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 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 MACA.No. 3099 of 2009(F) ----------------------- OPMV.798/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANTS : PETITIONER 1 TO 4, PETITIONER NO.5 DIED ----------------------------------------------------- 1. LATHEEFA, W/O.DECEASED HAMSAKUTTY, VALIYATHARA PADEETTATHIL, KADATHOOR MURI, K.S.PURAM (P.O), KARUNAGAPPALLY, KOLLAM. 2. HAREES, AGED 23 YEARS, S/O.DECEASED HAMSAKUTTY, VALIYATHARA PADEETTATHIL, KADATHOOR MURI, K.S.PURAM (P.O), KARUNAGAPPALLY, KOLLAM. 3. HARSHA, AGED 21 YEARS, D/O.DECEASED HAMSAKUTTY, VALIYATHARA PADEETTATHIL, KADATHOOR MURI, K.S.PURAM (P.O), KARUNAGAPPALLY, KOLLAM. 4. HASEENA, AGED 19 YEARS, D/O.DECEASED HAMSAKUTTY, VALIYATHARA PADEETTATHIL, KADATHOOR MURI, K.S.PURAM (P.O), KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): RESPONDENTS -------------------------- 1. P.O.VARGHESE, S/O.OUSEPH, PALLIYAM HOUSE, KING MONASTRY, WEST KARUKUTTY P.O 2. MANOJ KUMAR, S/O.P.D.DEVASSYAKUTTY, PYNADATHU HOUSE, KARUKUTTY P.O. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, KOLLAM. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.3099 of 2009-F ***************************** Dated this the 1st day of September, 2011 JUDGMENT BASANT, J. Claimants are the appellants. They are the wife, 3 adult children and father of a deceased person, aged 48 years Ex serviceman, who after discharge from service had secured employment as a Security Guard. He suffered injuries in a motor accident on 25.05.2004. He succumbed to those injuries on the same day. Against a total claim of Rs.8 lakhs, the Tribunal awarded only an amount of Rs.2,38,000/- as per the details which are given in para.8 of the impugned award, which we extract below: Sl.No. Heads of award Amount awarded 1 Transport to the hospital and funeral expenses Rs. 5,000.00 2 Compensation for pain and suffering Rs. 5,000.00 3 Compensation for continuing for permanent disability (Rs.1333/- X 12 X 13) Rs.2,07,948.00 4 Compensation for the loss of consortium Rs. 10,000.00 5 Compensation for loss of love and affection Rs. 10,000.00 M.A.C.A No.3099 of 2009-F 2 Sl.No. Heads of award Amount awarded Total Rs.2,37,948/- rounded as Rs.2,38,000/- 2. We have heard the learned counsel for the appellants and the learned counsel for the insurance company. The insurer has been made entirely liable to satisfy the award. The challenge is raised against the impugned award on the sole ground that the quantum of compensation awarded is not adequate. 3. Called upon to explain and be specific, the learned counsel for the appellants submits that the Tribunal has erred grossly in directing payment of only an amount of Rs.2,07,948/- under the head of loss of dependency (though mis described as compensation for continuing permanent disability). The learned counsel for the appellants then contends that the Tribunal has grossly in error in taking only Rs.2,000/- as the monthly income. While ascertaining the quantum of monthly income, the Tribunal must have taken note of the potential of the deceased to earn income from his employment as security guard. Only Rs.2,000/- has been taken. The Tribunal should have further noted that death of the deceased will put an end to receipt of pension by the M.A.C.A No.3099 of 2009-F 3 deceased. The family may be entitled for family pension. But the gap/difference between the pension for the deceased and family pension for the dependents/family members has not been taken into reckoning. The learned counsel for the appellants submits that in any view of the matter, drawing inspiration from the facts scenario in the present case, taking note of the presumption of prudence under clause 6 of the Second Schedule which permits the Tribunal to assume that even a non earning person can be reckoned as earning an income of Rs.1,250/- per mensem from 1994 and also considering the binding precedents in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. Mohammad Tabbar & Anr. [2008 ACJ 1488] , the Tribunal must have taken at least Rs.3,000/- per mensem as the monthly income. We agree with the learned counsel. We are satisfied in the facts and circumstances of this case that Rs.3,000/- can certainly be reckoned as the total monthly income of the deceased for the purpose of ascertaining the loss suffered by the family. 2/3 of the same can be reckoned as contribution to the family by the deceased. 13 has been rightly taken as the multiplier by the Tribunal following the M.A.C.A No.3099 of 2009-F 4 dictum in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]. 4. We are not persuaded to agree that the amount awarded under any other head deserves modification/enhancement. 5. On the basis of the above discussions, we hold that the appellants are entitled for a further amount of Rs.1,04,052/- as per the details given below: i) Compensation for loss of dependency : Rs.1,04,052/- [(3000X12X2/3X13 = 3,12,000) minus 2,07,948] --------------- Total : Rs.1,04,052/- ========= 6. In the result: a) This M.A.C.A is allowed in part; b) The appellants are found entitled to a further amount of Rs.1,04,052/- (Rupees One lakh four thousand and fifty two only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of M.A.C.A No.3099 of 2009-F 5 compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/