Suma K.P. and Rema K.P. v. Gijo Mon, Rajeshmon and The Oriental Assurance Co. Ltd.

## **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 21ST DAY OF JULY 2017 / 30TH ASHADHA, 1939** ## **MACA.No. 1929 of 2011** **----------------------AWARD IN OPMV 1847/2008 of M.A.C.T., KOTTAYAM DATED 04-08-2011** **----------------** ## **APPELLANT(S)/PETITIONERS :-** **-------------------------** **1. SUMA K.P., VALIYAKALLUNKAL HOUSE, MATTAKKARA POST, KOTTAYAM.** **2. REMA K.P., VALIYAKALLUNKAL HOUSE, MATTAKKARA POST, KOTTAYAM.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT(S)/RESPONDENTS :-** **----------------------------** **1. GIJO MON,** - **KIZHAKKEPARAMBIL, KUMARAKOM KARA, KOTTAYAM - 686 563.** **2. RAJESHMON, PUTHENPURA HOUSE, KUMARAKOM KARA, KOTTAYAM - 686 563.** **3. THE ORIENTAL ASSURANCE CO. LTD., KOTTAYAM - 686 001.** **R3 BY ADV. SRI.A.R.GEORGE BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR, J. & ANIL K. NARENDRAN, J.** ## **---------------------------------------M.A.C.A. No.1929 of 2011 ------------------------------------------------Dated this the 21[st] day of July 2017** ## **J U D G M E N T** ## **C.T.Ravikumar, J.** The siblings of the victim of a motor accident have come up in appeal seeking enhancement of the quantum of compensation granted by the Motor Accidents Claims Tribunal, Kottayam as per the award in O.P.(MV) No.1847/2008. The facts in brief relevant for the purpose of disposal of this appeal, are as hereunder :- 2. Sri.Ratheesh K.P., the brother of the appellants died in a motor vehicle accident occurred on 10.8.2008, while he was travelling as a pillion rider in the motorcycle bearing registration No.KL-5/Y-2864 driven by the 1[st] respondent. During its course through Changanassery – Vazhoor public road, the motorcycle overturned and Sri.Ratheesh had sustained serious injuries. He was immediately taken to the hospital and on 12.8.2008, he succumbed to the injuries. The claim petition was filed under Section 166 of the M.V. Act seeking a total compensation of `2,00,000/-. Before the Tribunal, Exts.A1 to A15 documents were marked on the side of the appellants/claimants. They did not adduce any oral evidence. Respondents did not adduce any oral M.A.C.A. No.1929 of 2011 -: 2 :- or documentary evidence. After considering the evidence on record and the rival contentions the Tribunal had passed the impugned judgment granting a total compensation of `74,400/with interest at the rate of 7.5% per annum from the date of petition till realisation. 3. We have heard learned counsel for the appellants and also learned counsel appearing for the 3[rd] respondent. 4. There is no dispute regarding the accident, cause of the accident and also the liability of the 3[rd] respondent to indemnify the owner of the offending vehicle. Hence, the sole question to be considered in this appeal is regarding the entitlement of the appellants to get enhanced compensation. In support of the claim for enhancement of compensation, the learned counsel appearing for the appellants contended that the Tribunal had committed a patent illegality in not granting compensation under the head 'loss of dependency'. It is contended that the appellants being the sisters of the deceased, ought not to have been taken as a reason for denying compensation under the head 'loss of dependency'. It is further submitted that the compensation granted under different heads, as can be seen from the schedule of compensation in the impugned judgment, are on the lower side. M.A.C.A. No.1929 of 2011 -: 3 :- 5. The learned counsel for the 3[rd] respondent resisted the said contentions and submitted that the Tribunal had rightly denied the dependency compensation taking into account the facts that the appellants were married, living separately and also that there was absolute absence of any evidence to show that they were depending on the deceased at the time of the accident. It is also contended that the Tribunal had granted adequate compensation under all the other heads. 6. We will firstly consider the question whether the denial of dependency compensation to the appellants can be sustained. A scanning of the impugned judgment would reveal that the Tribunal had categorically found that the appellants were given in marriage and they were living separately from the deceased at the time of the accident. A perusal of the appeal memorandum would reveal that despite such a clear finding in the impugned judgment the appellants had not made any challenge against the said finding. In other words, it can be seen that they would virtually admit the fact that they were given in marriage and were not living together with the deceased. In short, the fact that there was absolute absence of evidence to show that they were depending on the deceased is not at all disputed. In such circumstances, it cannot be said that the Tribunal had committed M.A.C.A. No.1929 of 2011 -: 4 :- any error or illegality by denying compensation under the head 'loss of dependency'. 7. Then, the next question is when the claimants are not entitled to dependency compensation, whether they are entitled to get compensation for the death of a person concerned? The question that when there was no loss of dependency whether the claimant, who is a legal representative, would be entitled to get compensation for the death was considered by the Hon'ble Apex Court in the decision in **Manjuri Bera** v. **Oriental Insurance Company Ltd.** [2008 (2) KLT 873 (SC)]. Paragraph 20 of the said decision is relevant for the purpose of this case, which reads thus :- “20. In my opinion, “no-fault liability”, envisaged in S.140 of the said Act, is distinguishable from the rule of “strict liability”. In the former, the compensation amount is fixed. It is `50,000/- in cases of death [S.140(2)]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount/crystallised amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive M.A.C.A. No.1929 of 2011 -: 5 :- compensation under “no-fault liability” in terms of S.140 of the said Act. My opinion is confined only to the “no-fault liability” under S.140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988.” It is thus obvious from the decision in **Manjuri Bera** 's case (supra) that a legal representative including a legal heir, could inherit the estate of the deceased and what is payable under Sec.140 of the Act would also become estate of the deceased and therefore, it could be inherited. In the light of the above decision, we are of the view that the appellants are entitled to get compensation payable under “no fault liability” in terms of the provisions of Sec.140 of the M.V. Act, which comes to `50,000/- in the case of death. Accordingly, we hold that the appellants are entitled to get ` **50,000/-** payable under Sec.140 of the M.V. Act. 8. Apart from the same, the appellants are also entitled to get compensation under certain other heads. Since they are entitled to inherit the estate of the deceased, they are also entitled to get compensation towards 'loss of estate'. In the absence of any cogent evidence, we are inclined to grant a conventional amount, viz., ` **10,000/-** towards 'loss of estate'. 9. Now, the question is whether the appellants are entitled to get enhancement of compensation under any other M.A.C.A. No.1929 of 2011 -: 6 :- heads. The accident in question had occurred on 10.8.2008. The Tribunal had granted only an amount of `10,000/- towards 'funeral expenses'. In the contextual situation, it is relevant to refer to the decision of the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89]. In the said decision, the Apex Court held that in the absence of evidence regarding higher expenses, a minimum of `25,000/- shall be granted towards 'funeral expenses'. The accident in that case had occurred in the year 2007. In the instant case, the accident had occurred subsequently, viz., in the year 2008. Therefore, we are of the view that the appellants are entitled to get the benefit of the said decision. In that view of the matter, an amount of ` **15,000/-** is granted additionally towards 'funeral expenses'. 10. Towards 'loss of love and affection', the Tribunal had awarded only an amount of 20,000/-. The appellants are none other than the sisters of the deceased. In view of the position obtained in this case based on the evidence on record that there are no other legal heirs for the deceased, they could not be deprived of compensation for loss of love and affection. Evidently, they lost their only brother. Considering the relationship with the deceased, we are of the view that an amount of ` **20,000/-** can be granted additionally under the said head. M.A.C.A. No.1929 of 2011 -: 7 :- 11. Despite the persuasive arguments of the learned counsel for the appellants, we do not find any reason to interfere with the assessment of compensation made under any other head, by the Tribunal. Hence, the appellants are entitled to get an additional compensation of ` **95,000/-.** Since there is no dispute regarding the liability to indemnify the insured, the 3[rd] respondent insurer is directed to deposit the aforesaid additional compensation along with 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 a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR JUDGE** **Sd/ANIL K. NARENDRAN JUDGE** //True copy// P.A. To Judge Jvt/28.7.2017