IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 MACA.No. 2307 of 2007(F) ----------------------- OPMV.93/2002 of II ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANTS/CLAIMANTS ---------------------------------- 1. NISHA AJI(W/O LATE GOPALAKRISHNA PILLAI) CHAPRAYIL VEEDU, PUTHUKKADU P.O., CHAVARA, KOLLAM. 2. ADARSH, S/O LATE GOPALAKRISHNA PILLAI, -DO- -DO-(MINOR, REPRESENTED BY THE 1ST APPELLANT, THE MOTHER AND NATURAL GUARDIAN) BY ADV. SRI.VIJU THOMAS SMT.M.MEENA JOHN RESPONDENTS : RESPONDENTS -------------------------- 1. M.S.SALEENA, W/O NAZAR, ROSA VILLA, PUNNAKULAM THEKKU, KULASEKHARAPURAM P.O., KARUNAGAPPALLY. 2. MADHU, S/O CHANDRAN, THOTTINATTU KIZHAKKATHIL, THODIYOOR, PULIVADAKK, THAZHAVA P.O., KARUNAGAPPALLY. 3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., HOSPITAL ROAD, KOLLAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.2307 of 2007-F ***************************** Dated this the 16th day of August, 2011 JUDGMENT BASANT, J. Claimants are the appellants. They are the young wife, aged above 19 years and son aged about 2 years of the deceased, who was aged about 36 years at the time of his death. The accident occurred on 17.12.2001. The deceased suffered injuries and succumbed to the same when he was undergoing treatment as an inpatient on 18.12.2001. He was an Ex- serviceman qualified to take up civil employment. Against a total claim, which was limited to 7 lakhs, the Tribunal awarded an amount of Rs.2,97,500/- as per the details given below: i) Transportation expenses : Rs. 1,000.00 ii) Damage to clothing : Rs. 500.00 iii) Medical and Miscellaneous expenses : Rs. 10,000.00 (death after one day in hospital) iv) Funeral expenses : Rs. 5,000.00 v) Pain and suffering : Rs. 5,000.00 vi) Loss of consortium : Rs. 5,000.00 M.A.C.A No.2307 of 2007-F 2 vii) Loss of love and affection : Rs. 5,000.00 viii) Loss of estate : Rs. 10,000.00 ix) Loss of dependency : Rs.2,56,000.00 (2,000 X 12 X 2/3 X 16) ----------------------- Total : Rs.2,97,500.00 ========= 2. The 3rd respondent/insurance company, though served, has not chosen to enter appearance. We have heard the learned counsel for the appellant. The challenge against the impugned award is only on the plank that the quantum of compensation awarded is inadequate. 3. Called upon to explain and be specific, the learned counsel for the appellant generally assails the quantum of compensation awarded under all heads. However, the challenge is raised specifically against the amounts awarded under the heads of loss of dependency, loss of consortium and loss of love and affection. We shall now consider the challenge raised in detail. 4. The deceased was a person aged 36 years. He was an Ex-service person. We do not have much details about the nature of his employment in the services or about his M.A.C.A No.2307 of 2007-F 3 competence to work thereafter. However, there is unassailable material to show that he was aged about 36 years and was a discharged Armed Force personnel having a young wife and an infant child depending on him. He may not have actually been able to secure any permanent employment after his discharge from the Forces. But certainly reasonable inferences could have been drawn about the nature of employment which he would have succeeded in securing as also the probable monthly income which, true to his status and responsibilities in life, he would have been able to earn. The Tribunal reckoned only Rs.2,000/- as the monthly income. The learned counsel for the appellant assails that conclusion. The learned counsel points out that as per clause 6 of the Second Schedule from 1994, courts are permitted to assume and presume that even a non earning person can he held to earn an income of Rs.1,250/- per mensem. It is further pointed out that in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] , the Supreme Court has taken the view that even a non earning home maker/house wife, even in the absence of any better evidence, can be assumed to earn an income of Rs.3,000/- per mensem. The presumption under clause 6 of the Second Schedule was brought in as early as in 1994 and there M.A.C.A No.2307 of 2007-F 4 has been no further updating of the amount by amendment of the Schedule even on the date of death of the deceased, ie. 18.12.2001. Taking all the relevant circumstances into account, we find it absolutely safe to draw an inference of prudence that Rs.3,000/- can be reckoned as the monthly income for the purpose of ascertainment of loss of dependency. 5. The Tribunal appears to have taken 16 as the multiplier. We are certainly of the opinion following the dictum in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] that 15 ought to be taken as the multiplier for persons belonging to the age group of 35-40 years. 2/3 has rightly been deducted towards the personal expenses of the deceased. Coming to the challenge against the compensation awarded under the head of loss of consortium, we agree with the learned counsel for the appellant that the amount of Rs.5,000/- awarded under that head for the wife aged about 19 years for the loss of her husband, aged about 36 years, is too inadequate. Similarly only an amount of Rs.5,000/- has been granted under the head of loss of love and affection for the young wife and the infant child. That also does deserve modification/enhancement, we are satisfied. M.A.C.A No.2307 of 2007-F 5 6. We are not satisfied that the amounts awarded under any other head deserves modification/enhancement. 7. On the basis of the above discussions, we come to the conclusion that the appellants are entitled for a further amount of Rs.1,29,000/- as compensation in addition to the amount already awarded by the Tribunal. i) Loss of dependency : Rs. 1,04,000.00 [(3000 X 12 X 15 X 2/3 = Rs.3,60,000) minus 2,56,000) ii) Compensation for loss of Consortium : Rs.15,000.00 (20,000 minus 5,000) iii) Loss of love and affection : Rs.10,000.00 (15,000 minus 5,000) --------------------- Total : Rs.1,29,000.00 ========= 8. Interest has been awarded only @ 6% per annum. The learned counsel for the appellant contends and we agree that a higher rate of interest ought to have been awarded. We are satisfied that interest can be awarded at the rate of 7.5% per annum. M.A.C.A No.2307 of 2007-F 6 9. In the result: a) This appeal is allowed in part; b) The appellants are found entitled to a further amount of Rs.1,29,000/- (Rupees One lakh twenty nine thousand only) in addition to the amounts awarded by the Tribunal; c) We direct that the appellants shall be entitled for interest on the entire amount of compensation @ 7.5% per annum from the date of the petition to the date of payment/deposit/realisation; d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/