Vijaya w/o Late Sunil Kumar and Sujesh v. Royal Sundaram Alliance Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938** **MACA.No. 1906 of 2015 ()** **-------------------------** **AGAINST THE AWARD IN OPMV 851/2014 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 31.1.2015** **APPELLANT(S)/PETITIONERS:** **------------------------** **1. VIJAYA W/O.LATE SUNIL KUMAR.** **2. SUJESH** **S/O.LATE SUNIL KUMAR** **BOTH ARE RESIDING AT SUJISHA NIVAS, THEKKENDATH THAZHAM VAYALIL, CHETTIKULAM P.O., ELATHUR, KOZHIKODE.** ## **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT(S)/3RD RESPONDENT:** **-----------------------------** **ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. M.SONS ARCADE, 4TH FLOOR, CHEROOTTY ROAD, KOZHIKODE - 673 001.** **R1 BY ADV. SRI.MATHEWS JACOB (SR.) R1 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1906 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of September, 2016** ## **J U D G M E N T** ## **Ravikumar,J.** The claimants before the Tribunal comes up in appeal feeling aggrieved by the judgment and award in O.P.(M.V.) 851/2014 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode. They are the widow and son of one Sunil Kumar who died in a motor vehicle accident occurred on 10.3.2014. The deceased was a foot passenger who was knocked down by a car bearing registration No.KL-58-G7770. He was immediately taken to Medical College Hospital, Kozhikode and on the same day itself, from there, he succumbed to the injuries. It is in said circumstances that the aforesaid claim petition was filed seeking compensation for his death. Before the Tribunal, no oral evidence was adduced by both sides and in the case of the respondents they did not adduce any documentary evidence as well. On the side of the appellants they produced and got marked Exts.A1 to A5. As per the impugned award the M.A.C.A.No.1906 of 2015 2 Tribunal granted a total compensation of Rs.8,16,000/- with interest at the rate of 9% per annum from the date of petition till realization. It is seeking further enhancement of the quantum of compensation that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellants as also the learned Senior Counsel appearing for the respondent Insurance Company. 3. Evidently, the accident, the cause of accident as negligence from the part of the driver of the car as also the insurance coverage of the said offending vehicle are not in dispute. In such circumstances, we called upon to consider only the question of entitlement of the appellants for enhancement of the compensation. On consent, we are going to dispose of the appeal at this stage itself. 4. The main grievance of the appellants is that despite the fact that the accident occurred on 10.3.2014 and on the day of the accident the deceased was aged only 43 years the Tribunal fixed the monthly income notionally as Rs.5,000/-. True that the Tribunal has added 30% to the M.A.C.A.No.1906 of 2015 3 said income reckoning the future prospects. It is contended by the learned counsel that it is the erroneous fixation of the monthly income that virtually deprived by the appellants just compensation. Though in the light of the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** the first appellant being the widow of deceased Sunil Kumar, is entitled to a minimum of Rs.1 lakh towards loss of consortium the Tribunal granted only an amount of Rs.50,000/-. The learned counsel further contended that compensation granted by the Tribunal under the heads 'loss of estate', 'pain and sufferings', 'damage to clothing' and 'transportation expenses' etc. are also on the meagre side. 5. Per contra, the learned Senior Counsel appearing for the respondent contended that the Tribunal cannot be found fault with in fixing the monthly income of the deceased notionally as the appellants had not adduced any evidence to establish his occupation as also the income. Further it is contended that the fixation of the monthly income as Rs.5,000/- invites no interference as the Tribunal M.A.C.A.No.1906 of 2015 4 added 30% to it reckoning the future prospects. It is also submitted that a glance at the schedule of compensation given in the judgment would reveal that the appellants were adequately compensated under all heads. In short, it is submitted that the appellants have failed to bring out any ground warranting an appellate interference. 6. After hearing the learned counsel on both sides and perusing the impugned judgment, we are of the considered view that there is scope for consideration on the question of enhancement only under two heads viz. compensation for 'loss of dependency' and under the head 'loss of consortium'. Towards loss of consortium in the light of the decision of the Hon'ble Apex Court in Rajesh's case (supra) there cannot be any dispute with respect to the position that a minimum of Rs.1 lakh is to be granted to the surviving spouse on the death of his/her spouse and in a claim petition moved under Section 166 of the M.V.Act for compensation for the death of his/her spouse. In the light of the decision in Rajesh's case (supra) the contention of the learned counsel for the appellants that compensation M.A.C.A.No.1906 of 2015 5 granted under the head of loss of consortium requires an appellate modification is certainly to be accepted. In the light of the said decision, we are of the view that the appellants are entitled to get Rs.50,000/- more. It is granted. While considering the inadequacy of the compensation granted under the head loss of dependency certain aspects have to be looked into. True that despite taking up a contention regarding the occupation and income in the claim petition of the deceased, the appellants have failed to adduce evidence to establish such contentions. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income notionally. Then the question is whether the fixation of Rs.5,000/- as the monthly income invites interference. We are of the view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has to be taken for guidance in the matter of notional fixation of monthly income for calculation purpose. In Ramachandrappa's case a coolie who met with M.A.C.A.No.1906 of 2015 6 an accident in the year 2004 and the Hon'ble Apex Court took his monthly income notionally as Rs.4,500/-. The accident in question occurred about a decade thereafter. Even then the Tribunal took only an amount of Rs.5,000/- as the monthly income. The deceased was then aged only 45 years. Taking note of such circumstances, we are of the considered view that it is only proper to fix the monthly income as Rs.6,000/-. Accordingly it is fixed. We are also of the view that the Tribunal is justified in granting 30% addition reckoning future prospects and also in effecting a deduction of 1/3[rd] of the income reckoning the number of dependents. In such circumstances, taking into account the monthly income now fixed by us and adding 30% to it reckoning the future prospects and making a deduction of 1/3[rd] towards personal expenses the monthly income for calculation purpose has to be taken as Rs.5,200/-. In the said circumstances the amount of compensation payable under that head has to be reassessed by substituting the refixed monthly income. On such reassessment, the appellants would be entitled to get an amount of Rs.8,11,200/-. But the M.A.C.A.No.1906 of 2015 7 Tribunal has already granted an amount of Rs.6,76,000/under that head. After deducting the said amount the appellants would be entitled to get an amount of Rs.1,35,200/- additionally under the said head. In the light of the aforesaid discussion, the appellants are entitled to get a total enhanced compensation of Rs.1,85,200/- (Rupees one lakh eighty five thousand two hundred only). It is awarded. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent insurer is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest at the rate of 9%. There will be no order as to costs. Sd/- **JUDGE** Sd/- **C.T. RAVIKUMAR** **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/