The Oriental Insurance Co. Ltd. v. Muthulakshmi and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938 MACA.No. 3000 of 2009 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.533/2006 of M.A.C.T, VADAKARA DATED 29-07-2009 APPELLANT/3RD RESPONDENT: ---------------------------------- THE ORIENTAL INSURANCE CO. LTD., THODUPUZHA, REPRESENTED BY ITS, ASSISTANT MANAGER, REGIONAL OFFICE,, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) ## RESPONDENTS/CLAIMANTS: ------------------------------ 1. MUTHULAKSHMI,W/O.MURUKAN RESIDING AT SANKAR OLD METAL MART, NEAR CHORODE GATE, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. MANOJ KUMAR, S/O.MURUKAN RESIDING AT SANKAR OLD METAL MART, NEAR CHORODE GATE, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 3. SATHEESH KUMAR, S/O.MURUKAN RESIDING AT SANKAR OLD METAL MART, NEAR CHORODE GATE, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. (MINOR, REPRESENTED BY MOTHER AND NEXT FRIEND MUTHULAKSHMI, IST RESPONDENT) 4. MUTHU, D/O.MADATHIL AMMAL ANNAMALAI PUTHUR, MELEMARUTHAPURAM POST, OOTHUMALAI (VIA), THIRUNELVELI DISTRICT, TAMIL NADU. 5. PATTUTHAI, D/O.MADATHI AMMAL ANNAMALAI PUTHUR, MELEMARUTHAPURAM POST, OOTHUMALAI (VIA), THIRUNELVELI DISTRICT, TAMIL NADU. MACA.No. 3000 of 2009 ( ) 2 6. TAMIL SELVI, D/O.MADATHI AMMAL ANNAMALAI PUTHUR, MELEMARUTHAPPURAM, OOTHUMALAI (VIA), THIRUNELVELI DISTRICT, TAMIL NADU. 7. KUTTIRAJAN, S/O.MADATHI AMMAL ANNAMALAI PUTHUR, MELEMARUTHAPURAM POST, OOTHUMALAI (VIA), THIRUNELVELI DISTRICT, TAMIL NADU. 8. CHELLACHAMI, S/O. MADATHI AMMAL ANNAMALAI PUTHUR, MELEMARUTHAPURAM POST, OOTHUMALAI (VIA), THIRUNELVELI DISTRICT, TAMIL NADU. 9. MUTHUPANDI, S/O.MADATHI AMMAL ANNAMALAI PUTHUR, MELEMARUTHAPURAM, POST, OOTHUMALAI (VIA), THIRUNELVELI DISTRICT, TAMIL NADU. 10. CHERMATHURAI, S/O.MADATHI AMMAL ANNAMALAI PUTHUR, MELEMARUTHAPURAM, POST OOTHUMALAI (VIA), THIRUNELVELI DISTRICT, TAMIL NADU. R1 TO R10 BY ADV. SRI.B.KRISHNAN R1 TO R10 BY ADV. SRI.R.PARTHASARATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.3000 of 2009 -------------------------------Dated 18[th] July, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal filed by the Oriental Insurance Co. Ltd. is directed against the judgment and award in O.P.(MV)No.533/2006 passed by the Motor Accidents Claims Tribunal, Vadakara. The appellant was the 3[rd] respondent therein. The claim petition was filed by respondents 1 to 3 who are the wife and children of deceased Murugan, under Section 166 of the Motor Vehicles Act seeking compensation of ₹30,00,000/-. The accident in which the said Murugan died occurred on 21.12.2005 at about 3.30 a.m. at Chorode. While crossing the road he was knocked down by the autorickshaw bearing Reg.No.18-B-5346 driven by the 2[nd] respondent before the Tribunal. The first respondent therein was its insured owner. Since there is no dispute regarding the liability to indemnify the first respondent therein, the appellant has not chosen to make those respondents as parties to this appeal. It was averred in the claim petition that the deceased Murugan was the proprietor of Sankar Old Metal Mart dealing in the trade of collection and sale of old metals and other articles as part of recycling industry M.A.C.A.No.3000/2009 2 and he was earning 20,000/- per month. During the pendency of the₹ claim petition, the fourth respondent therein, who is the mother of the deceased, died and thereupon, respondents 4 to 10 in the appeal who are her legal heirs were impleaded as supplementary respondents 5 to 11. The Tribunal considered the documentary evidence consisting of Exts.A1 to A6 on the side of the claimants, Ext.B1 on the side of the respondents and Exts.X1 and X2, the witness's exhibits besides the oral testimony of the first respondent herein as PW1 and passed the impugned award granting 22,07,340/- as compensation with interest₹ @ 7.5% per annum from the date of petition till realization along with a cost of 2,000/- .₹ 2. Though several grounds have been raised to mount challenge against the aforesaid judgment and award, at the time of hearing, the learned counsel for the appellant submitted that he is pressing into service only two grounds viz., challenge against the fixation of the monthly income and the multiplier by the Tribunal. It is the contention that the action on the part of the Tribunal in fixing the monthly income as 18,000/- based on Exts.X1 and X2 cannot be₹ sustained. It is contended that the deceased Murugan was not a tax payee and the claimants-respondents had no case that Murugan was licensed to do any business including the aforementioned business. In other words, nothing was produced by the respondents-claimants M.A.C.A.No.3000/2009 3 before the Tribunal to establish the occupation of deceased Murugan, it is contended. It is also contended that going by the evidence on record the deceased Murugan was aged 44 years on the date of the accident. A perusal of the impugned award would reveal that the Tribunal fixed the multiplier with reference to the age of the deceased and the age of the first respondent who is his widow. Consequently, the multiplier was adopted as `15' instead of `14', it is contended. Per contra, the learned counsel for the respondents contended that the Tribunal has correctly fixed the monthly income of the appellant as 18,000/- relying₹ on Exts.X1 and X2. It is further contended by the learned counsel as hereunder:- Exts.X1 and X2 would reveal that the deceased was conducting business in scrap iron which was described by PW1 as “പഴയ ഇര�മ� കചവട�” at Chorode. From the business in scrap materials he was earning about 20,000/- per month and the aforesaid documents₹ would reveal that he was daily making a deposit of 600/- towards the₹ chitty transactions involved in Ext.X2. Ext.X1 is a ledger extract of the bank account of the deceased maintained at Chorode Service Cooperative Bank Limited. Going by the same, the deceased Murugan opened the account on 1.4.2005 and closed on 7.11.2005. The Tribunal has granted only meagre amounts under the heads `loss of M.A.C.A.No.3000/2009 4 love and affection', `loss of consortium' and `funeral expenses'. In such circumstances, it is contended that an appellate interference is invited actually for enhancement of the quantum and at any rate, no interference is called for at the instance of the insurer of the offending vehicle involved in the accident, to scale down the quantum of compensation. 3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondents. 4. We are fully aware of the position that it is not the function of the Appellate Court to substitute its own figures of damages unless a case for interference in appeal is made out on well recognized grounds. The principles on which an appellate court reviews the assessment of damages, whether too high or too low, is not because the appellate court might have given rather more or rather less, but only if the Tribunal had omitted some relevant consideration or admitted some irrelevant consideration or if the amount awarded is so excessive or insufficient so as to make the assessment so perverse and plainly unreasonable. 5. Firstly, we will consider the question whether the multiplicand and the multiplier were wrongly fixed by the Tribunal as contended by the appellant. As noticed hereinbefore, a scanning of the M.A.C.A.No.3000/2009 5 impugned award would reveal that the Tribunal fixed the multiplier applicable in this case, virtually, taking into account the average age of the deceased and the first respondent who is the widow of the deceased. In the contextual situation, it is relevant to refer to the decision of the Hon'ble Apex Court in **Sarla Verma** v. **Delhi Transport Corporation (2010 (2) KLT 802 (SC))** . In the light of the said decision which got affirmance by the decision in **Munna Lal Jain** v. **Vipin Kumar Sharma ((2015) 6 SCC 347),** in a petition under Section 166 of the Motor Vehicles Act, the multiplier has to be adopted with reference to the age of the deceased for the purpose of computing compensation payable under the head `loss of dependency'. In this case, the deceased was aged 44 years on the date of the accident. In the said circumstances, the multiplier to be adopted is one belonging to the age group 40 - 45 years viz.,`14', going by the schedule given in the decision in **Sarla Verma's** case (supra). 6. Now, the next question to be decided is whether the fixation of the monthly income by the Tribunal as 18,000/- invites₹ interference? Indisputably, the foundation for fixation of the monthly income as 18,000/- is Exts.X1 and X2. Ext.X1 is the ledger extract of₹ a bank account of the deceased Murugan maintained at Chorode Service Co-operative Bank Limited. It would reveal that he maintained the same only for a period which is less than seven months and it was M.A.C.A.No.3000/2009 6 closed on 7.11.2005. It would reveal that he was making a daily deposit of 100/- in that account. Ext.X2 virtually, pertains to two₹ chitty transactions. Daily installment to be paid in one of the said chitties was 200/- and in respect of the other it was 400/-. A close₹ ₹ scrutiny of the same would reveal that as against the chitty for which the instalment was 200/- the deceased was effecting daily payments₹ from 14.7.2004 and in respect of other one for which the installment amount was 400/- he started effecting payments from 13.7.2005. As₹ noticed hereinbefore, the accident occurred on 21.12.2005. The question is merely because the deceased Murugan had been paying ₹400/- from 13.7.2005 towards the latter chitty and 200/- per day₹ from 14.7.2004 towards the former chitty whether the Tribunal is justified in fixing the monthly income at 18,000/-? As noticed₹ hereinbefore, Ext.X1 only would reveal that he had been effecting a deposit of 100/- per day for about seven months and the said bank₹ account which was opened only on 1.4.2005 was closed on 7.11.2005. The contention of the learned counsel for the appellant that the deceased Mugugan was not a tax payee cannot go unnoticed. PW1 who is the wife of the deceased Murugan had deposed to the effect that Murugan was not a tax payee. Though it was claimed that deceased Murugan was the proprietor of `Sankar Old Metal Mart' dealing in the trade of collection and sale of old metals and other scrap materials for M.A.C.A.No.3000/2009 7 recycling industry apart from the reference made in Exts.X1 and X2 that he was engaged in the business of “പഴയ ഇര�മ� കചവട� ” there is nothing on record to show that he was actually engaged in such business. In that context, it is also relevant to note that PW1 categorically admitted the fact that her husband had no licence obtained from Municipality to do any such business. In this context, it is relevant to refer to the deposition of PW1. Going by her deposition, her husband was not paying income tax and he was not having that much income to give income tax. Taking into account all such circumstances, we are of the considered view that merely because for some time prior to his death deceased Murugan was effecting some payments towards some chitty transactions or effecting some deposits in an account at the rate of ₹100/- per day those aspects could not have been the sole foundation for fixing the monthly income of the deceased as 18,000/-₹ per month. It is true that those aspects would go to show that he was eking his livelihood by engaging himself in some business and that he was earning for himself and the family. But, at the same time, merely because he was engaged in the collection of scrap materials one cannot say with precision that all along he had been collecting such quantity of scrap materials to have a steady income to save 600/- per day. Going₹ by the nature of his business it is hard to think that he has a steady income. As noticed earlier, in fact, no cogent evidence was adduced by M.A.C.A.No.3000/2009 8 the claimants to hold conclusively that he was having a steady income of 18,000/- per month with certitude. Taking into account all such₹ aspects including the fact that the deceased Murugan was not a tax payee and that going by the version of PW1 who is the first respondent he was earning that much income to give income tax. In view of all the aforesaid aspects, we are of the view that it is only proper and just to fix the monthly income of the deceased Murugan at 10,000/- per₹ month for calculation purpose. It is fixed accordingly. 7. Normally, in an appeal preferred by the Insurance Company the question of entitlement of the claimants for getting enhanced compensation under any of the heads on which the Tribunal granted compensation, would not be looked into. But, it cannot be said that there is any legal impediment in looking into such aspects merely because the claimants failed to prefer an appeal against the award or had not filed any cross objection pursuant to the preference of appeal against such judgment and award by any one of the respondents. We may hasten to add that certainly, the claimants cannot claim for such enhancement as a matter of right. But, if the Court thinks that the case on hand is an eminently fit case for considering such aspects it would be well within the power of the Court to consider that aspect even in the absence of a regular appeal or a cross objection by invoking the appellate power under Order XLI Rule 33 of the Code of Civil Procedure. M.A.C.A.No.3000/2009 9 We have already sustained the contentions raised by the appellant that the Tribunal has erroneously fixed the multiplier as also the multiplicand. We have also scaled down the monthly income from ₹18,000/- to 10,000/- and the multiplier was fixed as `14' instead of₹ `15'. Taking note of the fact that the claim petition was filed for death and the deceased Murugan was then survived by the widow and two minor children, true that there are other legal heirs as well, we are of the view that it would only be just and proper to consider the question whether the respondents are entitled to get any enhancement under any other head. In a case where the appellate Court interfered with the quantum of compensation fixed by the Tribunal on the ground of it being so excessive or too lower on the ground that the Tribunal had omitted some relevant aspects for consideration or admitted some irrelevant consideration it is the bounden duty of the appellate Court to set right such perverse fixation and to grant just compensation to subserve the purpose of Section 168 of the M.V. Act. We are of the view that it is only reasonable and proper to re-assess the just compensation as contended by both sides. 8. We have already fixed the multiplier in this case as `14' and fixed the monthly income of deceased Murugan as 10,000/-. In₹ the light of the re-fixation of the multiplier as also the monthly income the amount payable under the head `loss of dependency' has to be re- M.A.C.A.No.3000/2009 10 assessed. As noticed hereinbefore, originally, the claim petition was filed by the widow and two children of the deceased Murugan and the mother of the deceased was impleaded as the 4[th] respondent in the claim petition. During the pendency of the appeal she died and consequently, her legal heirs respondents 4 to 10 herein were impleaded. Paragraph 11 of the impugned judgment would reveal that the Tribunal had deducted 1/3[rd] of the income towards the personal and living expenses of the deceased. In the circumstances mentioned, it ought to have been taken that immediately after the death Murugan was survived by four dependents. In such circumstances, in the light of the decision of the Hon'ble Apex Court in **Sarla Verma's** case (supra) ¼[th] of the income along could have been deducted towards personal and living expenses of the deceased. Taking into account such aspects the amount payable under the head `loss of dependency' has to be reassessed. On such re-assessment only an amount of 12,60,000/- is₹ payable under the head `loss of dependency'. Towards `loss of consortium' the Tribunal has granted only an amount of 10,000/- to₹ the first respondent. Though the claimants have not preferred any appeal we are of the view that it is only just and proper to consider certain aspects while considering the question whether any enhancement could be given under the heads `loss of consortium', `loss of love and affection' and `funeral expenses' in the light of the M.A.C.A.No.3000/2009 11 settled position of law as of now. In that context, the decision to be looked into is the decision rendered by the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh (2013(3) KLT 89(SC)).** True that the accident involved in **Rajesh's** case occurred in the year 2007 and the accident in question occurred on 21.12.2005. Going by the said decision, in the absence of any evidence for a higher compensation a minimum of 1,00,000/- has to be granted to the surviving spouse₹ under the head `loss of consortium'. So also, in the absence of any evidence of higher expenditure a minimum of 25,000/- has to be₹ granted towards `funeral expenses'. In **Rajesh's** case (supra) an amount of 1,00,000/- was granted towards `love and affection'₹ certainly, taking into account the fact that the deceased therein was surviving by two minor children. In this case also the appellant was surviving by two minor children who were aged 16 years and 12 years on the date of the death of Murugan besides his mother who was then aged 70 years. Taking into account such aspects we are of the view that an amount of 1,00,000/- has to be granted under the head `loss₹ of consortium' to the first respondent and an amount of 1,00,000/- is₹ granted to respondents 2 to 10 under the head `loss of love and affection'. Taking into account the age of respondents 1 and 2 at the time of the death of Murugan we are of the view that they shall be entitled to get an amount of 30,000/- each out of 1,00,000/- which₹ ₹ M.A.C.A.No.3000/2009 12 we have fixed towards loss of love and affection and the other respondents except the first respondent are entitled to get the balance amount, being the share which ought to have been allotted to the 4[th] respondent but for her death. Towards funeral expenses they are entitled to get an amount of 25,000/- as they have not adduced any₹ evidence having incurred an expenditure higher than 25,000/-. The₹ Tribunal has granted an amount of 7,324/- towards Ambulance₹ charge. The same is also maintained. By virtue of re-assessment made by us the respondents are entitled to get a total amount of ₹14,92,324/- which is rounded off to 14,92,400/-. Out of the said₹ amount the first respondent alone would be entitled to get the amount of 1,00,000/- granted towards `loss of consortium'. Out of₹ ₹1,00,000/- granted towards compensation for loss of love and affection 30,000/- each shall be given to respondents 2 and 3 and the₹ balance 40,000/- shall be given as the share which ought to have been₹ given to the original 4[th] respondent before the Tribunal. Balance amount shall be apportioned by four equal shares and respondents 1 to 3 are entitled to get one share each and the balance one share which ought to have been granted to the original 4[th] respondent in the claim petition viz., mother of the deceased Murugan alone would be available to be apportioned among respondents 4 to 10. The learned counsel appearing for the appellant submitted that an amount of M.A.C.A.No.3000/2009 13 ₹10,00,000/- was already deposited in compliance with the interim order passed by this Court in I.A.No.3627/2009 in this appeal. It is made clear that the appellant shall deposit only the balance amount payable in the light this judgment whereby we re-assessed the compensation. The amount remaining to be paid to the respondents on the strength of this judgment would carry interest at the rate of 8% per annum from the date of petition till realisation. There will be no order as to costs, in the peculiar circumstances. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **K.P.JYOTHINDRANATH Judge** TKS // true copy // P.S. To Judge