Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE20H DAY OF JULY201529TH ASHADHA, 1937 MACA.No.1360 of 2005 (C) ------------------------------ AGAINST THE AWARD IN OPMV22961999 of M.A.C.T., KOTTAYAM DATED3006-2003 ----- APPELLANTS/PETITIONERS: ------------------------------- 1. USHA.P.R., W/O.LATE PAVITHRAN, NIKARATHIL HOUSE, KOVILAKATHUM KADAVU BHAGOM VAIKOM P.O.
2. ANUSREE N.P. (MINOR), REP. BY HER MOTHER USHA P.R., W/O.LATE PAVITHRAN NIKARATHIL HOUSE, KOVILAKATHUM KADAVU BHAGOM VAIKOM P.O.
3. ANILKUMAR.N.P. (MINOR), REP. BY HER MOTHER USHA P.R., W/O.LATE PAVITHRAN NIKARATHIL HOUSE, KOVILAKATHUM KADAVU BHAGOM VAIKOM .P.O.
4. MANKA, AGED70YEARS, W/O.KRISHNAN, NIKARATHIL HOUSE, KOVILAKATHUM KADAVU BHAGOM VAIKOM P.O. BY ADV. SRI.SURIN GEORGE IPE RESPONDENTS/RESPONDENTS: ----------------------------------- 1. R.SREEKUMAR, EDATHU HOUSE, KALLARA P.O.
2. THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, CSI SQUARE BUILDING, BAKER JUNCTION KOTTAYAM.
3. GOPAKUMAR, S/O.DAMODHARAN, PERUMKALEL HOUSE, PUTHENPPALLY, KALLARA P.O. KADUTHURUTHY. R2 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON2007-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. R. RAMACHANDRA MENON & BABU MATHEW P. JOSEPH, JJ.
------------------------------------------------ M. A. C. A. No.1360 of 2005 ------------------------------------------------ Dated this the 20th day of July, 2015 JUDGMENT
P. R. Ramachandra Menon, J.
Inadequacy of the amount of compensation awarded by the Tribunal on the death of a pedestrian is the subject matter of challenge in this appeal.
2. Heard the learned counsel appearing for the appellants as well as the learned Standing Counsel appearing for the Insurance Company.
3. Going by the pleadings and proceedings, no case is established on the part of the insurer as to the absence of driving licence. In so far as coverage is admitted, we dispense with service of notice to the first and second respondents.
4. The accident occurred on 23/10/1999 when a bus M. A. C. A. No.1360 of 2005 -2- bearing registration No.KL-7C/2739 driven by the third respondent and owned by the first respondent hit against the husband of the first appellant by about 11.30 a.m. while he was standing on the side of the road. Though he was immediately taken to the hospital, the life could not be saved and he succumbed to the injuries. This led to the claim petition preferred by the legal heirs of the deceased. The first and third respondents chose to remain ex parte. Written statement was filed by the insurer contending that there was no valid driving licence for the driver; which however was not substantiated by adducing any evidence. The dispute was more with regard to the quantum as discussed by the Tribunal who awarded amounts under various heads coming to a total of 2,34,500/- which was ordered to be satisfied by the insurance company with interest at the rate of 9% per annum.
5. During the course of hearing, learned counsel M. A. C. A. No.1360 of 2005 -3- appearing for the appellants submits that the deceased was working as a 'fisherman' and was having membership in the concerned welfare fund. It is stated that he was also having some avocation connected with tyre retreading. The Tribunal reckoned only a sum of 1,700/- per mensem as the notional income and worked out the dependency granting a sum of 2,04,000/-. The amounts awarded by the Tribunal under various heads are as follows: Heads of compensation (in ) Loss of dependency 2,04,000 Pain and suffering 5,000 Loss of consortium, love and affection 20,000 Funeral expenses 2,000 Transportation 1,000 Treatment expenses 2,500 Total 2,34,500 6. After hearing both the sides, this Court finds that the quantum of compensation awarded by the Tribunal is quite inadequate in so far as the monthly income of the deceased M. A. C. A. No.1360 of 2005 -4- has been reckoned at a much lower level, ignoring the fact that the deceased was a person maintaining his family consisting of his wife, two minor children and also the aged mother. Considering the nature of the pleadings raised and the available materials, we find that the monthly income of the deceased has to be taken at the rate of 2,500/-. Going by the principle of law enunciated by the Apex Court and also taking note of the number of members in the family, we find that deduction of 1/4th for the personal expenses is enough, in the place of 1/3rd ordered by the Tribunal. We recompute the compensation as given above and award a sum of 3,37,500/- (2500x12x15x3/4) towards loss of dependency. Thus, the appellants are entitled to get a balance sum of 1,33,500/- under this head, after giving credit to the sum of 2,04,000/- awarded by the Tribunal.
7. We find that the amount of 5,000/- awarded by the Tribunal towards pain and suffering is very low and we M. A. C. A. No.1360 of 2005 -5- enhance the same to 7,500/-. Thus the appellants are entitled to get an additional sum of 2,500/- towards this count. We see that only a sum of 20,000/- has been awarded by the Tribunal towards loss of consortium and love and affection. We refix the amount and award a sum of 30,000/- as loss of consortium payable to the first appellant and towards loss of affection, we award a sum of 30,000/- in respect of the three members of the family. Thus, towards loss of consortium and loss of affection, the appellants are entitled to get an additional sum of 40,000/-. We award an additional sum of 3,000/- towards funeral expenses. Towards transportation and treatment expenses, we find that the amount awarded by the Tribunal is meagre. Hence, we award an additional sum of 5,000/- towards these heads together.
8. Thus the appellants are entitled to get a compensation of 1,84,000/- over and above the amount M. A. C. A. No.1360 of 2005 -6- already awarded by the Tribunal. The enhanced amount of compensation shall carry interest at 9% per annum from the date of application till realisation. The insurance company is directed to satisfy the amount with interest within one month from the date of receipt of a copy of this judgment. This appeal is allowed in part. No costs. Sd/- P. R. RAMACHANDRA MENON JUDGE Sd/- BABU MATHEW P. JOSEPH JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A. No.1360 of 2005 -7-