Zeenath Muhammed & Others v. Vasudevan Pillai, Babu Jacob M. Joseph & National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 MACA.No. 1485 of 2011-E ----------------------OPMV.235/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANTS: PETITIONERS ------------------------- 1. ZEENATH MUHAMMED,W/O.LATE MUHAMMED SHERIF,SHERIEF POONTHANATHU VADAKKATHIL, (KAITHAKOTTIYATHU KIZHAKKATHIL)ADIKATTUKULANGARA, PALAMEL VILLAGE. 2. ANEESH,S/O.LATE MUHAMMED SHERIF, SHERIEF POONTHANATHU VADAKKATHIL, (KAITHAKOTTIYATHU KIZHAKKATHIL)ADIKATTUKULANGARA PALAMEL VILLAGE. 3. ANEESHA,D/O.LATE MUHAMMED SHERIF, SHERIEF POONTHANATHU VADAKKATHIL, (KAITHAKOTTIYATHU KIZHAKKATHIL)ADIKATTUKULANGARA PALAMEL VILLAGE. 4. ANCY.M.,D/O.LATE MUHAMMED SHERIF, SHERIEF POONTHANATHU VADAKKATHIL, (KAITHAKOTTIYATHU KIZHAKKATHIL)ADIKATTUKULANGARA PALAMEL VILLAGE. BY ADV. SRI.T.K.KOSHY SMT.V.V.RISANI RESPONDENTS: RESPONDENTS -------------------------- 1. VASUDEVAN PILLAI,VARIYADATHU VEEDU, PERINGARA PO, THIRUVALLA. 2. BABU JACOB M.JOSEPH, MATTACKAL HOUSE,KARAKAL PO,THIRUVALLA. 3. THE BRANCH MANAGER,NATIONAL INSURANCE CO.LTD.,THIRUVALLA. ADV. SRI.P.JAYASANKAR FOR R-3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 1485 OF 2011 ============================** ## **Dated this the 24[th] day of October 2011** ## **JUDGMENT** ## **R.Basant, J.** Claimants are the appellants. They are the widow and three minor children of deceased Muhammed Sheriff who suffered injuries in a motor accident which took place on 27/5/2000 and succumbed to said injuries later on the same day after he was shifted to the hospital. The deceased, it was claimed was carrying on business of sale of beds/mattresses. There is nothing to show that he was running any shop dealing in beds. A certificate was produced to indicate that he was purchasing beds from a shop/agent and that in the opinion of such shop keeper/agent he was earning an income of Rs.5,000/per mensem. 2. Against a total claim of Rs.5 lakhs, the Tribunal awarded a total amount of Rs.3,16,000/- as compensation as per the details given in paragraph 10 of the impugned award which we extract below: MACA 1485/2011 2 1) Funeral expenses :Rs.4,000/2..Ambulance charges :Rs. 3,500/3. Damage to clothing :Rs. 500/4. pain and suffering :Rs. 5,000/5. Loss of dependency :Rs.2,88,000/-(2400x12x2/3x15) 6. Loss of consortium :Rs.10,000/7.Loss of estate :Rs. 5,000/8.Mental shock and agony : Nil Total :Rs.3,16,000/- 3. We have heard the learned counsel for the appellants and the learned counsel for the respondent-Insurance company. The Insurance company has been made entirely liable under the impugned award. 4. Called upon to explain and be specific, the learned counsel for the appellants submits that the appellants want to challenge only the quantum of compensation awarded by the Tribunal. The learned counsel first of all contends that the amount of compensation awarded under the head of pain and suffering is too low. Considering the nature of injuries and the period of time that the deceased survived after the incident,the amount of compensation awarded under the head of pain and MACA 1485/2011 3 suffering (Rs.5,000/-) is totally inadequate, contends counsel. We agree and we are satisfied that Rs.10,000/- can be awarded under that head. 5. Learned counsel for the appellants then contends that under the head of loss of consortium, only an amount of Rs.10,000/- has been awarded notwithstanding the fact that the deceased was aged 39 years and first claimant wife was aged 35 years. We agree that the amount awarded under the head of loss of consortium deserves to be enhanced. Rs.20,000/- can safely be fixed as the quantum of compensation payable under this head. 6. Learned counsel for the appellants points out that though the three minor children were deprived of the love and affection and support of the deceased, no amount whatsoever has been awarded under that head. We agree with the learned counsel and we are satisfied that an amount of Rs.15,000/deserves to be awarded in all under the head of loss sof love and affection. MACA 1485/2011 4 7. Learned counsel for the appellants has trained all guns against the finding of the Tribunal that only an amount of Rs.2400/- can be reckoned as the monthly income. Learned counsel for the appellants submits that this is totally unrealistic. Four souls, in addition to the deceased were depending upon his earnings from his employment to keep body and soul together. The prospects of improvement in his avocation must also have been taken into account. In any view of the matter, the amount of Rs.2400/- reckoned as monthly income is grossly insufficient, contends counsel. Learned counsel points out the precedents in **Lata Wadhwa & Others. v. State of Bihar & Others,[A.I.R.2001 S.C. 3218]** and **Laxmi Devi v. Mohammad Tabbar[2008 A.C.J. 1488]** to contend that the Tribunal should not have reckoned anything below Rs.3,000/even in the case of a non earning home maker or even an unskilled manual worker. Learned counsel points out that there are overwhelming circumstances to indicate from the inquest report of Ext.A2 that the deceased was carrying on business in beds and mattresses. 8. We do note that crisp and proper evidence is not available. Considering the totality of the circumstances into MACA 1485/2011 5 account, we are satisfied that Rs.3,250/- can be reckoned as the monthly income of the deceased for the purpose of ascertaining the compensation for loss of dependency. 9. Learned counsel for the appellants then contends that the wife and three minor children were depending on the deceased. The number of dependents on the income of the deceased exceeded 5 (including the deceased, his wife and three minor children)Counsel argues and we agree that following the dictum in **Sarla Verma v. Delhi Transport Corporation [ (2009)6 S.C.C.121],** paragraph 30 ,1/4[th] and not 1/3[rd] should have been deducted towards personal expenses of the deceased. 10. On the basis of the above discussions, we come to the conclusion that the appellants are entitled to a further amount of Rs.1,80,750/-as compensation as per the details shown below in addition to the amount awarded by the Tribunal. 1)Pain and suffering :Rs.5,000/--(10000 minus 5000) 2)Loss of consortium :Rs.10,000/(20,000 minus 10,000) 3) Loss of love and affection:Rs.15,000/(no amount awarded by the Tribunal) MACA 1485/2011 6 Loss of dependency : Rs.1,50,750.00 (3250X12X15X3/4 = 4,38,750 minus 2,88,000) .......................... Total : Rs.1,80,750/========== 11. We are not persuaded to agree that the quantum of compensation awarded under any other head deserves or warrants appellate interference. 12. The learned counsel for the appellants finally contends that the Tribunal erred in not awarding any cost. The learned counsel argues and we agree that proportionate cost in the proceedings before the Tribunal on the entire amount of compensation as ascertained by following the dictum in **Jeena V. Satheesh Babu.K** [2011(3) KLT 943] is liable to be paid. ## 13. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.1,80,750 /- (Rupees one lakh eighty thousand seven hundred and fifty only ) in addition to the amount already awarded by the Tribunal under the impugned award; MACA 1485/2011 7 c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) Proportionate cost shall be calculated, we clarify, as held in **Jeena V. Satheesh Babu.K** [2011(3) KLT 943]; e) All other directions of the Tribunal are upheld. ## **R.BASANT, JUDGE** **M.C. HARI RANI,JUDGE** ks. MACA 1485/2011 8