Vijayakumar v. Ajith and Reliance General Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF JULY 2017 / 22ND ASHADHA, 1939** **MACA.No. 1434 of 2012** **AGAINST THE AWARD IN OPMV 204/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 30-03-2012** **APPELLANT(S)/APPELLANT/PETITIONER** **VIJAYAKUMAR, AGED 56 YEARS** **S/O. KOPPAN, IRUMBASSERY HOUSE, P.O.VIYYUR, PADUKKAD DESOM, THRISSUR DISTRICT.** **BY ADVS.SRI.SHEJI P.ABRAHAM** **SRI.O.K.MURALEEDHARAN** ## **RESPONDENT(S)/RESPONDENTS :** ## **1. AJITH, 23 YEARS** **S/O. SOMASUNDARAN, "CHARUTHA", KOZHIPPATTU HOUSE, VIYYUR DESOM, VIYYUR VILLAGE, THISSUR DISTRICT-680 014. (OWNER CUM DRIVER OF KL-7/BF 7630 MARUTHI ZEN CAR).** **2. RELIANCE GENERAL INSURANCE CO. LTD. BRANCH OFFICE, OTTAPALAM, POLICY NO.2204792311003409, VALID FROM 8.7.2009 TO 7.7.2010.** **BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **jm/** ## **C.T.RAVI KUMAR &** ## **ANIL K.NARENDRAN, JJ.** ======================== ## **M.A.C.A.No.1434 of 2012** ======================== Dated this the 13[th] day of July 2017 ## **JUDGMENT** ## C.T.Ravikumar, J. The appellant, who is the husband of the victim of a motor vehicle accident that occurred on 6.2.2010 and who made an application for compensation under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.6,00,000/- for her death, filed this appeal on being aggrieved by the inadequacy of the quantum of compensation granted by the Motor Accidents Claims Tribunal, Ottappalam in O.P.(M.V.)No.204/2010. His wife Smt.Lakshmi Kumari died in a motor vehicle accident that occurred on 6.2.2010 at about 5.30 a.m. She was a pedestrian and she was knocked down by the car bearing Reg.No.KL-7 BP 7630 driven by the first respondent. On sustaining severe injuries, she was taken to the hospital,where, she breathed her last. **2** M.A.C.A.No.1434 of 2012 2. In the claim petition, it was averred by the appellant herein that she was a tailor by profession and was earning Rs.5,000/- per month. Before the Tribunal, he got himself examined as PW1 besides getting marked Exts.A1 to A8. On the side of the respondent, no oral evidence was adduced and Ext.B1, which is the copy of the insurance policy was got marked as Ext.B1. The Tribunal, after considering the evidence on record and also the rival contentions, granted an amount of Rs.2,56,000/- as compensation with interest at the rate of 7% per annum from the date of the petition till realisation. It is seeking enhancement of the said compensation that this appeal is filed. 3. We have heard the learned counsel for the appellant and also the learned Counsel appearing for the second respondent insurance company. 4. There is no dispute regarding the accident, the cause of the accident as the negligence on the part of the first respondent, the owner-cum-driver of the offending vehicle as also the liability of the second respondent to indemnify the first respondent. In such circumstances, the only question to be M.A.C.A.No.1434 of 2012 **3** considered in this appeal is, whether or not the appellant is entitled to get enhanced compensation. 5. To buttress his contention that he is entitled to get enhanced compensation, it is submitted that the Tribunal went wrong in fixing the monthly income of the deceased for the purpose of calculating compensation for loss of dependency. Further it is contended that the Tribunal had committed an error in effecting deduction of 50% of the monthly income fixed. It is further contended that the Tribunal had virtually denied the due compensation under the heads 'loss of consortium', for 'pain and suffering' etc. The learned Counsel appearing for the second respondent submitted that a perusal of the schedule of compensation given in the impugned judgment would reveal that the appellant was granted just compensation for the death of his wife and therefore, no appellate interference is called for. 6. A scanning of the impugned judgment would reveal that the Tribunal had virtually concluded that the appellant being the husband of the deceased could not be considered as a dependent of the deceased. At the same time, it is evident that the Tribunal had granted compensation for loss of dependency to M.A.C.A.No.1434 of 2012 **4** the appellant. An amount of Rs.2,34,000/- was granted under the said head. Though the Tribunal had granted compensation under the said head to the appellant, none of the respondent has preferred any appeal challenging the same. In such circumstances, we do not find any reason to interfere with the awarding of the compensation under the head loss of dependency. We are also of the considered view that dependency cannot always be financial dependency. The appellant who lost his wife at the age of 54 years is certainly entitled to make such a claim. 7. The learned Counsel for the appellant submitted that the Tribunal had erroneously fixed the monthly income of the deceased and the said erroneous estimation resulted in denial of due compensation under the said head. It is submitted that the Tribunal had ignored the averments of the petitioner in the claim petition and also the evidence adduced by him as PW1. In the claim petition, the appellant had averred that the deceased was a tailor by profession and she was earning Rs.5,000/- per month. At the same time, to establish the said contention, he produced Ext.A8 salary certificate issued from the proprietor of 'Life style M.A.C.A.No.1434 of 2012 **5** fitness'. Going by the same, she was a tailor and she was drawing a monthly salary of Rs.4,000/-. While being examined as PW1, he deposed in tune with Ext.A8 and not in tune with his pleadings in the claim petition. Therefore, the question is whether notional fixation of the monthly income of the deceased as Rs.3,000/requires interference. 8. The accident had occurred on 6.2.2010. The appellant’s wife Lakshmi Kumari was then aged 46 years. Taking into account the aforesaid aspects as also the fact that she was earning besides discharging her duties as house-wife, we are of the view that it is only just and proper to fix the monthly income of the deceased notionally as Rs.4,000/-. The multiplier was rightly adopted by the Tribunal with reference to the age of the deceased. 9. The learned Counsel for the appellant raised a further grievance in regard to the fixation of compensation for loss of dependency. The contention is that the Tribunal ought not have deducted 50% of income of the deceased while calculating compensation for loss of dependency. It is submitted by the learned Counsel that even in _**Sarla Verma v. Delhi Transport**_ M.A.C.A.No.1434 of 2012 **6** _**Corporation [2010 (2) KLT 802]**_ , the Apex Court had not specifically laid down anything as to what should be the rate of deduction to be made when there is only one dependent family member. Referring to Paragraph 30 of the said decision, it is submitted by the learned Counsel for the appellant that after referring to its earlier decision in _**U.P.SPRC Vs.Trilok Chandra [(1996) 4 SCC 362]**_ , the Hon'ble Apex Court held therein that where the deceased was married, the deduction towards personal and living expenses of the deceased should be 1/3[rd] where the number of dependent family members is 2 to 3, 1/4[th] where the number of dependent family members is 4 to 6 and 1/5[th] , where the number of dependent family members exceeds 6. In short, the contention is that in such circumstances, deducting 50% of the income of the deceased citing the existence of only one dependent family member, is not in tune with the dictum laid down in **Sarla Verma's case** (supra). We are afraid the contention cannot be countenanced. It is true that in the said decision, the Hon'ble Apex Court held that where the deceased was married, deduction towards personal and living expenses should as mentioned hereinbefore and evidently, the deduction M.A.C.A.No.1434 of 2012 **7** of 1/3[rd] was insisted where the number of dependent family members is '2 to 3'. There cannot be any doubt with respect to the position that the Apex Court had very specifically held therein as to what should be rate of deduction towards personal and living expenses of the deceased when the number of the dependent family members is 2 to 3, and when the number of family members is 4 to 6 and when it exceeds 6. At the same time, it is to be noted going by the said decision, in a case where the deceased was a bachelor and the claimants are parents, 50% is to be deducted towards personal and living expenses. It is also held therein that even in a case where the deceased is survived by parents and siblings the mother alone should be considered as the dependent under normal circumstances and in such circumstances also 50% has to be deducted towards personal and living expenses of the bachelor. How, in the said circumstances, the solitary dependent family member could claim more than what is payable in the other circumstances. Thus, it would be totally unjustifiable to restrict the deduction below 50%. For the foregoing reasons, we have no hesitation to hold that the contention of the appellant is without any basis. M.A.C.A.No.1434 of 2012 **8** 10. In such circumstances, a recalculation of the compensation for loss of dependency is required only by substituting the refixed monthly income viz., Rs.4,000/-. On such reassessment an amount of Rs.3,12,000/- is payable under that head. The Tribunal had already granted an amount of Rs.2,34,000/- under that head. After deducting the amount the appellant is entitled to get an amount of Rs.78,000/- additionally under that head. Towards, loss of consortium, only an amount of Rs.10,000/- was granted by the Tribunal. Taking into account the dictum laid down in _**Rajesh v.Rajbir Singh [2013 (3) KLT 89 (SC]**_ and also taking note of the fact that the accident involved in that case was in the year 2007, we are of the view that the appellant is entitled to get the benefit of the decision in _**Rajesh's case (supra)**_ . Going by the said decision, a surviving spouse, in a claim petition filed under Section 166 of the MV Act is entitled to get Rs.1,00,000/- towards compensation under the head loss of consortium and in the absence of any evidence of higher expense, a minimum of Rs.25,000/- can be granted towards funeral expenses. In this case, the Tribunal had granted only an amount of Rs.5,000/- towards funeral expenses. In such M.A.C.A.No.1434 of 2012 **9** circumstances, in the light of _**Rajesh's Case (supra),**_ the appellant is entitled to get an additional amount of Rs.90,000/towards loss of consortium and an amount of Rs.20,000/towards funeral expenses. Towards pain and suffering, no amount was granted by the Tribunal. It is true that the appellant succumbed to the injuries on the same date of the accident itself. However, it is evident that she has breathed her last from the hospital after the accident. In such circumstances, it is evident that she had experienced severe pain for some hours. In such circumstances, we are inclined to grant Rs.10,000/- towards compensation for pain and suffering. Towards the compensation for damage to clothing, no amount was granted by the Tribunal. Going by the nature of injuries revealed from Ext.A4 Post Mortum Certificate, it is evident that the dresses worn by the deceased must have been spoiled. In such circumstances, we are inclined to grant an amount of Rs.1,000/- under that head. Despite the persuasive arguments of the learned Counsel for the appellant, we do not find any reason to interfere with the assessment of compensation made by the Tribunal under other heads. In the result, this appeal is allowed. The appellant is granted a total M.A.C.A.No.1434 of 2012 **10** compensation of Rs.1,99,000/(Rs.78,000+Rs.90,000/+Rs.20,000/-+Rs.10,000/-+Rs.1,000/-). The said additional compensation will carry interest at the rate of Rs.8% from the date of the claim petition till realisation. The second respondent is directed to deposit the additional compensation along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. ## Sd/ **C.T.RAVIKUMAR JUDGE** sd/ **ANIL K.NARENDRAN JUDGE** jm/ \\ True copy \\ PA to Judge