Sumithra K. and others v United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 MACA.No. 1985 of 2005 ----------------------OPMV.1608/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANTS: APPELLANTS/PETITIONER ----------------------------------- 1. SUMITHRA.K., AGED 29 YEARS, W/O.LATE ASHOKAN.V.A. 2. ANUSHA.A.V., AGED 11 YEARS, (MINOR) D/O.LATE ASHOKAN.V.A. 3. ANUSREE, AGED 8 YEARS, D/O.LATE ASHOKAN.V.A. 4. ITTICHIRA, 62 YEARS, W/O.APPUTTY, ALL APPELLANTS ARE RESIDING AT VATTOLIPARAMBIL HOUSE, MANASSERI, KOZHIKODE. (MINOR APPELLANTS ARE REPRESENTED BY MOTHER IST APPELLANT). BY ADV. SRI.P.SAMSUDIN SRI.P.BABU KARTHIKEYAN. RESPONDENT: --------------UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, M ANJERI 676 121. ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C. HARI RANI,JJ** ============================== ## **M.A.C.A. NO. 1985 OF 2005-G** ============================ ## **DATED THIS THE 5TH DAY OF JANUARY 2010** ## **JUDGMENT** ## **Basant,J.** The claimants are the wife, aged 25 years, two minor daughters aged 7 years and 4 years and mother aged 58 years of a deceased person. He suffered injuries in a motor accident which took place on 25-5-2001. He was an inpatient till 28-5-2001 and succumbed to his injuries on that day. He was a 36 year old carpenter. Compensation was claimed by the claimants. The claimants staked a claim for an amount of Rs. 3 lakhs as compensation. Though according to them, the actual loss suffered was greater, for payment of court fee the claim was limited to Rs.3 lakhs. MACA 1985/2005 -2- 2. The accident is admitted. The liability of the respondent-Insurer to pay compensation was not disputed. The dispute thus was essentially one regarding quantum of compensation payable only. 3. The Tribunal on an anxious consideration of the relevant materials (materials available were the oral evidence of the first claimant-wife and Ext.A1 & A2) proceeded to award only an amount of Rs.1,73,000/- as compensation as per the details shown below: Transport to hospital : Rs. 1,000.00 Funeral expenses : Rs. 2,000.00 Loss of consortium : Rs.5,000.00 Pain and suffering : Rs.5,000.00 Dependency(15000x2x16):Rs.1,60,000.00 3 Total : Rs.1,73,000.00 ============= 4. We have heard the learned counsel for the appellant and the learned counsel for the respondent-Insurer. The MACA 1985/2005 -3- learned counsel for the appellant assails the impugned award on various grounds. 5. First of all, it is contended that the amount of Rs.2,000/- awarded towards funeral expenses is painfully low. We find no merit in this contention. On the materials available, the court below cannot be found to have committed any error in awarding only an amount of Rs.2,000/- as funeral expenses. 6. The learned counsel contends that no fair, just and reasonable compensation has been awarded under the head loss of consortium and loss of love and affection. The wife was aged 25 years. Going by the dictum in **Sarla Verma v. DTC, (2009)6 S.C.C.121** at least an amount of Rs.10,000/must have been awarded as compensation for loss of consortium, contends the counsel. We find merit in this contention. The first claimant was aged 25 years. The deceased was aged 36 years. The children were aged 7 MACA 1985/2005 -4- years and 4 years. Taking all the relevant circumstances, we are satisfied that the quantum of compensation for loss of consortium should have been fixed fairly and reasonably at Rs.10,000/-. 7. No amount of compensation was awarded under the head loss of love and affection. The deprivation in so far as the two children and aged mother are concerned on this aspect has been totally ignored by the court below. We agree with the learned counsel for the appellant that some amount is payable under the said head. We fix the amount payable at Rs. 5,000/-. 8. Counsel contends that the compensation awarded under the head of pain and suffering is not reasonable. The deceased was in the hospital enduring pain and suffering for a period of about four days. He succumbed to the injuries only on the 4[th] day, after the accident. We are satisfied that the amount of compensation awarded under the head of MACA 1985/2005 -5- pain and suffering is inadequate. We are satisfied that an amount of Rs.7500/- ought to have been awarded as compensation under the head pain and suffering. 9. For loss of estate, no amount is seen awarded. We are satisfied in the circumstances of the case, following the dictum in **Sarla (supra)** that an amount of Rs.5,000/- can safely be awarded as compensation under the head of loss of estate. 10. The counsel contends that the monthly income was reckoned unrealistically at Rs.15,000/-per month. Available indications suggest that the deceased was a carpenter by profession. No clinching and convincing evidence about his employment and income was however placed before the court. But we have circumstances to speak for themselves. They reveal that the deceased was a person aged 36 years. His wife aged 25 years,the minor daughters aged 7 years and 4 years and the mother aged 58 years, in addition to MACA 1985/2005 -6- the deceased, were depending on him for sustenance. To keep body and soul of such a family, it can be assumed safely that the deceased must have been earning an income of at least Rs.2,000 **/-** per month in 2001. In any view of the matter, we are satisfied that the said amount can safely be assumed to be the monthly income. In the Kerala context a court will be absolutely justified in drawing the presumptions of prudence even in the absence of better evidence that a carpenter aged 36 years would be earning such amount. 11. The learned counsel contends that going by the dictum in **Sarla (supra)** , only 1/4[th] of the monthly earnings must have been reduced towards the personal expenses of the deceased. The indications available suggest that the deceased had a family of five including himself depending on the income of him. In these circumstances, deduction of only 1/4[th] towards personal expenses of the deceased, we MACA 1985/2005 -7- are satisfied, would be absolutely justified. 12. The learned counsel for the Insurer Sri George contends that going by the decision in **Sarla(supra)** , the multiplier should have been reckoned only at 15 and not 16 as done by the Tribunal. It is clear from the tabular column appended to para.40 of **Sarla (supra)** against column 4 that a person aged 36 to 40 years, 15 is the appropriate multiplier following the dictum **U.P.SRTC. v. Trilok Chandra (1996) 4 S.C.C. 362)** as clarified in the decision in **New India Assurance Co.Ltd. v. Charlie, (2005)10 S.C.C. 720).** We accept the same and agree with the counsel for the respondent that only 15 should have been reckoned as the multiplier. So reckoned, the proper amount of compensation to be awarded under the head of loss of dependency is Rs.2,70,000 **/** -( 2000 x 12 x ¾ x 15). 13. On the basis of the above discussions, we find that the claimants are entitled to a further amount of Rs. MACA 1985/2005 -8- 1,27,500/- (Rupees one lakh twenty seven thousand and five hundred only) as per the details shown below in addition to the amounts awarded by the Tribunal. Loss of consortium :Rs.10,000 – 5,000 = 5,000/Love and affection 5,000/Pain and suffering :Rs.7500 - 5000 = 2,500/Loss of estate : 5,000/Loss of dependency :Rs.2,70,000 –1,60,000= 1,10,000/-----------------------Total Rs. 1,27,500/============ 14. The total amount claimed by the claimants is only Rs.3 lakhs. We are in these circumstances satisfied that the very modest and reasonable claim staked by the claimants must have been awarded in full by the Tribunal. 15. It is contended by the counsel that interest has been awarded only at the rate of 6% per annum. Following the dictum in **Dharamapal v. U.P.S.R.T.C. (2008(2) KLT** MACA 1985/2005 -9- **691)** 7.5% must have been awarded as interest, it is contended. We find the said contention to be reasonable. We are satisfied that the appellants are entitled to interest at the rate of 7.5% per annum. ## 16. In the result: ## a) this appeal is allowed. b) The amount awarded is modified and it is directed that the respondent shall pay to the appellants an amount of Rs.3 lakhs as claimed along with interest at the rate of 7.5% per annum from the date of petition till realisation. Cost as awarded by the Tribunal shall also be paid. Needless to say, due credit shall be given to amounts, if any paid already. ## **R. BASANT, JUDGE** ## **M.C. HARI RANI,JUDGE** ## **ks**