United India Insurance Company Limited v. Bhagyalakshmi and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2017/22ND BHADRA, 1939 MACA.No. 1365 of 2015 () ------------------------AGAINST THE AWARD IN OPMV 513/2013 of M.A.C.T. TIRUR DATED 07-01-2015 APPELLANT(S)/3RD RESPONDENT: --------------------------- UNITED INDIA INSURANCE COMPANY LIMITED PONNANI, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S):PETITIONERS ---------------------------------- 1. SIVADASAN .P, S/O.NARAYANAN NAIR, SYAM NIVAS, PORAKKULATH, CHAMRAVATTAM P.O., TRIPRANGODE, MALAPPURAM DISTRICT, PIN 676306. 2. SHIBHAMOL.P,W/O.DINESH, NADAMBADI HOUSE, POYOLISSERI, TRIPRANGODE, MALAPPURAM DISTRICT, PIN 676306. 3. SHYAM PRASAD.P, S/O.SIVADASAN, SYAM NIVAS, PORAKKULATH, CHAMRAVATTAM P.O.,TRIPRANGODE, MALAPPURAM DISTRICT,PIN-676306. 4. VICHITHRA P.(MINOR),D/O.SIVADASAN.P, SYAM NIVAS,PORAKKULATH, CHAMRAVATTAM P.O., TRIPRANGODE, MALAPPURAM DISTRICT, PIN 676306. 5. VISMAYA P.(MINOR), D/O.SIVADASAN.P, SYAM NIVAS, PORAKKULATH, CHAMRAVATTAM P.O., TRIPRANGODE, MALAPPURAM DISTRICT, PIN 676306. 6. CHANDRAMATHIAMMA.P W/O.LATE UNNERIKURUP, SYAM NIVAS, PORAKKULATH, CHAMRAVATTAM P.O., TRIPRANGODE, MALAPPURAM DISTRICT, PIN-676306. (MINOR RESPONDENTS 4 & 5 ARE REPRESENTED BY THEIR FATHER 1ST RESPONDENT). R1-R6 BY ADV. SRI.V.MADHUSUDHANAN R1-R6 BY ADV. SRI.M.SREEBHADRAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-09-2017, ALONG WITH M.A.C.A.NO.2245/2015,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANU SIVARAMAN, JJ.** ## **========================== M.A.C.A. No.1365 & 2245 OF 2015 ==========================** Dated this the 13[th] day of September, 2017 ## **JUDGMENT** _Ravikumar, J._ The captioned appeals arise from the judgment and award dated 7.1.2015 in O.P.(MV)No.513 of 2013 passed by the Motor Accidents Claims Tribunal, Tirur. The former appeal has been preferred by the third respondent therein who is the insurer of the offending vehicle involved in the accident contending that the Tribunal has granted exorbitant amount of compensation and therefore, it is to be scaled down. The latter appeal has been preferred by the appellants/petitioners contending that the Tribunal has denied just compensation to them and therefore, the quantum of compensation is to be enhanced. The claim petition was filed by the legal heirs of one Bhagyalakshmi who lost her life in a motor vehicle accident occurred **M.A.C.A.1365 & 2245 of 2015** 2 on 07.12.2012 at about 4.30 p.m. They are respectively the widower, children and mother of the deceased. On that fateful day, she was a pillion rider on the scooter bearing Reg.No.KL-55/B-5970. At the place of accident, the said scooter was hit by the motor cycle bearing Reg.No.KEO-0005 ridden by the second respondent. Bhagyalakshmi was taken to MIMS Hospital, Kozhikode and while undergoing treatment, she succumbed to the injuries on the same day itself. It is in the said circumstances that the above mentioned claim petition was filed under section 166 of the Motor Vehicles Act claiming a total compensation of Rs.61 lakhs. 2. The evidence before the Tribunal consisted of documentary evidence on the side of the appellants/petitioners. Exts.A1 to A20 were also got marked on their side. No evidence was adduced by the respondents. It is evaluating the evidence on record and appreciating the rival contentions that the impugned award was passed whereunder an amount of Rs.38,70,500/- was granted as compensation with interest at the rate of 9% per annum from the date of petition till **M.A.C.A.1365 & 2245 of 2015** 3 realisation. As noticed hereinbefore, it is seeking scaling down of the quantum of compensation on the ground of exorbitancy that the former appeal has been preferred whereas the latter appeal has been preferred raising the ground of inadequacy of compensation. 3. We have heard the learned senior counsel appearing for the appellant in the former appeal and also the learned counsel for the appellant in the latter appeal. For the sake of convenience, hereafter in this judgment, the parties are referred to in accordance with their status before the Tribunal in O.P.(MV)No.513/2011 unless otherwise specifically mentioned. 4. In view of the conflicting claims and contentions in the appeals, we are of the view that it is only proper to consider the M.A.C.A.No.1365/2015, firstly. Needless to say that subject to the outcome of the said appeal, the latter appeal has to be considered. As noticed hereinbefore, the former appeal has been preferred by the insurer of the offending vehicle involved in the accident. There is no dispute regarding the cause of accident as also the liability of the third **M.A.C.A.1365 & 2245 of 2015** 4 respondent insurer to indemnify the insured owner of the said vehicle. In the former appeal, we are called upon to consider the question whether the quantum of compensation awarded by the Tribunal is exorbitant warranting an appellate interference. The learned senior counsel appearing for the third respondent submitted that the Tribunal has fixed the monthly income of the deceased as Rs.25,000/- without any proper basis and add to it, disregarding the fact that the deceased was not having steady income, an addition of 30% to the income was also given. It is therefore submitted that one of the reasons for granting exorbitant compensation is the erroneous fixation of the monthly income by the Tribunal. It is also contended that the Tribunal has granted an amount of Rs.3,00,000/- as compensation under the head loss of love and affection unreasonably. Without properly scanning the evidence on record, an amount of Rs.50,000/- was granted towards mental agony, it is submitted. There is absolute absence of any averment to the effect that any one of the claimants had actually witnessed the accident and on account of witnessing the **M.A.C.A.1365 & 2245 of 2015** 5 said accident they suffered psychiatric illness wholly attributed to the misfortune of having witnessed the accident. It is based on such contentions that the third respondent seeks for scaling down the compensation granted as per the impugned award. 5. Resisting the aforesaid contentions, the learned counsel for the claimants/appellants in the latter appeal contented that the Tribunal has rightly fixed the monthly income of the appellant as Rs.25,000/- and it cannot be said that the Tribunal went wrong in making an addition of 30% to the income so fixed. It is the further contention that taking into account the fact that there are six claimants, the compensation granted under the head loss of love and affection also cannot be said to be on a higher side warranting appellate interference. It is also the contention that the first appellant is the widower and appellants 2 to 5 are the children of the deceased and the sixth appellant is the mother of the deceased. There is absolutely no reason to hold that the Tribunal went wrong in granting an amount of Rs.50,000/- for mental agony. In the light of the **M.A.C.A.1365 & 2245 of 2015** 6 aforesaid rival contentions, we will firstly consider the question whether compensation awarded by the Tribunal as per the impugned award is exorbitant. 6. In the claim petition, it was averred that the deceased was a LIC agent and claimed that she was earning a monthly income of Rs.38,476/-. The very fact that the deceased was only a LIC agent itself would reveal that she is not a salaried person or a person with fixed income. We may hasten to add that the income of the deceased was not established in accordance with law. It can only be said that she was a self employed person. It also cannot be said that she was in a position to seek for enhancement of the wages by lapse of time taking into account the hike in cost of living and the price index. Her income could have been proportional to the business canvassed by her. When that be so, the dictum laid down by the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** and **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** is totally inapplicable to the case on hand. Having carefully **M.A.C.A.1365 & 2245 of 2015** 7 scanned the impugned award, we find only one reason assigned by the Tribunal for making an addition of 30% after fixing the monthly income as Rs.25,000/-. It reads as follows:- "Considering the age of the deceased and her professional excellence, I find that an addition of 30% also can be given towards future prospects which is Rs.7,500/-. So, the monthly income of the deceased can be taken as Rs.32,500/-." 7. Taking into account the nature of the employment taken up by the deceased, it cannot be said with certitude that by lapse of time, she would have earned more had she been alive. We are of the considered view that we will be justified in making such an observation in the light of ground B in the latter appeal wherein a table showing the annual income of the deceased during the period from 2006-2007 to 2011-2012 and from 1.04.2012 to 30.11.2012, was given. It would reveal that except in the year 2009-2010, the annual income of the deceased was in a descend. At the same time, taking into account the evidence on record, the fixation of the monthly **M.A.C.A.1365 & 2245 of 2015** 8 income as Rs.25,000/- by the Tribunal cannot be said to be on the higher side warranting an appellate interference. It was fixed by the Tribunal taking into account the income earned by the deceased during the previous periods. Ext.A19 is the income tax return for the assessment year 2010-2011. Now, in the light of our finding that the decision of the Apex Court in **Sarla Verma** 's case and **Rajesh** 's case is totally inapplicable and there is no other special circumstances compelling to make an addition to the income fixed, we are of the view that the addition made by the Tribunal to the notional income fixed as Rs.25,000/- is liable to be interfered with. We do so. 8. Now the question to be considered is whether the Tribunal was justified in granting an amount of Rs.3 lakhs as compensation towards loss of love and affection. The Tribunal has granted an amount of Rs.3 lakhs as against a claim of Rs.6 lakhs. Despite our careful scrutiny of the impugned judgment, we do not find any reason whatsoever assigned by the Tribunal for granting an amount of Rs.3 lakhs towards loss of love and affection. In fact, there is absolute **M.A.C.A.1365 & 2245 of 2015** 9 absence of any discussion at all in the impugned judgment for granting an amount of Rs.3 lakhs towards loss of love and affection. The Tribunal was bound to apply its mind and assign specific reasons therefor. In **Rajesh** 's case, taking into account the fact that the deceased was survived by two minors, the Apex Court granted an amount of Rs.1 lakh as compensation for loss of love and affection. In this case, at the time of accidental death of Bhagyalakshmi, her children viz., appellants 2 to 4 were aged 32 years, 18 years and 15 years respectively. There cannot be any doubt with respect to the position that after granting compensation for loss of consortium, the surviving spouse, in a claim for compensation for death filed under section 166 of the M.V Act could not have been granted compensation for loss of love and affection. Therefore, essentially, the amount of under the said ground was to be granted for appellants 2 to 6. The second appellant was then aged 32 years and the 6[th] appellant mother was then aged 68 years and others were aged in between. At any rate, we do not find any reason for payment of an amount in excess of Rs.2 **M.A.C.A.1365 & 2245 of 2015** 10 lakhs under the said head. In short, we are constrained to hold that the Tribunal has granted at least an amount of Rs.1 lakh in excess of what could be granted thereunder. Coming to the question of sustainability of granting of an amount of Rs.50,000 towards mental agony, it is to be noted that a perusal of the impugned judgment would reveal absolute absence of any specific averment in the claim petition that at least one of them had the misfortune of having witnessed the accident in question. There cannot be any doubt with respect to the position that in order to claim damages on account of mental shock and suffering, there must be positive evidence to show that there is something more than sorrow or mourning. Such additional or extra element must be in the form of recognised psychiatric illness which is really and wholly attributable to the misfortune of having witnessed the accident. There is no such case for the appellants and on perusing the impugned judgment, it can be seen that the Tribunal has not assigned any such reason for awarding Rs.50,000/- towards mental agony. In such circumstances, it can only be held that the appellants **M.A.C.A.1365 & 2245 of 2015** 11 were not entitled to get Rs.50,000/- under the head 'compensation for mental agony'. The learned senior counsel appearing for the third respondent contended that the Tribunal has also granted higher compensation under other heads. On perusing the impugned judgment, we do not find any reason to sustain the said contention. We are of the view that while considering the question of adequacy or inadequacy of compensation, provisions under section 168 M.V Act has to be taken into account. True that none can be permitted to create fortune out of misfortune. Granting compensation to the claimants could not be oppressive to the respondents and at the same time, it cannot be pittance. In short, what is payable under the provisions of section 168 M.V Act is only 'just compensation'. It has to be adjudicated taking into account various relevant factors. The nub of the discussions is that the Tribunal has virtually granted compensation in excess under the above mentioned specific heads. In short, the compensation granted by the Tribunal as per the impugned award invites interference under the heads loss of dependency, compensation **M.A.C.A.1365 & 2245 of 2015** 12 for loss of love and affection and compensation for mental agony. On perusing the schedule of compensation given in the impugned award, it is seen that an amount of Rs.1,00,000/- was granted towards loss of consortium and funeral expenses. After granting an amount of Rs.1,00,000/- under the combined head of loss of consortium and funeral expenses, the Tribunal has granted a further amount of Rs.25,000/- towards funeral expenses. At the same time, we do not find any reason to interfere with the compensation granted towards funeral expenses on the aforesaid ground as what was granted towards loss of consortium and funeral expenses is only Rs.1,00,000/-. In the light of the decision in **Rajesh** 's case, the surviving spouse in a claim for compensation is entitled to get Rs.1,00,000/-. In the light of the aforesaid discussions, the quantum of compensation granted by the Tribunal appears to be excessive and it requires to be scaled down. On considering various contentions raised in the latter appeal, we are of the considered view that there is substance in one of the contentions taken up therein. It is contended by the learned counsel **M.A.C.A.1365 & 2245 of 2015** 13 for the appellants-claimants that the Tribunal went wrong in deducting 1/3[rd] of the income of the deceased instead of ¼[th] towards personal and living expenses of the deceased. The learned counsel submitted that in the light of the decision in **Sarla Verma** 's case, such deduction has to be made taking into account the number of surviving dependent family members. In this case, appellants 1 and 2 cannot be said to be surviving dependent family members. But at the same time, appellants 3 to 6 can be treated as the dependents of the deceased. In such circumstances, in the light of the decision in **Sarla Verma** 's case, ¼[th] of the income of the deceased alone ought to have been deducted towards personal and living expenses of the deceased. In such circumstances, it has to be held that the Tribunal went wrong in effecting deduction of 1/3[rd] of the income towards living and personal expenses of the deceased instead of ¼[th] taking into account the surviving dependent family members. We have fixed the monthly income of the deceased as Rs.25,000/- and found that no addition ought to have been made to the income thus fixed. We have also **M.A.C.A.1365 & 2245 of 2015** 14 found that deduction towards personal and living expenses ought to have been only ¼[th] of the said income. Based on our findings that the Tribunal has rightly adopted the multiplier, the compensation payable for loss of dependency has to be re-assessed taking into account the aforesaid aspects. On such re-assessment, the amount payable towards loss of dependency will be 29,25,000/- (25000x12x13x3/4). The Tribunal has already awarded an amount of Rs.33,80,000/-. Thus, it can be seen that the Tribunal has granted Rs.4,55,000/- in excess under the said head. The said amount has to be deducted. We have already found that the Tribunal has granted Rs.1,00,000/- in excess towards compensation for loss of love and affection. We have also found that the Tribunal has granted an amount of Rs.50,000/-towards mental agony. In the light of the aforesaid discussions, an amount of Rs.6,05,000/- has to be deducted from the amount of compensation awarded by the Tribunal. Hence, the amount awarded by the Tribunal stands modified by scaling down an amount of Rs.6,05,000/-. In other words, the impugned award is modified as regards the quantum of **M.A.C.A.1365 & 2245 of 2015** 15 compensation and the appellants/claimants will be entitled only for a total compensation of Rs.32,65,000/-. It is made clear that we have not interfered with the rate of interest fixed by the Tribunal as per the impugned award viz., 9%. The appeals stand disposed of. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/ANU SIVARAMAN (JUDGE)** **spc/** **M.A.C.A.1365 & 2245 of 2015** 16 **C.T. RAVIKUMAR, J.** **M.A.C.A.1365 & 2245 of 2015** 17 **JUDGMENT September, 2010**