IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 MACA.No. 360 of 2007(E) ---------------------- OPMV.178/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, CHANGANACHERRY NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, AJAY VIHAR, M.G.ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENTS : PETITIONERS -------------------------- 1. MARYKUTTY THOMAS, AMAKKADU HOUSE, PANACHIKKAVU P.O.,PERUNNA WEST, CHANGANACHERRY. 2. TUJO THOMAS (MINOR), S/O LATE THOMAS GEORGE, -DO- -DO-. 3. TEENU MARY THOMAS (MINOR), D/O LATE THOMAS GEORGE, -DO- -DO-. (MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER AND GUARDIAN 1ST RESPONDENT.) ADV. SRI.T.SAJI FOR R1 TO 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2011, ALONG WITH CO NO.68 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** M.A.C.A No.360 of 2007-E, C.M.Appl.No.2188 of 2011 in C.O.No.68/2011 and C.O.No.68 of 2011 ***************************** Dated this the 7th day of September, 2011 ORDER/JUDGMENT BASANT, J. Insurance company is the appellant. The claimants are the wife and 2 minor children of a deceased person, who was aged 47 years when the accident took place. The accident occurred on 09.07.2002. The deceased suffered injuries. He succumbed to those injuries while undergoing treatment on 17.07.2002. The deceased was a businessman in musical equipments. He claimed a total amount of Rs.10 lakhs as compensation. The Tribunal, by the impugned award, directed payment of an amount of Rs.6,08,134/- as compensation as per the details shown below: Sl.No. Heads of award Amount awarded 1 Transportation Rs. 2,000.00 2 Medical Rs. 10,134.00 3 Funeral Rs. 5,000.00 M.A.C.A No.360/07 -: 2 :- Sl.No. Heads of award Amount awarded 4 Damage to clothing Rs. 1,000.00 5 Pain and suffering Rs. 50,000.00 6 Loss of consortium Rs. 10,000.00 7 Loss of love and affection Rs. 10,000.00 8 Loss of dependency (5000X12X2/3X13) Rs.5,20,000.00 Total Rs.6,08,134.00 The said amount was directed to be paid along with interest @ 6% per annum. 2. The insurance company has preferred this appeal. In the course of arguments, the learned counsel for the respondent/claimant submitted that they have preferred a Cross Objection also. It is now seen that the Cross Objection is filed only on 05.09.2011. The delay in filing the Cross Objection is condoned and the Cross Objection is also taken up for hearing along with the appeal. 3. The impugned award is challenged by both sides on the ground that the quantum of compensation awarded is not fair and just. While the insurance company contends that the quantum of compensation awarded is excessive, the learned counsel for the respondent/claimant submits that the quantum of compensation awarded is too low and does not ensure payment of fair, just and reasonable compensation. M.A.C.A No.360/07 -: 3 :- 4. We requested the learned counsel to explain and be specific. The learned counsel for the appellant/insurance company assails the impugned award on two specific grounds. First of all, it is contended that the monthly income reckoned by the Tribunal at `5,000/- is not correct. Secondly, it is contended that the amount of compensation awarded under the head of pain and suffering (`50,000/-) is unreasonably high. These are the only grounds on which the impugned award is assailed by the appellant/insurance company. 5. The claimants/cross-objectors, in turn, contended that the monthly income of the deceased reckoned at `5,000/- by the Tribunal is unfair. In the facts and circumstances of this case, the Tribunal ought to have taken a higher amount - in any case not less than `10,000/-, as the monthly income of the deceased, contends counsel. 6. The learned counsel for the claimants further contends that the amount of compensation awarded under the head of loss of consortium and loss of love and affection are painfully low. Finally, the learned counsel argues that interest awarded at the rate of 6% per annum is not adequate. Interest must have been awarded at a higher rate, contends counsel for the claimants. 7. We have considered all the relevant inputs. The M.A.C.A No.360/07 -: 4 :- Tribunal had reckoned `5,000/- as the monthly income of the deceased. He was allegedly running a business in musical instruments. A certificate Ext.A6 issued by the Municipal Chairman was produced to confirm that the claimant was running such a business activity. Ext.A7 series telephone bills show that there was a telephone connection to the business premises. Ext.A8 indicates that the deceased was having a vehicle registered in his name in connection with his business activity. Exts.A9 and A13 are documents produced to confirm that such business activity was being run by the deceased. In addition to all these, we have the oral evidence of P.W.1, the 1st claimant to throw light on the nature of the business activity and the income of the deceased. 8. The learned counsel for the insurance company contends that in the absence of any better evidence, `5,000/- reckoned as the monthly income by the Tribunal is excessive. The learned counsel for the claimants, on the contrary, contends that the amount awarded is too low and inadequate. We take note of the fact that specific evidence in the form of tax returns/ bank accounts are not produced. We get indications about the investment of amounts for the business of the deceased. We get a rough idea about the nature and magnitude of the activity M.A.C.A No.360/07 -: 5 :- undertaken by the deceased from the evidence placed before court in the form of telephone bills, vehicle policy certificate etc. In any view of the matter, we are satisfied that the finding of the Tribunal which operates at the grass root level which had occasion to see the witness perform in the witness stand that monthly income of the deceased can safely be fixed at `5,000/- is justified on the basis of the totality of the inputs available. We find no reason to interfere with that conclusion of the Tribunal by invoking our appellate jurisdiction under Sec.173 of the Motor Vehicles Act. 9. An amount of `50,000/- has been awarded under the head of pain and suffering. The learned counsel for the insurance company contends that in any view of the matter, the amount awarded under this head is excessive. The deceased had suffered multiple injuries. He was an inpatient from 9/7/02 to 17/7/02. In any view of the matter, we are satisfied that a relatively higher amount is liable to awarded under the head of pain and suffering. We are satisfied that `20,000/- can safely be fixed as the quantum of compensation under the head of pain and suffering. For loss of consortium only an amount of `10,000/- has been awarded. The learned counsel for the claimants contends that the amount awarded is grossly M.A.C.A No.360/07 -: 6 :- inadequate. The deceased was aged 47 years. His wife younger to him is the first claimant. We are satisfied that under the head of loss of consortium, an amount of `20,000/- could safely have been awarded. Similarly, for loss of love and affection for the 3 claimants only an amount of `10,000/- has been awarded and we are persuaded to agree that the appellants are entitled for a higher amount of compensation under that head. We are satisfied that `20,000/- can be awarded as compensation under that head also. 10. No amount has been awarded under the head of by- stander's expenses and extra nourishment. There was hospitalization for a period of 9 days. We are satisfied that an amount of `2,000/- can be awarded under the composite head of by-stander's expenses and extra nourishment for the period of hospitalization. 11. The above discussions lead us to the conclusion that the amount awarded under the impugned award deserves to be modified and the quantum of compensation awarded will have to be reduced to `6,00,134/- (Rupees one lakh one hundred and thirty four only) as per the details given below: 1. Pain and suffering - `20,000/- (`30000 less than the amount awarded) M.A.C.A No.360/07 -: 7 :- 2. Loss of consortium - `20,000/- (`10,000/- more than the amount awarded) 3. Loss of love and affection - `20,000/- (`10,000/- more than the amount awarded) 4. Expenses for by-stander's and extra nourishment - ` 2,000/- (No amount awarded) --------------- `8,000/- less than the amount awarded The total amount payable is thus only `6,00,134/- (i.e., `6,08,134/- minus `8,000/-) 12. We find merit in the contention that the interest awarded is too low. We are satisfied that the interest is liable to be awarded at a higher rate. We are satisfied that interest can be awarded at the rate of 7.5% per annum. 13. In the result: (a) This appeal and the cross-objections are both allowed in part. (b) In supersession of the direction in the impugned award, the claimants are found entitled a total amount of `6,00,134/- (Rupees six lakh one hundred and thirty four only) as compensation. (c) We direct that interest be paid on the said amount of M.A.C.A No.360/07 -: 8 :- `6,00,134/- at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. (d) All other directions of the Tribunal are upheld. R. BASANT (Judge) N.K. BALAKRISHNAN (Judge) rtr/Nan