IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 MACA.No. 1601 of 2006() ----------------------- OPMV.158/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. MARIAMMA, AGED 50 YEARS, W/O.B.M.MOHAMMED KUNHI HAJI. 2. NASEEMA, AGED 30 YEARS, D/O. B.M.MOHAMMED KUNHI HAJI. 3. IQBAL, AGED 28 YEARS, S/O.B.M.MOHAMMED KUNHI HAJI. 4. SAHIDA, AGED 26 YEARS, D/O.B.M.MOHAMMED KUNHI HAJI. ALL ARE RESIDING AT BALAKILA HOUSE, ADHOOR VILLAGE, URDOOR P.O. BY ADV. SRI.T.G.RAJENDRAN SMT.ARLISS TRENCY ANTONY RESPONDENT(S): --------------- 1. PRAKASH.K., S/O.RAGHUVEERA RAO, RESIDING AT BEEJANTHADKA HOUSE, BADIADKA, PERDALA P.O. 2. K.GANESHA, S/O.K.RAGHUVEERA RAO, SRIDEVI NILAYA, BEEJATHADKA HOUSE, PERDALA P.O. 3. THE MANAGER, UNITED INDIA INSURANCE CO.LTD., M.G.ROAD, KASARAGODE. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20/09/2006, THE COURT ON 03/03/2009 PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.A.C.A. No. 1601 of 2006 ------------------------------------------------- Dated this the 3rd day of March, 2009 JUDGMENT Basant,J. The claimants before the Tribunal are the appellants before us. They are the wife aged 50 years and three major children of the deceased person who was aged 58 years at the time of his death. He was allegedly a business man earning an income of Rs.5,000/- per mensem. An amount of Rs.4 lakhs was claimed as compensation. The Tribunal awarded an amount of Rs.1,11,200/- with interest at differential rates from the date of the petition as compensation as per the details shown below: 1. For transport to hospital - Rs.500/- 2. For damage to clothing - Rs.200/- 3. For loss of consortium - Rs.5,000/- M.A.C.A. No. 1601 of 2006 -: 2 :- 4. For loss of love and affection - Rs.5,000/- 5. For loss of estate - Rs.2,500/- 6. For funeral expenses - Rs.2,000/- 7. For loss of dependency - Rs.96,000/- (1500 x 12 x 2/3 x 8) ------------------- Total - Rs.1,11,200/- ======== 2. 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, the learned counsel for the appellants contends that the Tribunal erred grossly in reckoning the monthly income as Rs.1,500/- only. The deceased was a business man. He was aged 58 years. It was extremely improbable and unreasonable to reckon the monthly income at Rs.1,500/- per mensem. It cannot be lost sight of that the deceased had brought up his three children and was maintaining his wife and himself even at the time of his death. At least, an amount of Rs.2,000/- per mensem must have been reckoned as the monthly income, contends the learned counsel for the appellants. 3. The learned counsel for the appellants then contends that the amount of Rs.5,000/- awarded for loss of consortium to M.A.C.A. No. 1601 of 2006 -: 3 :- the wife aged 50 years and an amount of Rs.5,000/- awarded as compensation for love and affection to all the four claimants together are painfully and unrealistically low. 4. Lastly and finally the learned counsel contends that the Tribunal had inadvertently omitted to award any amount as compensation under the head of pain and suffering. The death occurred instantaneously, it is submitted. 5. We find merit in the contentions of the learned counsel for the appellants. In the totality of facts and circumstances of this case we are persuaded to agree that it would be absolutely reasonable and safe even in the absence of any better evidence to conclude that the deceased must have been earning an income of Rs.2,000/- per mensem. Even in the absence of better, more cogent and authentic evidence that presumption and prudence can safely be drawn. The learned counsel for the appellants points out that as early as in 1994 the Statute has permitted the presumption of notional income of Rs.1,250/- per mensem for even non-earning persons. We are satisfied that Rs.2,000/- can be reckoned as the monthly earnings. Consequently, the appellants shall be entitled to a further amount of Rs.32,000/- as compensation under the head of loss of dependency. 6. We are further satisfied that an amount of Rs.10,000/- M.A.C.A. No. 1601 of 2006 -: 4 :- each (Rs.5,000/- more) can be awarded under the head of loss of consortium and loss of love and affection in the facts and circumstances of this case. We are also persuaded to agree that an amount of Rs.5,000/- can be awarded as compensation for pain and suffering endured by the deceased before his death. 7. The above discussions lead us to the conclusion that the appellants are entitled to a total amount of Rs.47,000/- more as per the details shown below: 1. For loss of dependency - Rs.32,000/- more (2000 x 12 x 2/3 x8 = Rs.1,28,000/- minus Rs.96,000/-) 2. For loss of consortium - Rs.5,000/- more (Rs.10,000/- minus Rs.5,000/-) 3. For loss of love and affection - Rs.5,000/- more (Rs.10,000/- minus Rs.5,000/-) 4. For loss of pain and suffering - Rs.5,000/- (No amount awarded) --------------- Total Rs.47,000/-more ====== 8. The appellants shall be entitled to a further amount of Rs.47,000/- in addition to the amounts already awarded by the Tribunal. Needless to say that the entire amount of compensation shall bear interest at differential rates as directed M.A.C.A. No. 1601 of 2006 -: 5 :- by the Tribunal from the date of the petition. 9. This appeal is accordingly allowed in part to the above extent. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/ M.A.C.A. No. 1601 of 2006 -: 6 :-