No.1352 of 2012 7 appellants 1 and 2 and the 4[th] respondent, in this appeal. The third respondent in this appeal is directed to deposit the additional compensation granted in this appeal along with interest @ 8% per annum from the date of petition till realisation within a period of two months from the date of receipt of a copy of this judgment. There will no order as to costs. This appeal is disposed of as above. Sd/- ## **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** AV /True Copy/ P.A to Judge