IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 MACA.No. 2179 of 2007() ----------------------- OPMV.858/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.P.V.JYOTHI PRASAD SRI.K.G.JOSEPH ANTONY RESPONDENT(S): PETITIONERS 1 TO 4 & RESPONDENTS 1 & 2 ----------------------------------------------------- 1. K.SANTHAKUMARAN, S/O PARANGODAN, AGED ABOUT 52 YEARS, RESIDING AT KANCHINGAD, VENGASSERI POST, AMBALAPPARA VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. DEVAKI, W/O SANTHAKUMARAN, AGED ABOUT 44 YEARS, -DO- -DO-. 3. RAVIDASAN, S/O SANTHAKUMARAN, AGED ABOUT 26 YEARS, -DO- -DO- 4. REMADEVI, D/O SANTHAKUMARAN, AGED ABOUT 19 YEARS, -DO- -DO-. 5. M/S G.RAMAMOHAN RAO & COMPANY, REP. BY RAMAMOHAN RAO, H.NO.60-16-2, SIDDARDHA NAGAR, VIJAYAWADA-10, KRISHNA DISTRICT, ANDHRA PRADESH-520010. 6. VELISELA MADHU, S/O BASWA RAO, AGED ABOUT 38 YEARS, MALA, NEAR ANJENEYA SWAMY TEMPLE, MACHAVARAM, VIJAYAWADA, ANDHRA PRADESPH. ADV. SRI.O.P.NANDAKUMAR FOR R1 TO 4 SRI.V.A.AJAI KUMAR FOR R1 TO 4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.A.C.A. No.2179 of 2007-D ------------------------------------------------- Dated this the 4th day of August, 2011 JUDGMENT Basant,J. Insurance Company is the appellant. The claimants - parents aged 50 years and 42 years, an adult brother aged 24 years and a minor sister aged 17 years, claimed compensation for the loss suffered by them on account of the death of their son/ brother who suffered injuries in a motor accident which took place on 1/7/2004 at a distant place at Kesanupalli on the Madras - Andhra Pradesh border. He was working as a Cleaner in a lorry. It was claimed that the deceased was earning an income of `200/- per day. He was the holder of a passport - Ext.A6 also. Against a total amount of `10,00,000/- claimed by the claimants, the Tribunal awarded an amount of `5,15,000/- as per the details given in para-10 of the award which we extract below: M.A.C.A. No. 2179 of 2007 -: 2 :- Loss of dependency - `4,68,000/- (4500 x 12 x 2/3 x 13) Loss of love and affection - ` 35,000/- Travelling expenses - ` 8,000/- Funeral expenses - ` 4,000/- ---------------- Total - `5,15,000/- ======= 2. The insurer is the appellant. The amount awarded is challenged on the short ground that the quantum of compensation awarded under the heads of loss of dependency and loss of love and affection are excessively high. No other contentions are raised. 3. The learned counsel for the appellant points out that the monthly income of the deceased reckoned at `4,500/- is excessive. No materials were produced in support of that assertion. The Tribunal lightly assumed that the deceased must have been earning an amount of `200/- per day. From that the Tribunal proceeded to the conclusion that the monthly income must have been `4,500/-. Thereafter, only 1/3rd of the monthly income was reckoned as personal expenses of the deceased. Thereafter 18 was reckoned as the multiplier taking into account the age of the deceased. The learned counsel for the appellant contends that the quantum of monthly income and personal M.A.C.A. No. 2179 of 2007 -: 3 :- expenses reckoned by the Tribunal do call for interference. 4. The learned counsel for the appellant then contends that the amount of compensation awarded under the head of loss of love and affection - `35,000/- is grossly excessive. Ordinarily, a notional amount alone ought to have been awarded under that head. At any rate, there is no justification for award of such an unrealistic higher amount under the head of love and affection, submits the learned counsel for the appellant. 5. The learned counsel for the respondents, on the contrary, contends that the Tribunal had taken all the relevant inputs into account. At any rate, a total amount of `5,15,000/- awarded by the Tribunal cannot be said to be an amount which is unjust or unreasonable. Taking all the relevant inputs into account, the amount of `5,15,000/- against the claim of `10,00,000/- awarded by the Tribunal must be held to be fair, reasonable and just, contends counsel. 6. The learned counsel for the claimants, first of all, submits that the Tribunal ought to have realistically taken note of the assertion of the claimants that the deceased was earning an income of `6,000/- per mensem. He was aged 23 years only. He was unmarried. He was working as a lorry Cleaner. He had a M.A.C.A. No. 2179 of 2007 -: 4 :- passport issued in his name. Industrious and hardworking nature of the deceased is borne out of the relevant inputs including the indisputable circumstance that the deceased had gone out of the State in connection with his employment. All these must have conveyed to the court a reasonable idea of the sense of industry and the hardworking nature of the deceased. His future prospects must also have been taken into account. At any rate, after accepting that the daily income of the deceased would be `200/-, the Tribunal erred in unrealistically reckoning the multiplicand as `4,500/-. Even going by the calculation adopted by the Tribunal for 30 days of the month, `6,000/- should have been taken as the monthly income. Even assuming that 5 days every month were consumed as holidays, `5,000/- should, at any rate, have been reckoned as the monthly income of the deceased, argues the counsel. 7. The learned counsel further argues that the amount awarded under the head of love and affection cannot also be held to be excessive considering the fact that a family of 4 including his father aged 50 years, mother aged 42 years, minor sister aged 17 years and the brother aged 24 years were all depending on him. The learned counsel further argues that even assuming that M.A.C.A. No. 2179 of 2007 -: 5 :- the amount awarded under the head of loss of love and affection can be held to be marginally higher, this Court cannot lose sight of the fact that the Tribunal had not awarded any amount under the head of pain and suffering and loss of estate. A total amount of `12,000/- alone has been awarded under the head of transportation expenses and funeral expenses. This does not realistically take into account the fact that the deceased had met with his death at a distant place on the Andhra Pradesh - Tamil Nadu border where he had gone in connection with his employment. At any rate, the amount of `35,000/- awarded under the head of loss of love and affection does not warrant interference taking into account these realities, contends counsel. 8. The learned counsel then points out that the Tribunal has grossly erred in directing payment of interest only prospectively from the date of default. The relevant direction issued by the Tribunal is only that the appellant/insurer shall pay to the claimants the amount awarded within 30 days from the date of receipt of a copy of the award failing which the claimant was permitted to recover the same along with 6% interest thereafter. This is again not just and reasonable. If this Court were to interfere with the award, fresh calculation may be made and the M.A.C.A. No. 2179 of 2007 -: 6 :- amounts legally admissible may be awarded, submits the learned counsel for the appellant. 9. We have considered all the relevant inputs. We are in complete agreement with the learned counsel for the appellant/ insurer that half the amount must have been deducted towards personal expenses of the deceased, a young bachelor who was compelled to undertake journeys in connection with his employment to far off places. On that aspect we agree with the learned counsel that half the amount must have been deducted towards personal expenses of the deceased as held by the Supreme Court in Sarla Verma v. DTC ((2009) 6 SCC 121). 10. But we find merit in the contention that the Tribunal has erred in reckoning the monthly income of the deceased as `4,500/- after coming to the conclusion that the daily income must have been `200/-. We are satisfied that, at least, `5,000/- must have been reckoned as the monthly income. It is true that under the head of loss of love and affection, an amount `35,000/- has been awarded. This is higher than the amount awarded under this head conventionally. But we do take note of the fact that under the head of pain and suffering and under the head of loss of estate no amount has been awarded by the Tribunal. We M.A.C.A. No. 2179 of 2007 -: 7 :- are satisfied that the amount of `35,000/- awarded under the head of loss of love and affection can be reckoned as amount payable under the composite head of loss of love and affection, pain and suffering and loss of estate. No interference with that amount awarded need hence be made in this view of the matter. 11. Under the head of loss of dependency, we are satisfied that the Tribunal has erred in not taking one half towards the personal expenses of the deceased. We are hence of the opinion that the amount payable under the head of loss of dependency deserves to be re-worked. We are satisfied that `5,000/- can be reckoned as the monthly income. Half has to be reduced for personal expenses. Considering the age of the younger of the two parents, we are satisfied that 14 and not 13 must be reckoned as the multiplier considering the general directions issued by the Supreme Court in Sarla Verma (supra). That means that the claimants would be entitled to an amount of `4,20,000/- (Rupees four lakhs and twenty thousand only) as compensation under the head of loss of dependency. That, in turn, means that an amount of `48,000/- (Rupees forty eight thousand only) over and above the legitimate entitlement has been awarded to the claimants. The amount awarded under this M.A.C.A. No. 2179 of 2007 -: 8 :- head will accordingly have to be reduced as shown below: Loss of dependency - `4,20,000/- (5000 x 12 x ½ x 14) 12. We do find merit in the contention that the interest awarded is painfully low. We agree that interest must have been awarded at the rate of 7.5% per annum. We are also of the opinion that the Tribunal has erred in not directing payment of interest from the date of the petition. Since we are interfering with the amount awarded by the Tribunal, we are of the opinion that the direction regarding interest also deserves interference. The claimants are entitled interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. It is trite that in an appeal, the respondent is entitled to support the impugned order in his favour on any other ground without himself filing any appeal or cross-appeal. 13. In the result: (a) This appeal is allowed in part. (b) The impugned award is modified. (c) In supersession of the direction in the impugned award, it is directed that the claimants shall be entitled only to an amount of `4,20,000/- (Rupees four lakhs and twenty thousand M.A.C.A. No. 2179 of 2007 -: 9 :- only) under the head of loss of dependency. (d) We further direct that the claimants are entitled for interest on the entire amount of compensation from the date of the petition to the date of payment/realisation at the rate of 7.5% per annum. (e) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge