T. V. Sindhu and Aswathy A.S. (minor) and Anjali A.S. (minor) v. Manoharan, Ravichandran, Oriental Insurance Company Ltd., Lakshmikutty Amma

## **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 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **MACA.No. 511 of 2012** **------------------------** ## **AGAINST THE AWARD IN O.P.(MV)NO.1842/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR, DATED 22-11-2011** ## **APPELLANT(S)/PETITIONERS:** **------------------------------------------** **1. T.V.SINDHU,** - **W/O.LATE ANIL KUMAR** **2. ASWATHUY.A.S.(MINOR), D/O.LATE ANIL KUMAR** **3. ANJALI.A.S.(MINOR) D/O.LATE ANIL KUMAR,** - **(MINOR APPELLANTS 2 AND 3 REPRESENTED BY THEIR GUARDIAN MOTHER THE 1ST RESPONDENT HEREIN). ALL ARE RESIDING AT 1/661, 'SREYAS', ASHRAM LANE, POONKUNNAM, THRISSUR-680 002.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENT(S):** - **------------------------** **1. MANOHARAN, RESIDING AT HAFNO BUILDING, MARATHU ROAD, PALAKKAD-678 007.** **2. RAVICHANDRAN, S/O.PAZHANIMALA, RESIDING AT PEZHODE HOUSE, MALAYAMPARAMBU, VENGANNOOR P.O., ALATHUR, PALAKKAD DISTRICT-678 541.** **3. THE ORIENTAL INSURANCE COMPANY LTD., PATTAMBI-679 303.** **4. LAKSHMIKUTTY AMMA, W/O.LATE RAJENDRAN NAIR, RESIDING AT KALATHIL HOUSE, OPP.CANARA BANK, P.O.NENMARA, PALAKKAD-678 508.** ## **R3 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 3006-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Bb** ## **C.T.RAVIKUMAR** ## **&** ## **ANIL K.NARENDRAN, JJ.** **============================== M.A.C.A.No.511 of 2012 ============================== Dated this, the 30[th] day of June, 2017.** ## **J U D G M E N T** ## C.T.RAVIKUMAR, J. The appellants are three of the legal heirs of the victim of a motor vehicle accident involving a motor cycle bearing registration No.KL-07/S-5283 and a bus bearing registration No.KL-9/N-9850. They are respectively the widow and minor daughters of the deceased. The 4[th] respondent who is the mother of the deceased is the other surviving legal representative entitled to compensation. The victim of the accident Sri.Anil Kumar was taken to a hospital at Alathur on sustaining severe injuries and he breathed his last while undergoing treatment there. In the said circumstances, the appellants filed O.P.(M.V) No.1842/2005 under Section 166 of the Motor Vehicles Act claiming a total compensation of Rs.12,00,000/-. No oral evidence was adduced by both sides before the M.A.C.A.No.511 of 2012 : 2 : Tribunal and the documentary evidence on the side of the appellants consisted of Exts.A1 to A11. No documentary evidence was adduced by the respondents. As per the impugned award, the Tribunal granted a total compensation of Rs.4,61,000/- with interest at the rate of 8% per annum from the date of petition till realisation. It is contending that they were denied just compensation that this appeal has been preferred seeking enhancement for the quantum of compensation. 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the 3[rd] respondent Insurance Company. 3. It is submitted by both sides that there is absolutely no dispute regarding the accident, cause of the accident viz., the negligence on the part of the 2[nd] respondent, the driver of the bus involved in the accident and also the liability of the 3[rd] respondent to indemnify the insured owner of the said vehicle viz., the 1[st] respondent. Hence, the sole question to be considered is whether or not the appellants are entitled to get M.A.C.A.No.511 of 2012 : 3 : enhancement of compensation and if so, to what extent? 4. The accident occurred on 18.5.2005, the victim was then aged 38 years. In the claim petition, it was averred that he was working as a commission agent of stationary articles and wheat flour and was also holding Diploma in Automobiles. It was further claimed that he was earning a monthly income of Rs.9,000/-. However, the fact is that the appellants had not adduced any evidence to establish the averments regarding occupation and income of the deceased. In such circumstances, the Tribunal fixed the monthly income notionally. We do not find any reason to hold that the Tribunal went wrong in fixing the monthly income notionally in the said circumstances. At the same time, it is to be noted that the Tribunal had fixed the monthly income of the deceased only as Rs.3,000/-. We are of the considered view that it is nothing but an erroneous estimation. The accident had occurred in the year 2005 and the deceased was then aged only 38 years. Those factors as also the decision of the Apex Court in **Ramchandrappa Vs. The** M.A.C.A.No.511 of 2012 : 4 : **Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** persuade us to re-fix the monthly income for calculation purpose. We also find that the deceased had been maintaining a family consisting of five members including himself. In such circumstances, we are of the view that it is only proper to fix a monthly income as Rs.4,500/-. True that there is no evidence to show that he was either a salaried person or a person having a fixed income. Even if it is taken that he was only a manual worker, the factors that persuaded the Hon'ble Apex Court to mandate for making addition, like rising of price index and cost of living, etc., would be having telling effect and impact on his life, had he been alive. He would have been compelled to demand higher amount for his service to cope up with such demanding situations. Taking into account all such aspects, we are of the view that reckoning future prospects, an addition of 30% has to be made to the income of the deceased, for calculation purpose. Admittedly, there are four surviving dependent family members to the deceased. In the light M.A.C.A.No.511 of 2012 : 5 : of the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation,** reported in **[2010 (2) KLT 802 (SC)],** 1/4[th] of the income of the deceased has to be deducted towards personal and living expenses of the deceased. After effecting addition and deduction referring the aforesaid factors, the monthly income for calculation purpose has to be taken as Rs.4,388/-. The multiplier has been correctly applied by the Tribunal with reference to the age of the deceased. Hence, the compensation for 'loss of dependency' has to be reassessed only by substituting the re-fixed monthly income. On such re-assessment, the amount payable to the appellants as compensation for loss of dependency will be Rs.7,89,840/-(4388x12x15). The Tribunal has already granted Rs.4,05,000/- under that head. After deducting the said amount, the appellants and the 4[th] respondent are entitled to get a total additional compensation of **Rs.3,84,840** /-. The Tribunal granted only an amount of Rs.20,000/- towards 'loss of consortium'. The first appellant, the widow of the M.A.C.A.No.511 of 2012 : 6 : deceased was aged only 30 years at the time of death of her husband. The accident occurred in the year 2005. Taking into account all such aspects, we are inclined to fix the compensation for 'loss of consortium' payable to the first appellant as Rs.1,00,000/-. After deducting the amount granted by the Tribunal, the first appellant is entitled to get **Rs.80,000** /- under that head. Towards 'loss of love and affection', the Tribunal granted Rs.25,000/-. The appellants 2 and 3 were aged only 9 years and 2 years at the time of death of their father. Taking note of the fact that the minor daughters were aged only 9 years and 2 years at the time of death of their father and the 4[th] respondent mother was aged 62 years, we are inclined to fix the amount payable under the head 'loss of love and affection' as Rs.1,00,000/-. The appellants 2 and 3 and the 4[th] respondent are entitled to get the amount of compensation towards 'loss of love and affection'. After deducting the amount already granted by the Tribunal viz., Rs.25,000/-, the appellants 2 and 3 are entitled to get **Rs.30,000/-** each and the 4[th] M.A.C.A.No.511 of 2012 : 7 : respondent is entitled to get **Rs.15,000** /- additionally under the said head. It is made clear that the first appellant alone would be entitled to get the additional compensation granted under the head 'loss of consortium' and only the appellants 2 and 3 and the 4[th] respondent are entitled to get the additional compensation granted under the head 'loss of love and affection'. Towards 'loss of estate', no amount was granted by the Tribunal, we are inclined to grant a conventional amount of **Rs.10,000/-** under that head. Towards 'funeral expenses', only Rs.3,000/- was granted by the Tribunal, we are inclined to grant **Rs.12,000/-** more under that head. In the result, this appeal is allowed. A total additional compensation of **Rs.5,61,840/-** (3,84,840 +80,000+30,000+30,000+15,000+10,000+12,000) is granted. The said amount of additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to deposit the additional compensation along with interest thereon, within a period of 2 months from the date of M.A.C.A.No.511 of 2012 : 8 : receipt of a certified copy of this judgment. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE.** Sd/- **ANIL K.NARENDRAN, JUDGE.** Bb/03/07/2017 _[True copy]_ _P.A to Judge_