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 8TH AUGUST 2011 / 17TH SRAVANA 1933 MACA.No. 1294 of 2006(A) ----------------------- OPMV.500/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANTS/PETITIONERS: ------------------------------------- 1. REENA W/O. LATE SUNNY, KALLINGAL HOUSE, PUTHUR VILLAGE, PONNUKKARA. 2. MINOR FIYA AGED 13, D/O. LATE SUNNY, DO. DO. 3. MINOR SIYA, AGED 10, DO. DO. MINORS 2 & 3 REPRESENTED BY THE MOTHER AND GUARDIAN 1ST APPELLANT REENA. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): --------------- 1. P.K. SYLASAN, POOVANPARAMBIL HOUSE, KIZHAKKUMPATTUKARA. 2. SULAIMAN POPAKILLATH HOUSE, OLLUKKARA VILLAGE, MULLAKARA DESOM. 3. THE MANGAR NEW INDIA ASSURANCE COMPANY LTD., PERINCHERY BUILDINGS THRISSUR NORTH. ADV. SMT.A.SREEKALA FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1294 of 2006-A ***************************** Dated this the 8th day of August, 2011 JUDGMENT BASANT, J. Claimants are the appellants. They are the wife and two minor children, aged 32, 7 and 4 years respectively. They claimed compensation for the loss suffered by them as a result of the death of their husband/father, who succumbed to the injuries suffered in a motor accident which took place on 11.12.1999. Against a total claim of Rs.8 lakhs, the Tribunal awarded a total amount of Rs.4,15,500/- as per the details shown below: i) Hospital and transport expenses : Rs. 1,000.00 ii) Funeral expenses : Rs. 2,000.00 iii) Loss of consortium : Rs. 8,000.00 iv) Loss of love and affection : Rs. 12,000.00 v) Pain and suffering : Rs. 6,000.00 vi) Loss of dependency : Rs.3,84,000.00 (3000 X 2/3 X 12 X 16) v) Loss of estate : Rs.2,500.00 ---------------------- Total : Rs.4,15,500.00 ========= M.A.C.A No.1294 of 2006-A 2 2. The said amount was directed to be paid along with interest @ 6% per annum. 3. We have heard the learned counsel for the appellants/claimants and the learned counsel for the insurance company. The challenge is raised only against the quantum of compensation awarded. 4. Called upon to explain and be specific, the learned counsel for the appellants first of all submits that the total amount of Rs.3,000/- (2000 + 1000) awarded under the head of funeral expenses, transportation etc. is too insufficient and unrealistic. It is then contended that the amount of Rs.8,000/- awarded under the head of loss of consortium for the wife, aged 32, years is painfully low. The amount of compensation awarded under the head of loss of love and affection for the widow and two minor children (total Rs.12,000/-)is also insufficient, it is urged. 5. The learned counsel for the appellants has trained all his guns against the monthly income of the deceased reckoned by the Tribunal as Rs.3,000/-. The unassailable documents available in this case must have satisfied the Tribunal that the income could, by no stretch of imagination, be held to be below M.A.C.A No.1294 of 2006-A 3 Rs.4,000/-, contends counsel. He was employed as a conductor in a bus owned by his brother. Salary certificate shows the income to be much higher. Be that as it may, Ext.X1 series documents in relation to his employment as a conductor in a bus maintained by the Kerala Motor Transport Workers Welfare Fund must have been held to be absolutely sufficient to come to a conclusion that the annual income of the deceased was above Rs.45,000/-, contends counsel. 6. We have considered all the relevant inputs. The accident took place on 11.12.1999. Deceased was a person aged 38 years. At the relevant time he was driving a tempo van which allegedly was belonging to him. The claimants, his legal heirs, had claimed compensation for the damage suffered by the said vehicle. That claim was also disposed of along with the claim for compensation in respect of the death. Ext.X1 series do all relate to the period 1999-2000. Evidently those documents have come into existence after the death of the deceased. Employer of the deceased is none other than his own brother. Further, indisputable indications available suggest that at the time of the accident the deceased was not working as a conductor in any bus, but was driving his own vehicle. The possibility that Ext.X1 M.A.C.A No.1294 of 2006-A 4 series documents may have been manipulated subsequent to the death of the deceased in collusion with the brother of the deceased cannot, of course, be ruled out. But all the same, ignoring Ext.X1 series we have evidence to suggest that he was a qualified driver and was owning a tempo van. We must also remind ourselves that as early as in 1994, law under the Second Schedule to the Motor Vehicles Act permits a presumption of prudence that all non earning persons can also deemed to earn an amount of Rs.1,250/- per mensem. In the totality of circumstances available in this case, we are of opinion that an amount of Rs.4,000/- can safely be reckoned as the monthly earning of the deceased. In coming to this conclusion, we do not mechanically swallow Ext.X1 series documents. However, we deem it appropriate to take note of the indisputable circumstance that the deceased was owning a vehicle and was driving the same as a driver at the relevant time. These inputs embolden us to conclude that it would be safe to assume that the deceased was earning a monthly income of Rs.4,000/-. In the absence of very convincing documents to prove the precise income, the Tribunal should not hesitate to draw reasonable inferences from proved circumstances. It will always have to be M.A.C.A No.1294 of 2006-A 5 borne in mind that for absence of crisp, cogent and authentic evidence, it is only the claimants who will be put to suffer. Even then we feel that it would be absolutely reasonable to assume that a minimum income of Rs.4,000/- must have been earned by the deceased, who was the earning member in a 4 member family including himself, his wife and 2 minor children. 7. We find merit in the contention that the total amount of Rs.3,000/- awarded under the composite head of funeral expenses and transportation is inadequate. Further we note that the amount of Rs.8,000/- awarded under the head of loss of consortium also deserves upward modification/enhancement. 8. The learned counsel for the insurance company points out that 16 has been reckoned as the multiplier for the deceased, a person of the age group above 35 upto 40 years. 15 is the multiplier to be adopted following the dictum in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], it is pointed out and we agree. 9. The above discussions lead us to the conclusion that the appellants are entitled to the following further amounts as compensation in addition to the amounts awarded by the Tribunal. M.A.C.A No.1294 of 2006-A 6 i) Funeral, transportation and hospital expenses : Rs.2,000.00 (5000 minus 3000) ii) Loss of consortium : Rs.7,000.00 (15,000 minus 8,000) iii) Loss of dependency : Rs.96,000.00 [(4000 X 12 X 2/3 X 15=4,80,000) minus 3,84,000] ---------------------- Total : Rs.1,05,000.00 ========= 10. The learned counsel for the appellants prays and we agree that interest can be awarded @ 7.5% per annum. 11. In the result: a) This appeal is allowed in part; b) We hold that the appellants are entitled to an amount of Rs.1,05,000/- (Rupees One lakh and five thousand only) in addition to the amount already awarded by the Tribunal; c) We direct that the entire amount of compensation shall carry interest @ 7.5% from the date of the claim to the date of payment/realisation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/