The Oriental Insurance Co. Ltd. v. P.K. Jumaila and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935** ## **MACA.No. 14 of 2011** **-----------------------AGAINST THE AWARD IN OP(MV)NO. 1515/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 11-08-2010** **.....** ## **APPELLANT(S)/3RD RESPONDENT IN THE OP:** **--------------------------------------------------------------------------** **THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE ERNAKULAM, REP. BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE, CO.LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH,KOCHI-18.** ## **BY ADV. SRI.A.R.GEORGE** **RESPONDENT(S)/CLAIMANTS IN THE OP:** **------------------------------------------------------------------** **1. P.K.JUMAILA, W/O. LATEB T.A.UMMER, PUTHENPURACKAL HOUSE, 19/925B, SDPY ROAD, PALLURUTHY.P.O., PALLURUTHY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT - 682 005.** ## **2. CU MUHAMMED ASHRAF, S/O. TA UMMER, -DO DO-** **3. CU AKTHAR, S/O. TA UMMER, -DO-DO-** ## **4. CU ASHIRA, D/O. TA UMMER, -DO-DO-** **R1 TO R4 BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI** **SRI.G.ARUN GOPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** ............................................................................ M.A.C.A.NOs.14 & 340 of 2011 ........................................................................... Dated this the 19[th] day of December, 2013. ## **JUDGMENT** ## **Ramakrishnan, J.** The wife and children of deceased Ummer filed the application for compensation for the death of their breadwinner, who died in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle, owned and driven by respondents 1 and 2 and insured with the third respondent in the lower court. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by its driver and awarded a total compensation of Rs..4,92,300/- under various heads as follows: |Compensation for loss of dependency|Rs.4,20,300| |---|---| |Funeral expenses|Rs. 5,000| |Transport expenses|Rs, 2,000| |Compensation for pain & sufferings|Rs. 5,000| |Compensation for love and affection|Rs. 20,000| |Compensation for loss of consortium|Rs. 10,000| |Compensation for mental|| |shock & agony|Rs. 10,000| |Compensation for loss of|| |guidance and support|Rs. 10,000| |Compensation for the loss of|| |expectation of life|Rs. 10,000| ||--------------------| |Total<br>|Rs. 4,92,300| M.A.C.A.NOs.14 & 340 of 2011 2 2. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants filed MACA.No.340/2011 seeking enhancement while aggrieved by the compensation awarded, the insurer-third respondent filed MACA.No.14/2011 before this Court agaisnt the quantum of compensation awarded. 3. For the purpose of convenience, we are referring to the status of the parties as the claimants and the insurance company in this judgment. 4. Heard the learned counsel for the claimants and the learned counsel for the insurance company. 5. The counsel for the claimants submitted that the deceased was aged 44 years at the time of the accident and a fish vendor by profession and getting Rs.6,000/- per month . But, the Tribunal has arbitrarily fixed his income at Rs.3,500/without considering the future prospects of getting better income for the years to come. Further, there are four dependants and the Tribunal has deducted only one third towards personal expenses. In fact one fourth has to be deducted in view of the decision reported in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 SC). The amount awarded under the head pain and suffering, loss of M.A.C.A.NOs.14 & 340 of 2011 3 consortium, love and affection etc. are also on the lower side. So, according to the learned counsel for the claimants, the appellants are entitled to enhancement under all heads. 6. On the other hand, the learned counsel for the insurance company submitted that the deceased was aged 44 years and the proper multiplier applicable as per **Sarla Verma** (cited supra) is 14, but the Tribunal has taken 15 as the multiplier which is not correct. Further, the Tribunal has awarded compensation under the head mental shock and agony, loss of expectation of life etc. as well which is not sustainable in law. So, according to the learned counsel, the total compensation awarded is excessive and necessary deduction will have to be made on the above counts. 7. We have considered the rival contentions of both the parties in detail. 8. The case of the claimants was that the deceased was a fish vendor by profession and earning Rs.6,000/- per month. But, no evidence was adduced on the side of the appellants to prove his income. So, under the circumstances, the amount of Rs.3,500/- notionally fixed by the Tribunal taking into consideration the age of the deceased, his profession and future M.A.C.A.NOs.14 & 340 of 2011 4 prospects in the year 2005 cannot be said to be on the lower side. We are not inclined to interfere with the notional income fixed by the Tribunal, as it appears to be just and proper. 9. There is some force in the submission made by the counsel for the insurance company regarding the multiplier adopted. The deceased was aged 44 years at the time of the accident. As per **Sarla Verma** (cited supra), the proper multiplier applicable to the age group of 44 years as the deceased is 14 and not 15 as taken by the Tribunal. Though the appellants are four in number, appellants 2 to 4 are majors. There is no evidence adduced to prove that they were really depending on the income of the deceased for their livelihood. So considering the circumstances, the Tribunal was perfectly justified in deducting one third for personal expenses of the deceased for assessing compensation under the head loss of dependency. If a recalculation is made on the basis of the above inputs, the appellants will be entitled to get Rs.3,92,000/(3500x12x14x2/3) instead of Rs.4,20,300/- awarded by the Tribunal under the head loss of dependency. There is an excess amount of Rs.28,300/- awarded by the Tribunal under that head which has to be deducted from the total compensation. M.A.C.A.NOs.14 & 340 of 2011 5 But there is some force in the submission made by the counsel for the claimants that the Tribunal has awarded Rs.5,000/under the head pain and suffering though he was treated in the hospital and died in the hospital while undergoing treatment there. Further, the first appellant was aged only 42 years at the time of death of her husband and only Rs.10,000/ was awarded under the head loss of consortium. In the decision reported in **Rajesh v Rajbir Singh** (2013 (3) KLT 89 SC) the Hon'ble Supreme Court has held that in appropriate cases loss of consortium should be a minimum of Rs.1,00,000/- and also funeral expenses must be Rs.25,000/- considering the nature of religious rites to be performed according to the custom prevailing in the community to which the deceased belongs. So, considering the above decision, the amount awarded under the head compensation for loss of consortium and funeral expenses appears to be on the lower side. But, at the same time, the claimants are not entitled to get compensation under the head mental shock and agony suffered by them, loss of expectation of life and loss of guidance and support separately in view of the decision reported in **Sarla Verma** (cited supra) especially when compensation was awarded under the head M.A.C.A.NOs.14 & 340 of 2011 6 loss of love and affection. But, considering the amounts awarded under the head loss of consortium, loss of love and affection, pain and suffering and funeral expenses, we feel that the total amount of RS.4,92,300/- awarded by the Tribunal appears to be just and proper, considering the age of the deceased and loss suffered by the appellants on account of the death of their breadwinner. So, we are not inclined to interfere with the amount awarded by the Tribunal as it appears to be just and proper. So both the appeals are without any merit and the same are liable to be dismissed. We do so. In the result, both the appeals are dismissed. ## Sd/- ## **S.SIRI JAGAN, JUDGE.** ## **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S. To Judge