Susamma @ Aleyamma and Jobin v. Shajahan, Subramaniyan and The Branch Manager, National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** ## **WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938** ## **MACA.No. 602 of 2012 ()** ## **-----------------------AGAINST THE AWARD IN OPMV 666/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 29.12.2011** ## **APPELLANTS/PETITIONERS:** **-----------------------------------** ## **1. SUSAMMA** **@ ALEYAMMA, W/O.LATE JOMON, AGED 30 YEARS, MANAKKUNNIL HOUSE, KUZHUVELIPURAM, AZHIYIDATHUCHIRA P.O., KAVUMBHAGOM VILLAGE, THIRUVALLA, PATHANAMTHITTA.** ## **2. JOBIN** **S/O.LATE JOMON, AGED 10 YEARS MINOR REPRESENTED BY SUSAMMA @ ALEYAMMA, W/O.LATE JOMON, AGED 30 YEARS, MANAKKUNNIL HOUSE, KUZHUVELIPURAM, AZHIYIDATHUCHIRA P.O., KAVUMBHAGOM VILLAGE, THIRUVALLA, PATHANAMTHITTA.** ## **BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)** ## **RESPONDENT(S)/RESPONDENTS:** **--------------** ## **1. SHAJAHAN** **S/O.HASSAN MUHAMMED, NO.8, MIDDLE STREET, MAIN ROAD, OPPOSITE TO RICE MILL GUDALLOOR VILLAGE, UTHMAPALAYAM TALUK, THENI DISTRICT, TAMILNADU.623 003** ## **2. SUBRAMANIYAN** **VI/201, MALAMPUZHA, PALAKKAD, KERALA STATE.678 001** ## **3. THE BRANCH MANAGER** **NATIONAL INSURANCE COMPANY LTD., 157, KARAMADI ROAD, RVR BUILDING, METTUPALAYAM, 641 301.** **R3 BY ADV. SRI.P.JAYASANKAR R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.602 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of November, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The legal heirs of one Mr. Jomon who were the applicants in O.P.(M.V.)No.666/2002 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta preferred this appeal on being aggrieved by the quantum of compensation granted as per the award thereunder. They filed the said claim petition seeking compensation of Rs.10 lakhs for the death of the said Jomon under Section 166 of the Motor Vehicles Act. As per the impugned award the Tribunal granted Rs.4,55,000/- with interest at the rate of 7.5% per annum from the date of petition till realization with a cost of Rs.9,500/-. It is seeking enhancement of the said compensation that the above appeal has been preferred. 2. We have heard the learned counsel appearing for the appellant and also the learned counsel appearing for the third respondent Insurance Company. Since the accident, M.A.C.A.No.602 of 2012 2 the cause of the accident as also the liability to indemnify the insured owner the offending vehicle are not in dispute it is absolutely unnecessary to issue notice to respondents 1 & 2. Hence issuance of notice to respondents 1 & 2 is dispensed with. As the sole question to be decided in this appeal is regarding the entitlement of the appellants to get enhanced compensation we are proceeding to consider the said question at the admission stage itself. 3. The main grievance of the appellants is that disregarding the averments in the claim petition that the deceased was a Chief cook in a hotel and was earning Rs.9,000/- per month the Tribunal fixed the monthly income notionally only at Rs.3,000/-. It is the further contention that the compensation granted under the heads loss of love and affection, loss of consortium are on the lower side. It is also submitted that the amount granted towards funeral expenses is also inadequate. That apart it is contended that no amount whatsoever was granted towards pain and suffering. 3 M.A.C.A.No.602 of 2012 4. The learned counsel appearing for the third respondent insurance company submitted that the tribunal cannot be found fault with in fixing the monthly income notionally since the appellants had failed to adduce evidence regarding the averments taken up in the claim petition regarding the occupation and income of the deceased. It is further contended that taking note of the fact that the accident occurred in the year 2001 the fixation of the monthly income notionally at Rs.3,000/- also cannot be said to be too low, warranting an interference. In short, according to the learned counsel for the third respondent, the tribunal has granted just compensation and therefore no appellate interference is called for. 5. True that in the claim petition the appellants have taken up a contention that the deceased was working as a Chief Cook in a hotel and was he was earning a monthly income of Rs.9,000/-. But at the same time it is to be noted that no evidence was let in by the appellants to establish the said contentions. Even the name of the hotel in which he M.A.C.A.No.602 of 2012 4 was allegedly working as chief cook was also not mentioned in the claim petition and no evidence in that regard was also let in by the appellants. Taking into account the failure on the part of the appellants to let in evidence in that regard, we do not find any reason to hold that the tribunal went wrong in fixing the monthly income notionally. While considering the question whether the fixation of the monthly income notionally at Rs.3,000/- warrants interference, we are of the view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has to be looked into. In that case for calculation purpose in respect of a coolie who suffered injuries in a motor vehicle accident in the year 2004 the Hon'ble Apex Court took monthly income as Rs.4,500/-. The accident in question involved about three years prior to the accident involved in Ramachandrappa's case. In such circumstances, the fixation of monthly income notionally at Rs.3,000/- cannot be said to be too low warranting an M.A.C.A.No.602 of 2012 5 interference. But then the fact that the deceased was aged only 24 years at the time of the accident has to be taken into account to consider whether the tribunal failed in not making any addition to the income fixed reckoning the future prospects. As noticed hereinbefore the appellants had failed to adduce any evidence to establish what exactly was the occupation of the deceased. In such circumstances, though he was aged only 24 years, we are of the view that the appellants cannot claim that 50% of the income fixed ought to have been added to the monthly income for calculation purpose. However we are inclined to make an addition of 30% of the income. In that view of the matter the monthly income has to be taken as Rs.3900/- for calculation purpose. The tribunal applied 17 as the multiplier. In view of the fact that the deceased was aged only 24 years in the light of the schedule given in the decision in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** the multiplier applicable with reference to the age of the deceased is 18. Taking note of M.A.C.A.No.602 of 2012 6 the fact that the there are two dependants 1/3[rd] of the income has to be deducted towards personal expenses. In such circumstances a reassessment of the compensation payable towards loss of dependency is required. On such reassessment an amount of Rs.5,61,600/- [3900 x12x18x 2/3] is payable. But the tribunal has granted only an amount of Rs.4,08,000/- under that head and hence after deducting the said amount the appellants would be entitled to get an additional compensation of Rs.1,53,600/- under that head. It is granted. Towards loss of love and affection and loss of consortium the tribunal granted Rs.10,000/- each. In the light of the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** , we are of the view that the first appellant is entitled to get Rs.90,000/additionally under the head loss of consortium and the second appellant is entitled to get an additional compensation of Rs.40,000/- under the head loss of love and affection, the said amounts are granted. Towards funeral expenses only an amount of Rs.10,000/- was granted. In the M.A.C.A.No.602 of 2012 7 light of the decision in Rajesh's case a minimum of Rs.25,000/- shall be granted towards funeral expenses in the absence of evidence of higher expenses. In the absence of any evidence of higher expenses incurred by the appellants, we are inclined to grant Rs.15,000/- additionally under that head. No amount was granted by the tribunal towards pain and suffering. True that the Jomon succumbed to the injuries enrouted to the hospital i.e. on 5.12.2001 itself. Even then it cannot be said that he had not endured any pain owing to the injuries sustained. We are inclined to grant Rs.10,000/- towards pain and suffering. 6. In the light of the assessment/enhancement made as above, the appellants are entitled to get a total compensation of Rs.3,08,600/- (Rupees three lakhs eight thousand six hundred only). It is granted. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurer is directed to deposit the said amount along with interest within a period of two months from the M.A.C.A.No.602 of 2012 8 date of receipt of a copy of this judgment. 7. It is made clear that the first appellant alone will be entitled to get the additional compensation granted under the head loss of consortium and the second appellant alone is entitled to get the additional compensation granted under the head loss of love and affection. With respect to the apportionment of the compensation among the appellants, we maintain the apportionment made by the tribunal. There will be no order as to costs. Sd/- ## **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/