Sunitha and Others v. Beena Guruvayurappan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 8TH DAY OF JUNE 2016/18TH JYAISHTA, 1938** **MACA.No.1041 of 2016 ()** **------------------------AGAINST THE AWARD IN OPMV 137/2013 of I ADDL. MACT, PALAKKAD, DATED 08-10-2015** **APPELLANT(S)/PETITIONER: -----------------------** ## **1. SUNITHA,** - **W/O.SURESH, AGED 31 YEARS, RESIDING AT MALAKKADU VEEDU, NATTUKAL P.O., KOZHINJAMPARA GRAMA PANCHAYATH, CHITTUR, PALAKKAD DISTRICT, KERALA - 678 554.** ## **2. SANUSH (MINOR)** - **W/O.LATE SURESH, AGED 3 YEARS, REPRESENTED BY HIS MOTHER AND NEXT FRIEND SUNITHA, AGED 31 YEARS, W/O.SURESH, RESIDING AT MALAKKADU VEEDU, NATTUKAL P.O., KOZHINJAMPARA GRAMA PANCHAYATH, CHITTUR, PALAKKAD DISTRICT, KERLAA - 678 554.** **3. AMMUKUTI, W/O.GOPALAN, AGED 73 YEARS, RESIDING AT MALAKKADU VEEDU, NATTUKAL P.O., KOZHINJAMPARA GRAMA PANCHAYATH, CHITTUR, PALAKKAD DISTRICT, KERALA - 678 554.** **4. GOPALAN, S/O.VELAN, AGED 75 YEARS, RESIDING AT MALAKKADU VEEDU, NATTUKAL P.O., KOZHINJAMPARA GRAMA PANCHAYATH, CHITTUR, PALAKKAD DISTRICT, KERALA - 678 554.** ## **BY ADV. SRI.BINOY VASUDEVAN** _**:2:**_ _**MACA.No. 1041 of 2016**_ ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. BEENA GURUVAYURAPPAN,** **AGE NOT KNOWN, W/O.GURUVAYURAPPAN, PONNAMMA BUILDING, RAILWAY COLONY, PALAKKAD DISTRICT, KERALA - 678 014.** ## **2. SENTIL KUMAR,** - **S/O.NATARAJAN, AGED 37 YEARS, KOARTHU VEEDU, ATTALAMPARA, THEANARI, ELAPPULLY P.O., PALAKKAD DISTRICT, KERALA - 678 622.** ## **3. CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD.,** - **2ND FLOOR, CITY ARCADE COMPLEX, GURUVAYUR ROAD, POONTHOLE P.O., THRISSUR DISTRICT, KERALA - 680 004.** **R3 BY ADVS. SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ----------------------------------------------------- **M.A.C.A. No.1041 of 2016** ------------------------------------------------- Dated this the 8[th] day of June, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimants in O.P.(M.V.)No.137/2013 on the file of the Additional Motor Accidents Claims Tribunal, Palakkad are the appellants herein. The appellants who are the wife, son and parents of the deceased Suresh filed the application for compensation for the death of their bread winner who died in a motor accident occurred on 8.7.2012. According to the claimants, the deceased was travelling in a motor cycle on 8.7.2012 at about 7.00 p.m. along Palakkad-Kozhinjampara public road and when he reached the place of occurrence, the bus with No.KL-09/AA/6731 driven by the second respondent, owned by the first respondent and insured with the third respondent came in a negligent manner at high speed and hit against the motor cycle driven by the deceased. The accident occurred due to the negligent driving of the bus by the second respondent. So the respondents 1 to 3 are jointly and severally liable to pay the compensation. The deceased was aged 29 years, a building construction worker getting Rs.9,000/- per month. They claimed a total compensation of Rs.15,00,000/- on various heads. _**M.A.C.A. No.1041 of 2016**_ 2 2. Respondent 1 and 2 remained absent. 3. Third respondent entered appearance and filed written statement admitting the insurance of the bus involved in the accident, but disputed the fact that the accident occurred due to the negligent driving of the bus by the second respondent. According to them, the deceased himself was responsible for the accident. They denied the age, income, occupation of the deceased and dependancy of the claimants mentioned in the petition. According to them, the total compensation claimed is exorbitant and they prayed for dismissal of the application. 4. No oral evidence was adduced on either side. Exts.A1 to A8 were marked on the side of the claimants. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the bus by the second respondent and awarded a total compensation of Rs.11,91,000/- on various heads as follows. |**_Heads_**|**_Amount_**| |---|---| |Transportation expenses|₹5,000/-| |Loss of dependancy|₹9,36,000/-| |Loss of love and affection|₹1,00,000/-| |Loss of consortium|₹1,00,000/-| |Loss of support to the petitioners 3 and 4|₹20,000/-| |Loss of estate|₹5,000/-| |Funeral expenses|₹25,000/-| |Total|₹11,91,000/-| The tribunal also held that respondents 1 to 3 are jointly and severally liable to pay the compensation and directed the third respondent _**M.A.C.A. No.1041 of 2016**_ 3 insurance company to pay the amount. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellants, claimants before the tribunal. 5. Heard Sri.Binoy Vasudevan, counsel appearing for the appellant and Sri.Mathew Jacob, senior counsel appearing for the third respondent and notice to the respondents 1 and 2 is dispensed with as the liability to indemnify the insured has not been disputed by the third respondent insurance company. 6. The counsel for the appellant submitted that Exts.A5 and A6 series documents produced by the claimants will go to show that he was a registered construction worker and as such the tribunal was not justified in taking his monthly income as Rs.5,000/-, especially when the accident occurred in the year 2012. Further the tribunal had taken only 30% future prospects, which is not correct as he being a person falling within the age group up to 40 years, 50% ought to have been added for future prospects. Further no amount was awarded under the head pain and suffering suffered by the deceased. According to him, the amount awarded under the head loss of love and affection and other heads are also on the lower side. According to the learned counsel the appellants are entitled to get enhancement on all heads. 7. On the other hand, the learned counsel for the insurance company submitted that he is not having any permanent income and _**M.A.C.A. No.1041 of 2016**_ 4 there is no question of adding any further amount towards future prospects arises. The tribunal has taken all the aspects and awarded just and reasonable compensation and no interference is called for. 8. The case of the claimants in the claim petition was that, deceased Suresh was aged 29 years and a building construction worker and getting Rs.9,000/- per month. It is true that they have produced Exts.A5 and A6 to show that he was registered as a worker under the Kerala Building and Other Construction Workers Welfare Board and he was a member under the scheme. But that will not show the actual income derived by him by doing his occupation as construction worker. But at the same time, the courts will have to take the reality in life in fixing the monthly income of a person who may not be able to produce the evidence to prove his actual income. The accident in this case occurred in the year 2012. Even in the year 1994 when the second schedule was incorporated for awarding compensation under section 163(A) of the Motor Vehicles Act, the legislature has taken Rs.15,000/- per annum as the income for a nonearning member. That was not revised so far, though it was intended to be revised from time to time. So considering these aspects, the amount of Rs.5,000/- fixed by the tribunal appears to be on the lower side and we feel it appropriate to re-fix the monthly income of the deceased as Rs.6,000/- per month as a construction worker will be _**M.A.C.A. No.1041 of 2016**_ 5 getting an average income of Rs.300/- per day and he will be getting 20 days work in a month. Further in the decision reported in _**Rajesh**_ _**v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Supreme Court has held that future prospects will be have to be taken into consideration for the purpose of assessing compensation under the head loss of dependancy even in cases where the deceased is not having permanent income and employed under private persons or concerns. 9. Further in the same decision it has been held that for the age group up to 40 years, 50% will have to be taken for future prospects and up to the age of 50 years, 30% and up to 60 years 15%. Ext.A5 will go to show that the date of birth of the deceased was on 28.5.1980. So he will be 32 years at the time of accident. So instead of 30%, 50% will have to be added for his future prospects for assessing compensation. Taking 16 as multiplier and deduction of 1/4[th] for his personal expenses is also justified in view of the dictum laid down in the decision reported in _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121). If a recalculation is made on the above materials, the claimants will be entitled to get an amount of Rs.12,96,000/- (6,000x150% =9,000x 12x16x75%) instead of Rs.9,36,000/- awarded by the tribunal, thereby they will be entitled to get an additional amount of Rs.3,60,000/- under the head loss of dependancy. _**M.A.C.A. No.1041 of 2016**_ 6 10. The tribunal has not awarded any amount under the head pain and suffering suffered by the deceased which the claimants are entitled to get. Normally some conventional amount will be awarded under that head. Since he died on the way to hospital, we award an amount of Rs.15,000/- under the head pain and suffering suffered by the deceased. The tribunal has awarded Rs.1,00,000/- under the head loss of consortium to the first claimant and Rs.1,00,000/- for love and affection for the second claimant and Rs.20,000/- to parents and Rs.25,000/- under the head funeral expenses and Rs.5,000/- for transport expenses etc. relying on the decision reported in _**Amrit Bhanu Shali and Others v. National Insurance Company Ltd., and Others**_ (2012(11) SCC 738). On all other heads the tribunal has awarded just and proper compensation. We are not inclined to enhance any amount under other heads. So in all, the appellants will be entitled to get an additional compensation of Rs.3,75,000/-, over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. The additional compensation can be shared between claimants 1 and 2 alone as adequate compensation has been provided by the court below to the parents, considering their age, nature and extent of dependancy. Additional compensation awarded shall be shared between claimants 1 and 2 equally. The _**M.A.C.A. No.1041 of 2016**_ 7 amount due to the second respondent shall be deposited in a nationalized bank till he attains majority, with liberty for the first claimant, the mother to withdraw interest for his maintenance and upbringing. Out of the amount due to the share of the first claimant, wife of the deceased, half of that amount be released to her and the balance amount shall be deposited in a nationalised bank in her name for a period of three years with liberty for her to withdraw the quarterly interest accrued and to apply for prematured release if necessity arises for the same. Three months time is granted to the insurance company to deposit this amount. Considering the circumstances, the parties are directed to bear their respective costs in the appeal. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **( P.N. Ravindran, Judge)** _Sd/-_ **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss