IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 MACA.No. 372 of 2009(A) ----------------------- OPMV.1220/2002 of PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE APPELLANT(S): PETITIONERS ------------------------ 1. V.M.SUMATHY, AGED 45 YEARS, W/O.LATE HARIDASAN, THINDACHERI HOUSE, P.O.PUTHUR, VATAKARA-4, KOZHIKODE DISTRICT. 2. KUMARI.T.H.HARITHA, D/O.HARIDASAN, THINDACHERI HOUSE, P.O.PUTHUR, VATAKARA-4, KOZHIKODE DISTRICT. 3. KUMARI.T.H.HANI, D/O.HARIDASAN, AGED 19 YEARS,THINDACHERI HOUSE, P.O.PUTHUR, VATAKARA-4, KOZHIKODE DISTRICT. 4. T.H.HARILAL, S/O.HARIDASAN, AGED 17 YEARS, THINDACHERI HOUSE, P.O.PUTHUR, VATAKARA-4, KOZHIKODE DISTRICT. 5. SMT.M.PARU, AGED 83 YEARS,YESODARA BHAVAN, P.O. PUTHUR, VATAKARA-4. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): RESPONDENTS -------------------------- 1. SMT.T.K.PREMALATHA, THACHAN KANDIYIL HOUSE, P.O.NADAPURAM (VIA) VATAKARA, KOZHIKODE DISTRICT. 2. M/S.UNITED INDIA INSURANCE CO.LTD., CITY BRANCH, RAMEEZ ARCADE, NEAR C.H.FLY OVER, CHEROOTY ROAD, CALICUT-32. ADVS. SRI.B.KRISHNAN FOR R1 SRI.R.PARTHASARATHY FOR R1 SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 372 OF 2009 --------------------------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT Basant, J. The claimants before the Tribunal are the appellants before us. They claimed compensation for the loss suffered by them on account of the death of the deceased in a motor accident which took place on 10.11.2001. It was contended that the deceased was a person aged 51 years. He was employed as a Head Clerk in the Public Works Department of the Government of Kerala. He suffered injuries on 10.11.2001 and succumbed to the injuries after a period of ten days. The claimants are his wife aged 40 years, minor daughters aged 17 years and 14 years, minor son aged 12 years and mother aged 78 years. They claimed a total amount of Rs.9,74,720/- as compensation. The Tribunal had before it no oral evidence. Exts.A1 to A5 were marked. 2. The Tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellants are entitled to a total amount of Rs.1,89,000/- as compensation as per the details given in paragraph 7 of the impugned award which we extract below: M.A.C.A. NO. 372/2009 2 i. Dependency (2500x12x2/3x8 : Rs.1,60,000/- ii Medical treatment including hospitalisation : Rs. 10,000/- iii Consortium : Rs. 10,000/- iv Funeral : Rs. 2,000/- v. Transportation : Rs. 2,000/- vi. Pain and suffering : Rs. 5,000/- Total : Rs.1,89,000/- The said amount was directed to be paid along with interest at the rate of 6% per annum. 3. The appellants claim to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellants want to mount against the impugned award, learned counsel for the appellants assails the impugned award on various grounds. 4. First of all, it is contended that interest has been awarded only at the rate of 6% per annum. Relying on precedents, counsel contends that interest must have been awarded at least at the rate of 7.5% per annum. We agree with the learned counsel. M.A.C.A. NO. 372/2009 3 5. Counsel then contends that only Rs.5,000/- has been awarded under the head pain and suffering. The appellant suffered injuries. He endured pain and suffering for a period of ten days. The nature of the injuries can be seen from the post mortem report marked as Ext.A2. We are satisfied that there is merit in the challenge against the quantum of compensation awarded under the head pain and suffering. In the circumstances, we are satisfied that an amount of Rs.15,000/- can be fixed as fair and just amount for pain and suffering endured by the deceased. 6. The first claimant/wife was aged 40 years. This is evident from the heirship certificate issued which was marked as Ext.A4. The deceased was aged 51 years. Authentic documents to prove the age of the deceased were not produced before the Tribunal. There was specific assertion that the deceased was continuing as a Government servant . There was no denial of that assertion. Learned counsel for the appellants submits that in any view, it can be safely assumed that the deceased was below 55 years. To settle the controversy on that aspect, Annexure A1 document has been produced before this Court. That shows the date of birth of the deceased as 19.10.1950. This confirms the assertion that the age of the deceased at the time of his death was 51 years. Only an amount of Rs.10,000/- was M.A.C.A. NO. 372/2009 4 awarded as compensation for loss of consortium. We are satisfied, in the facts and circumstances of the case, that an amount of Rs.20,000/- can reasonably be fixed as quantum of compensation for loss of consortium to the first claimant/wife. 7. Counsel raises a grievance that no amount has been granted under the head loss of love and affection. The deceased is survived by his wife, three minor children as also the aged mother. We are satisfied that an amount Rs.15,000/- can be awarded as compensation for loss of love and affection. 8. Counsel raises a grievance that no amount has been awarded under the head loss of estate. While computing the compensation payable for loss of dependency, only one-third of the total amount will be set apart for the personal expenses of the deceased. He must have saved some amount out of this amount set apart for personal expenses. That alone could have been the accretion to the estate. We are satisfied, in these circumstances, that the ends of justice can be met adequately by awarding Rs.2,500/-, even in the absence of better evidence, as compensation for loss of estate. M.A.C.A. NO. 372/2009 5 9. The main plank of challenge is against the quantum of compensation fixed for loss of dependency. The deceased was aged 51 years and was a Government servant. He was expected to have continued in service for four years more under the Government of Kerala. He would have been eligible to draw salary during that period. It is easy to assume that the appellants have been deprived of their share of the earnings of the deceased as a Government employee during that period. 10. The next question is about the monthly income reckoned by the Tribunal. Ext.A5 was produced before the Tribunal and that shows that the monthly income of the deceased was Rs.9,276/-. Rs.6,800/- is the basic pay and Rs.300/- is the H.R.A. Dearness Allowance fluctuates and the same is shown to be Rs.2,176/- in Ext.A5. The Tribunal did not accept this because the certificate issued under the seal of the Assistant Executive Engineer did not bear the date of issue of the certificate. The Tribunal thus came to the conclusion that Rs.2,500/- can be reckoned as the monthly income of the deceased. The learned counsel laments that the approach made by the Tribunal is not justified and not becoming of a functionary entrusted with the task of rendering rough and ready justice. We are in agreement with the leaned counsel. The appellants have now produced Ext.A2 salary certificate before this Court which shows the salary particulars of the deceased as in November, 2001 (the accident was on M.A.C.A. NO. 372/2009 6 10.11.2001). Ext.A2 shows that the deceased was drawing a salary of Rs.10,160/- per month, his basic pay was Rs.6,800/-, H.R.A. Rs.300 and the fluctuating Dearness Allowance for the month of November, 2001 was Rs.3,060/-. We are satisfied, in these circumstances, that the monthly income of the deceased till his date of retirement can safely be reckoned at Rs.10,000/-. 11. The deceased would have retired from service at the age of 55 years. It is only reasonable to assume that at the age of 55 he would have taken up some employment and would have been able to continue to make earnings. We are satisfied, in the circumstances, that Rs.2,000/- can be reckoned as the probable monthly earnings of the deceased after retirement. 12. The above discussions lead us to the conclusion that the appellants are entitled to the following further amounts as compensation in addition to the amount already awarded by the Tribunal: i. Pain and suffering (Rs.15,000 minus 5000) : Rs. 10,000/- ii. Loss of consortium (Rs.20,000 minus 10,000) : Rs. 10,000/- iii. Loss of love and affection M.A.C.A. NO. 372/2009 7 (no amount awarded) : Rs. 15,000/- iv. Loss of estate (no amount awarded) : Rs. 2,500/- v. Loss of dependency (Rs.10,000x47x2/3) plus (Rs.2,000x12x7x2/3) minus Rs.1,60,000/- (i.e. Rs.3,13,333/- plus Rs.1,12,000 minus Rs.1,60,000/- : Rs.2,65,333/- ------------------- Total : Rs.3,02,833/- ------------------- We further direct that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the petition till the date of realisation. 13. The appeal is allowed in part to the above extent. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO. 372/2009 8 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.372/2009 JUDGMENT 25th March, 2009