Vini and Others vs Chandresh S/o Chandrasekharan; Lalu @ Savya Saji; The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937 MACA.No. 2229 of 2013 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.988/2012 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 20.3.2013 ## APPELLANTS/PETITIONERS: ----------------------------- 1. VINI, W/O.(LATE) VINODAN, AGED 34 YEARS 2. VIVEK (MINOR), AGED 12 YEARS, DATE OF BIRTH: 30.3.2000. 3. VYSAKH (MINOR), AGED 8 YEARS, DATE OF BIRTH: 16.11.2004 (MINORS ARE REPRESENTED BY THEIR MOTHER AND LEGAL GUARDIAN VINI.) 4. JANAKI AMMA, W/O.KUTTPPAN NAIR, 74 YEARS, ALL ARE RESIDING AT CHERADATH MEETHAL HOUSE, P.O.KAKKODI, KOZHIKODE. BY ADV. SRI.A.V.M.SALAHUDDEEN ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. CHANDRESH, S/O.CHANDRASEKHARAN, AGE NOT KNOWN, RESIDING AT 10/285, MELEKUMMANGOTTU HOUSE, P.O. KURUVATTOOR, KAKKODI, KOZHIKODE -673 611. 2. LALU @ SAVYA SAJI, S/O.MOHANAN, AGED 26 YEARS, RESIDING AT PULPARAMBIL HOUSE, P.O.KURUVATTOOR KAKKODI, KOZHIKODE - 673 611. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, SOBHA TSM COMPLEX RS ROAD, - (OPP.TOWN RAILWAY STATION ROAD, PALGHAT) - 678 001. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R3 BY ADV. SMT.LATHA SUSAN CHERIAN R3 BY ADV. SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.2229 of 2013 -------------------------------Dated 19[th ] February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The legal heirs of one Vinodan who died in a motor accident on 19.2.2012 at about 7.15 p.m. solicit enhancement of the quantum of compensation awarded by the Principal Motor Accidents Claims Tribunal Kozhikode, in this appeal. They were respectively the widow, the minor children and mother of deceased Vinodan and they filed O.P.(M.V) No.988 of 2012 claiming a total compensation of 10,64,000/-. In₹ support of their claim they got marked Exts.A1 to A6 and on the side of the respondents Exts.B1 and B2 which are respectively the copies of the policy and the Commercial Vehicles Package were marked. No oral evidence was adduced by both sides. The impugned award was passed by the Tribunal on analysis of the evidence on record and appreciation of the arguments advanced. As per the same, an amount of ₹ 6,27,000/- with interest at the rate of 8% per annum from the date of petition till the date of deposit, was granted. ## 2. We have heard the learned counsel for the appellants and the learned counsel appearing for the third respondent. Evidently, M.A.C.A.No.2229/2013 2 though notices were served on respondents 1 and 2 who are respectively the driver and owner of the offending vehicle they have not chosen to enter appearance and to contest the matter. 3. As noticed hereinbefore, the incident in which Vinodan lost his life occurred on 19.2.2012 at about 7.15 p.m. while he was riding his bicycle from Chalilthazham to Palath. When he reached near the place called Eledaththazham the offending vehicle which is a pickup van bearing Reg.No.KL-11-A-4855 dashed against the bicycle and consequently Vinodan sustained injuries and succumbed to them almost instantaneously. The deceased was aged 45 years at the time of the accident. In the claim petition it is contended that he was an Infrastructure Maintenance Worker in BSNL and was earning a monthly income of 7,286/-. The contention of the learned counsel for the₹ appellants is that despite such specific averments made in the claim petition the Tribunal took only an amount of 4,500/- as the notional₹ income for the purpose of fixing the compensation for loss of dependency. It is contended that the Tribunal erred in fixing the notional income at 4,500/- ignoring the aforesaid specific pleadings₹ made in the claim petition. It is further contended that towards funeral expenses an amount of 10,000/- was claimed and only an amount of₹ ₹ 8,000/- was granted by the Tribunal. Towards transportation to M.A.C.A.No.2229/2013 3 hospital, an amount of 2,000/- was claimed. However, the Tribunal₹ granted only 1,000/-. It is further contended that an amount of₹ ₹ 1,00,000/- was claimed as compensation under the head `loss of estate'. However, the Tribunal granted only 10,000/-. It is₹ contended that the Tribunal fixed the amounts claimed under the aforesaid heads so meagerly without any justification. The further contention is that the Tribunal granted only an amount of 10,000/-₹ towards loss of consortium as against a claim of 50,000/-. It is₹ submitted that the amount so fixed by the Tribunal is in total disregard to the dictum laid down by the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh (2013(3) KLT 89(SC)).** The learned counsel further contended that though an amount of 1,50,000/- was claimed as compensation₹ for loss of love and affection the Tribunal granted only 25,000/-. In₹ short, the contention of the learned counsel for the appellants is that the Tribunal fixed the compensation under different heads without properly taking into account all the relevant aspects and in the said circumstances, an appellate interference is called for. Per contra, the learned counsel for the third respondent contended that as per the impugned award the Tribunal awarded just compensation to the claimants for the death of Vinodan. It is further contended that the appellants had not made out any ground for substantiating their claim for giving a hike in compensation under any head. M.A.C.A.No.2229/2013 4 4. The main grievance of the appellants is with respect to the fixation of the monthly income of the deceased by the Tribunal at ₹ 4,500/-. It is contended that the Tribunal had not taken into consideration the specific pleadings in the claim petition to the effect that the deceased Vinodan was aged only 45 years at the time of the accident and he was working as an Infrastructure Maintenance Worker in BSNL and was earning an income of 7,286/- per month. At the₹ same time, it is evident that in support of such contentions the appellants have not produced any evidence at all, either oral or documentary. In such circumstances, we are of the considered view that the Tribunal cannot be said to have committed any error or illegality in fixing the monthly income of deceased Vinodan notionally. Then the question is whether fixation of the monthly income notionally at 4,500/- requires appellate interference ? Certain aspects have to₹ be considered in this regard. True that, the appellants/claimants have failed to adduce any evidence to prove the income of the deceased. At the same time, it is evident that the deceased was aged only 45 years at the time of the accident and evidently he was looking after the affairs of the family consisting of the appellants, four in number. Even if the deceased is treated only as a coolie the monthly income fixed has to be held as too low. The Hon'ble Apex Court in **Ramachandrappa v.** M.A.C.A.No.2229/2013 5 ## **Manager, Royal Sundaram Alliance Insurance Company Limited** **((2011) 13 SCC 236)** fixed the monthly income of a coolie as ₹ 4,500/-. It is to be noted that the accident involved in **Ramachandrappa's** case (supra) occurred in the year 2004 and the accident in the case on hand occurred on 19.2.2012 that is, after about 8 years. In such circumstances, the factors which were taken into account by the Hon'ble Apex Court in fixing the income of a coolie notionally in **Ramachandrappa's** case (supra) have to be looked into. Evidently, the price index and cost of living were taken into account and if those factors are taken into account with reference to the period in question, we have no hesitation to hold that an increase has to be made while fixing the monthly income notionally, in this case even if he is treated only as a manual labourer. Taking such factors into account, with reference to the relevant period we are of the view that the monthly income has to be fixed at 6,000/-. It is fixed accordingly. In₹ the light of the decision of the Hon'ble Apex Court in **Rajesh's** case (supra) the learned counsel for the appellants contended that even in the case of deceased self employed persons below the age of 40 years, there must be an addition of 50% to the actual income of the deceased reckoning the future prospects which he would have had but for his untimely death. The Apex Court also held that the addition should be 30% in case the deceased was aged between 40 to 50 years. M.A.C.A.No.2229/2013 6 Evidently, such view was taken after referring to the decision of the Hon'ble Apex Court in **Santosh Devi** v. **National Insurance Company Limited (AIR 2012 SC 2185).** It is to be noted that initially, it was in **Sarla Verma** v. **Delhi Transport Corporation (2010 (2) KLT 802 (SC))** that the Hon'ble Apex Court held that in the case of death of a salaried person with a permanent job an addition of 50% has to be made to the actual income while fixing the compensation for loss of dependency. Virtually, that position was considered by the Apex Court in **Santosh Devi's** case (supra) and benefit was extended to the case of self employed persons. Still further benefit was extended to self employed persons and persons with fixed wages by the Apex Court in **Rajesh's** case (supra). But, at the same time, the decisions in **Sarla Verma's** case and **Rajesh's** case (supra) are applicable to salaried persons or persons with fixed wages/self employed persons. In the strict sense, the position of a coolie is different from self employed persons. Needless to say that the question of getting employment rather, engagement in the case of such persons would depend upon the requirement and offer made by some others and in such cases it cannot be said that they are employed themselves rather, self employed persons and to get wages they are to be engaged by some others. At the same time, to cope up with hike in price index, cost of living etc., they may also be constrained to seek for increase in their wages. The M.A.C.A.No.2229/2013 7 upshot of the discussion is that even in respect of such persons reckoning future prospects an addition has to be made to the actual income. Taking into account such relevant aspects we are of the view that 30% addition can be made in such cases to the income reckoning the future prospects. In the light of the decision in **Sarla Verma's** case (supra) taking into account the number of dependants deduction towards personal expenses which the deceased would have incurred had he been alive. Since there are four dependents in this case 1/4[th] of the monthly income has to be deducted towards the personal expenses of the deceased. Taking into account such relevant factors and after effecting addition and deduction to the monthly income of 6,000/- the₹ amount of compensation payable towards loss of dependency on reassessment would be 9,82,800/-. After deducting the amount already₹ granted by the Tribunal viz., 5,67,000/- the appellants are entitled to₹ get an additional amount of 4,15,800/- under the said head. Towards₹ transportation to hospital the appellants claimed an amount of ₹ 2,000/- but, the Tribunal granted only 1,000/-. Taking into account₹ the distance between the place of accident and the Medical College Hospital and the fact that immediately after the incident he was taken to the Medical College Hospital and from there his body was taken home we are of the view that there is no justification for declining the entire amount claimed. In the said circumstances, the appellants are M.A.C.A.No.2229/2013 8 entitled to an additional amount of 1,000/- under that head. Towards₹ funeral expenses the appellants claimed 10,000/- and the Tribunal₹ granted 8,000/-. The learned counsel for the appellants contended₹ that in the light of the dictum laid down by the Hon'ble Apex Court in **Rajesh's** case (supra) the appellants are entitled to get an amount of 25,000/- for funeral expenses and the Tribunal ought to have₹ granted the same. True that, the appellants claimed only an amount of ₹ 10,000/- towards funeral expenses and the Tribunal granted ₹ 8,000/-. While considering the entitlement of the appellants to get more amount under the said head we will have to look into the decision of the Hon'ble Apex Court. The Apex Court considered the question in paragraph 21 of the decision in **Rajesh's** case (supra) and taking into account various factors, the Apex Court held as follows:- “Therefore, we are of the view that it will be just, fair and equitable, under the head of “Funeral Expenses”, in the absence of evidence to the contrary for higher expenses, to award at least an amount of 25,000/-.”₹ Obviously, the appellants had not adduced any evidence to establish that they are entitled to get more amount than 25,000/-. In the said₹ circumstances, in the light of the dictum laid down by the Apex Court and taking into account the amount already granted by the Tribunal M.A.C.A.No.2229/2013 9 under the said head we award an additional amount of 17,000/- to₹ the appellants under the said head. Towards `loss of consortium' the appellants claimed an amount of 50,000/- and the Tribunal granted₹ an amount of 10,000/-. In the light of the decision of the Hon'ble₹ Apex Court in **Rajesh's** case (supra) there can be little doubt with respect to the fact that only the spouse is entitled to get compensation under the head `loss of consortium'. In this case, rightly the Tribunal granted compensation under `loss of consortium' only to the first petitioner who is the wife of the deceased. At the same time, the Tribunal granted only an amount of 10,000/-. The Hon'ble Apex Court₹ in an unambiguous terms held that at least an amount of 1,00,000/-₹ shall be granted under the head `loss of consortium' in the absence of evidence of higher expenses. In the said circumstances, we are of the view that the first appellant/first claimant is entitled to get 90,000/-₹ more under the said head. It is granted. Towards loss of love and affection the appellants claimed 1,50,000/- and the Tribunal granted₹ ₹ 25,000/-. The learned counsel attempted to canvass the position that the Hon'ble Apex Court has laid down the law in **Rajesh's** case (supra) that an amount of 1,00,000/- has to be granted under the said head.₹ However, on a careful scrutiny of the said decision we could not find any such dictum laid down by the Hon'ble Apex Court in the matter of granting of compensation under the head `loss of love and affection'. M.A.C.A.No.2229/2013 10 But, at the same time, it is evident that in that case taking into account the fact there are two minors and they lost the love and affection of their father the Apex Court granted an amount of 1,00,000/-. In fact,₹ in that case, the mother and widow were the other claimants. Since the factual position obtained in **Rajesh's** case (supra) is similar to the one in the case on hand, we are of the view that under the head loss of love and affection an amount of 1,00,000/- can be granted. At the same₹ time, the Tribunal has already granted 25,000/-. In the said₹ circumstances, we award an additional amount of 75,000/- under the₹ said head. Though the learned counsel for the appellants contended that the Tribunal erred in restricting the compensation for pain and suffering to 5,000/- as against the claim of 50,000/- we are of the₹ ₹ view that the appellants cannot claim for any enhancement under the said head taking into account the fact that the accident occurred on 19.2.2012 at about 7.15 p.m. and the death occurred almost instantaneously. In the light of the re-assessment of the compensation under different heads the appellants are entitled to get an additional compensation of 5,98,800/-. It is awarded. The said amount will₹ carry interest at the rate of 8% per annum from the date of petition till realisation. The enhanced amount together with interest thereon shall be deposited by the third respondent within a period of three months from the date of receipt of copy of this judgment, failing which the M.A.C.A.No.2229/2013 11 amount remaining to be paid will carry interest at the rate of 9% per annum. We make it clear that the first appellant/first petitioner alone will be entitled to the additional compensation granted towards `loss of consortium'. The additional compensation granted towards `loss of love and affection' shall be apportioned between appellants 2 to 4. Appellants 2 and 3 shall be given 35,000/- each, out of it and the₹ balance, 5000/- shall be given to the 4₹ th appellant/4th petitioner. As regards the balance amount of additional compensation along with interest, we maintain the ratio fixed by the Tribunal for apportionment of the compensation among the appellants/claimants. We are also maintaining the liberty granted by the Tribunal to the 3[rd] respondent insurance company to pay and recover the awarded amount in terms of the provisions under Section 149(4) of the Motor Vehicles Act. The M.A.C.A. is disposed of accordingly. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS // true copy // P.S. To Judge