Susamma Thomas, Anil Thomas, Varghese P. Thomas v. I. Shajikumaar, Mohan Pillai and 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 WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 MACA.No. 3099 of 2008() ----------------------OPMV.1185/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): PETITIONER ------------------------ 1. SUSAMMA THOMAS, AGED 54 YEARS, VAZHAPPILLETH HOUSE,KERALAPURAM, PERUMPUZHA P.O. KOLLAM. 2. ANIL THOMAS, AGED 30 YEARS, -DO- 3. VARGHESE P.THOMAS, AGED 22 YEARS,-DO- - BY ADV. SRI.VIJU THOMAS SMT.M.MEENA JOHN RESPONDENT(S): RESPONDENTS -------------------------- 1. I.SHAJIKUMAR, S/O.LALITHAMMA THANKACHAN, L.R.BHAVAN, (TC.61/2538) KUNNIKKODE, KOAHGANNUR, THIRUVANANTHAPURAM. 2. MOHAN PILLAI, S/O. GOPALAKRISHNA PILLAI, MELEVILA PUTHEN VEEDU, KOTTANKARA CHERRY, CHANDANATHOPPE P.O. 3. THE MANGER, UNITED INDIA INSURANCE & CO. LTD.,KOLLAM. ADV. SRI.C.RAJENDRAN FOR R2 - SRI. JOHN JOSEPH VETTIKKATTU FOR R3 (B/0) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No.3099 of 2008** **------------------------------------------------Dated this the 28[th] day of September, 2011** ## **JUDGMENT** ## **Basant,J.** The claimants are the appellants. They are the mother and siblings of a deceased person who had suffered injuries in a motor accident which took place on 10/9/2000. He underwent treatment and succumbed to those injuries on 12/9/2000. Against a total claim limited to `8,00,000/-, the Tribunal awarded a total amount of `1,41,700/- as per the details given below: |**Sl. No.**|**Name of the head**|**Amount awarded**| |---|---|---| |1|Loss of dependency|Rs.1,15,200.00| |2|Transportation|Rs.1,000.00| |3|Damage to scooter|Rejected| |4|Damage to clothing|Rs.500.00| |5|Medical expenses|Rejected| |6|Funeral expenses|Rs.5,000.00| |7|Pain and suffering, loss of dependency, loss of<br>love and affection|....| |8|Loss of estate|Rs.10,000.00| |9|Pain and suffering|Rs.10,000.00| |Total||**Rs.1,41,700.00**| ## 2. Arguments have been advanced by the learned counsel for the appellants, the learned counsel for the insurance company ## **M.A.C.A. No.3099 of 2008** -: 2 :- and the learned counsel for the 2[nd] respondent/owner. The award is challenged on the sole plank of quantum of compensation. 3. Called upon to explain and be specific, the learned counsel for the appellants submits that the claimants were father aged 58 years and mother aged 54 years of the deceased. His two siblings had also joined their parents as claimants. The deceased was aged 26 years. He was a bachelor. He had the basic qualification of graduation. He had undergone some certificate course in Engineering. He is described as a 'Novell Engineer'. Exts,A7 and A8 are documents evidencing such qualification of his. It was claimed that he was employed and was earning an income of `15,000/- per mensem. He underwent treatment for a period of two days before he succumbed to the injuries. The father of the deceased is no more and the mother along with the two siblings is prosecuting this appeal. Both siblings are adult major brothers of the deceased. We are, in these circumstances, satisfied that the first appellant i.e., the second claimant/mother is the only person entitled to claim compensation. 4. The learned counsel for the appellants, first of all, contends that the Tribunal erred grossly in reckoning the monthly ## **M.A.C.A. No.3099 of 2008** -: 3 :- income of the deceased as `1,800/-. Considering the qualifications and the employment of the deceased, the Tribunal ought to have accepted the assertions of the claimants that the deceased was earning an income of `15,000/- per mensem from his employment as a Novell Engineer with M/s Zenith Computers, contends counsel. Not a scrap of paper is produced to show that he had such employment or income. Be that as it may, we are satisfied that even in the absence of any better evidence from the available inputs, reasonable inferences can be drawn about the probable monthly earnings of the deceased. That he was a graduate is revealed. Even in the absence of any better evidence, we are satisfied that the monthly income of such a person in the year 2000 can safely be assumed to be `3,000/- per mensem. The claimants can blame only themselves for not making better data available before court. But even in the absence of any better evidence, such inference of prudence can safely be drawn by the court. In drawing this presumption of prudence, we draw inspiration from Clause (6) of the II Schedule as also the decisions of the Supreme Court in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi v. Mohammad Tabbar** (2008 ACJ 1488). ## **M.A.C.A. No.3099 of 2008** -: 4 :- 5. The learned counsel for the appellants next contends that the Tribunal had erred grossly in reckoning '8' as the multiplier. The first appellant/2[nd] claimant/mother is shown to be aged 54 years. Going by the decision in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the multiplier to such a dependent claimant is '11'. We are of opinion that the same can safely be accepted. 6. The learned counsel for the insurance company promptly points out that following **Sarla Verma** (supra) one half of the monthly earnings deserves to be set apart for the personal earnings of the deceased - a bachelor. We accept that contention. Appropriate amount can hence be awarded under the head of loss of dependency by adopting the multipliermultiplicand method. 7. The learned counsel for the appellants next contends that no compensation has been awarded under the head of loss of love and affection. The deceased had left behind his father and mother. They, parents, are certainly entitled for compensation under the head of loss of love, affection and support. An appropriate amount can be awarded under this head. ## **M.A.C.A. No.3099 of 2008** -: 5 :- 8. Though amounts were claimed for medical and miscellaneous expenses, no amount has been awarded. We have satisfactory indications to suggest that the deceased had undergone treatment for a period of two days before he succumbed to his injuries. The inability of the claimants to produce bills and vouchers notwithstanding, we are satisfied that reasonable inferences can be drawn and an appropriate amount can be awarded as compensation for such medical expenses which must inevitably have been incurred. We fix `5,000/- as the amount payable. 9. We are not persuaded to agree that the challenge raised under any other head deserves acceptance. 10. The above discussions lead us to the conclusion that the 1[st] appellant is entitled to a further amount of `97,800/(Rupees ninety seven thousand and eight hundred only) in addition to the amount already awarded by the Tribunal as shown below: |1.|Loss of love and affection||| |---|---|---|---| ||(no amount awarded by the||| ||Tribunal)|-|`10,000/-| |2.|Medical expenses||| ||(no amount awarded by the||| ||Tribunal)|-|` 5,000/-| ## **M.A.C.A. No.3099 of 2008** -: 6 :- 3. Loss of dependency (`3,000/- x 12 x 11 x ½ = - 1,98,000/- minus `1,15,200/-) `82,800/-------------Total `97,800/====== 11. The learned counsel for the appellants submits and we accept that interest awarded at the rate of 6% per annum is too low. We are satisfied that interest deserves to be awarded at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. We are further satisfied that the proportionate cost at the rates specified in the decision in **Jeena v. Satheesh Babu** (2011 (3) KLT 943) also deserves to be granted. ## 12. In the result: ## (a) This appeal is allowed in part. (b) The first appellant is found entitled to a further amount of `97,800/- (Rupees ninety seven thousand and eight hundred only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. - (d) We further direct that the 1[st] appellant shall be entitled to ## **M.A.C.A. No.3099 of 2008** -: 7 :- proportionate cost before the Tribunal. - (e) All other directions of the Tribunal are upheld. ## **Nan/** Sd/- **R. BASANT (Judge) Sd/M.C. HARI RANI (Judge) //true copy// P.S. to Judge**