IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 MACA.No. 1756 of 2011() ------------------------------ OPMV.2664/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S):PETITIONERS ----------------------------------- 1. MRS. ASMA BEEVI K.M., W/O. LATE M.H.SAIFUDEEN, AGED 47, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028. 2. ASHUR SAIFUDEEDN, S/O. LATE M.H.SAIFUDEEN, AGED 25 YEARS, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028. 3. AFNAS SAIFUDEEN,S/O. LATE M.H.SAIFUDEEN, AGED 22 YEARS, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028. 4. MR. M.K.HYDROSE, AGED 84,MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028. 5. MRS.BEEVI FATHIMA HYDROSE, W/O. HYDROSE, AGED 74 YEARS, MADATHIPARAMBIL, VENNALA P.O., COCHIN - 682 028. BY ADV. SRI.K.R.MOHANAN SRI.K.SIVARAJ RESPONDENTS/RESPONDENTS ------------------------------------ 1. MR.ABDUL NAZEER, S/O. ABDULLA, AGED 34, BAKKAT HOUSE, VENNALA P.O., COCHIN - 682028 (OWNER OF THE BUS KL-7-AY-4229) svs ..............2/-.... ...2... MACA. NO.1756/2011 2. MR.SUDARSHANAN, S/O. THANKAPPAN, AGED 40, THOPPIL HOUSE, NEAR KAPPATTY KAVU TEMPLE, EROOR P.O., COCHIN - 682 306, NADAMA VILLAGE, KANAYANOOR TALUK (D/L.NO.E1173/93 & BADGE NO.E.629/94). 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, P.B. NO.8, JYOTI SUPER BAZAAR, THODUPUZHA-685 584. 4. MR.SHAJI, S/O. K.B.MUHAMMED, AGED 37, KIZHAKKEVEEDU, HOUSE NO.14/1807, KARUVELLYPADDY, COCHIN - 5 (OWNER OF THE CONTAINER LORRY NO.KL-7 A 9088) 5. MR.PRYIAN, S/O. PADMNABHAN, AGED 29,VELIYATHU HOUSE, EAST OF PANCHAYATHOFFICE, KANDAKADAVU, KUMBALANGI VILLAGE (L.NO.EMT/3636/01 & BADGE NO.626/04EMT)682007 6. NATIONAL INSURANCE CO. LTD., CHITOOR ROAD, SOUTH JUNCTION, ERNAKULAM, BRANCH NO.1, COCHIN - 682 016. R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE ADV.SRI.P.JACOB MATHEW R6 BY ADV. SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs R.BASANT & K.SURENDRA MOHAN, JJ --------------------------------------------- MACA No.1756 of 2011 --------------------------------------------- Dated this the 4th day of November 2011 JUDGMENT Basant, J Claimants are the appellants. They are the wife aged 42 years, children aged 20 years and 17 years and parents aged 79 years and 69 years. The deceased was a person aged 49 years. He suffered injuries in a motor accident which took place on 5.7.2006. He succumbed to the injuries suffered while he was undergoing treatment as an inpatient on 22.7.2006. It was claimed that he was running a bakery business and earning an income of Rs.7,000/- per mensum. The Tribunal, by the impugned award, against a total claim of Rs.20 lakhs, awarded only an amount of Rs.4,89,738/- as compensation as per the details given in paragraph-17 of the award which we extract below: MACA No.1756 of 2011 2 Heads Amount claimed Amount awarded Loss of dependency 12 lakh 230400 (3000x12-1/5th x8) Transport expenses 25000 2000 Funeral expenses 15000 5000 Medical expenses 1.5 lakh 192338 (Ext.A18 bill) Loss of estate Compensation for pain and sufferings 1 lakh 25000 (died after 17 days) Compensation for loss of love and affection 10 lakh 25000 Compensation for loss of consortium 2 lakh 10000 Other claims disallowed. Total 4,89,738 2. The two insurance companies were made entirely liable under the impugned award (50% each). 3. We have heard the learned counsel for the appellants and the learned counsel for the Insurance Companies. The challenge is raised against the impugned award on the only ground that the quantum of compensation awarded is not adequate. 4. Called upon to explain and be specific, the learned counsel for the appellants, first of all, contends that the quantum of compensation awarded under the head of loss of consortium (Rs.10,000/-) is too inadequate considering the MACA No.1756 of 2011 3 age of the deceased and the age of the first appellant/claimant. We are satisfied that an amount of Rs.20,000/- deserves to be awarded under that head. 5. It is pointed out that though the deceased was an inpatient for a period of about 18 days, no compensation has been awarded under the head of Bystander's expenses or extra nourishment. We are satisfied that an amount of Rs.100/- under each head per day of hospitalisation can be awarded under that composite head. 6. The challenge is mainly directed against the quantum of compensation awarded under the head of loss of dependency. The deceased was a person aged 49 years and there was overwhelming evidence in support of that assertion. Even the birth certificate has been produced. The Tribunal, in paragraph-15 of the order, observes that the deceased was aged 59 years and then proceeded to reckon 8 as the multiplier. We are satisfied that there are convincing inputs available to conclude that the deceased was a person belonging to age group of 45 to 50 years. Going by the dictum in Sarla Verma v Delhi Transport Corporation MACA No.1756 of 2011 4 (2009 (6) SCC 121), 13 deserves to be reckoned as the multiplier. 7. The next challenge is on the quantum of monthly earnings. No better evidence was produced to prove the precise income which the deceased was earning. However, we have indisputable material to come to a conclusion that the wife and two children in addition to himself were depending on the income of the deceased to keep body and soul together - not to speak of the father and mother who have also joined as claimants. No oral evidence was adduced and it is not possible to conclude that claimants 4 and 5, the parents were wholly depending on the deceased. Available inputs further indicate that he was a business man. We have gone through the inquest report which also supports this theory. We have also seen the identity card issued by the Angamaly Merchants Association to the deceased showing his address as Cochin Chips Centre, Angamaly to support the contention that he was a business man. The learned counsel for the appellants further relies on the presumption of prudence available from 1994 under MACA No.1756 of 2011 5 clause-6 of the second schedule. He also places reliance on the decisions in Lakshmi Devi V Mohammed Tabbar (2008ACJ 1488) and Latha Wadhwa v State of Bihar (AIR 2001 SC 3218). We must remind ourselves that the burden is always on the claimants to place satisfactory, cogent and acceptable data about the income of the deceased. But, even in a case where such precise evidence about income is not forthcoming, Courts and Tribunal cannot throw their hands up in helplessness. Reasonable inferences justified by the totality of circumstances will definitely have to be drawn. In the facts and circumstances of the instant case, we are persuaded to agree that the conclusion that the deceased was earning only an income of Rs.3,000/- deserves interference. We take the view that the monthly income can safely be reckoned in the circumstances at Rs.4500/-. 8. The learned counsel for the Insurance Company points out that 1/5th has been deducted from the monthly earnings as the personal income of the deceased. Going by Sarla Verma v Delhi Transport Corporation (2009 (6) SCC 121), only the nuclear family consisting of four members including the deceased can be held to depend on MACA No.1756 of 2011 6 the deceased and therefore, we agree that 1/3rd has to be deducted towards the personal expenses of the deceased. The quantum of compensation payable under the head of loss of dependency will hence have to be reworked on the above inputs. 9. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs..2,58,700/-(Rupees Two Lakhs Fifty Eight Thousand Seven Hundred only) in addition to the amount awarded by the Tribunal. Sl.No. Heads Amount 1 Loss of conjugal Society Rs.10,000/- (Rs.20,000/- minus Rs.10,000/-) 2 Loss of estate (no amount is awarded by the Tribunal) Rs.7500/- (Global conventional amount) 3 Extra nourishment and byestanders expenses(No amount is awarded by the Tribunal) Rs.3,600/- (18 x 200) 4 Loss of dependency Rs.2,37,600/- (Rs.4500x12x2/3x13= Rs.4,68,000/- minus Rs.2,30,400/-) Total Rs.2,58,700/- 10. We are not persuaded to interfere with the amounts awarded under any other head. MACA No.1756 of 2011 7 11. In the result, a) This appeal is allowed in part. b) The appellants are found entitled to a further amount of Rs.2,58,700/-(Rupees Two Lakhs Fifty Eight Thousand Seven Hundred only) in addition to the amount awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rates specified by the Tribunal from the date of claim to the date of payment. d) We direct that proportionate cost for the proceedings before the Tribunal on the entire amount of compensation shall be calculated as directed in Jeena v Satheesh Babu (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. Sd/- R.BASANT, JUDGE sd/- K.SURENDRA MOHAN, JUDGE css/ true copy P.S.TO JUDGE