IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 MACA.No. 260 of 2007() ---------------------- OPMV.1467/1999 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE .................... APPELLANTS/PETITIONERS: ------------------------------ 1. K.SOUDHAMINI, W/O.DECEASED T.K.RAMAKRISHNAN,THANIKUNNATH HOUSE, PATTELETH THAZHAM, P.O.POKKUNNU, KOZHIKODE-673 013,PRESENTLY RESIDING AT `KRISHNA KRIPA', NEAR THAYIL SCHOOL, P.O.KAVUMBHAGAM, TELLICHERRY, KANNUR DISTRICT. 2. K.K.RESHMA, D/O.DECEASED T.K.RAMAKRISHNAN, DO. 3. K.K.RINIL, S/O.DECEASED T.K.RAMAKRISHNAN, DO. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SMT.SANJANA R.NAIR RESPONDENTS/RESPONDENTS: ---------------------------------- 1. P.K.KUNHAPPA NAIR, S/O.APPA NAIR, `RAJANI NILAYAM', KEEZHATHOOR, P.O.PATHIRIYAD, TELLICHERRY, KANNUR DISTRICT. 2. T.T.SHAJAN, S/O.KUNHIKRISHNAN, `THODUVAYAL HOUSE', P.O.PATHIRIYAD, TELLICHERRY, KANNUR DISTRICT. 3. THE MANAGER, ORIENTAL INSURANCE CO.LTD., CITY BRANCH OFFICE, SOUTH BASAR, KANNUR-670 002. R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ----------------------------------------------- M.A.C.A No. 260 OF 2007 ----------------------------------------------- Dated this the 6th day of March, 2009 JUDGMENT BASANT, J The claimants before the Tribunal are the appellants before us. They are the wife and two adult children of a deceased person who suffered injuries in an accident which occurred on 25.08.98 and succumbed to the injuries on the same day. He was aged 66 years on the date of his death. The claimants are aged 52 years, 25 years and 23 years. Before the Tribunal no oral evidence was adduced. Exts.A1 to A3 were marked. The Tribunal on a consideration of the available materials came to the conclusion that the appellants are entitled for an amount of Rs.83,000/- as compensation as per the details shown below: 1. Compensation for transportation charges : Rs. 1,000/- 2. Funeral expenses : Rs. 2,000/- 3. Pain and suffering : Rs. 5,000/- 4. Loss of love and affection : Rs. 10,000/- 5. Dependency compensation : Rs. 60,000/- (1,500 x 12 x 2/3 x 5) 6. Loss of consortium : Rs. 5,000/- - - - - - - - - - - Total : Rs. 83,000/- ========== MACA: 260/07 -:2:- 2. It was further directed that the said amount shall be paid along with interest at the rate of 6% per annum. 3. Appellants claims to be aggrieved by the impugned order. What is the grievance ? Learned counsel for the appellants submits that appellants did not get the opportunity to adduce proper evidence before the Tribunal. They did not know that the matter was listed for trial. Hence they could not adduce better evidence. The counsel contends first of all that opportunity may be granted to the appellants to adduce such evidence by remand of the case. 4. We are not persuaded to direct any such remand. We note particularly that even before this Court exercising appellate jurisdiction, no document has been produced to raise the contention that appellant wanted to rely on such documents. 5. learned counsel for the appellants assails the impugned award on three grounds. First of all it is contended that multiplicand reckoned by the Tribunal is grossly inadequate. Only an amount of Rs.1,500/- has been taken as monthly income. The appellant aged 66 years was running a flour mill. Counsel points MACA: 260/07 -:3:- out that in the petition it has specifically been averred that the deceased was the proprietor of Radhakrishna Flour Mill, Thalassery which was run at shop No.9/586 of Thalassery Municipality. The learned counsel for the appellant also points out that even in the inquest report it has been shown that the deceased was running a flour mill. Counsel further argues that even in case of a non-earning person, from 1994 the second Schedule to the Motor Vehicles Act enables the Tribunal to draw a presumption of prudence that notional income cannot be below Rs.1,250/-. 6. It is trite that, the burden is upon the person claiming relief to adduce proper evidence in support of the relief claimed. In the facts and circumstances of this case, even though better evidence has not been made available before the Tribunal and it is only the claimant who can be left to suffer for want of adequate data on that aspect, the Tribunal constituted to render rough and ready justice must be found fault with for not drawing the presumption of prudence to do justice in favour of the victims. In the facts and circumstances of this case the conclusion appears to MACA: 260/07 -:4:- be inescapable that, deceased though aged 66 years was running flour mill as its proprietor. Reasonable inferences can but be drawn. Presumption of notional income for a non-earning person can be taken into account and we are satisfied that in the given facts and circumstances twice the notional income, i.e., Rs.2,500/- per mensem can safely be assumed to be the income of the deceased. The compensation for dependency will have to be re-worked on that input. In coming to this conclusion we do take note of the fact that even in proceedings under Section 163 A where no negligence need be proved, the claimants would have received a higher amount. 7. The second ground of challenge is on the quantum of amount awarded for loss of consortium to the spouse. We are satisfied that in these circumstances the award of Rs.5,000/- is not adequate and sufficient. It is safe to reckon the amount payable under that head at Rs.10,000/-. Interest has been awarded only at 6% per annum. Counsel contends, relying on precedents, that interest should have been awarded at least at the rate of 7.5% per annum. We agree with the learned counsel. MACA: 260/07 -:5:- 8. The above discussions lead us to the conclusion that appellants are entitled for the following further amounts in addition to the amounts awarded by the Tribunal. 1. Compensation for dependency : Rs.40,000/- (2,500 X 12 X 2/3 X 5 minus 60,000) 2. Loss of consortium (10,000-5,000) : Rs. 5,000/- ---------------- Total : Rs.45,000/- ========= 9. We further direct that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the petition to the date of payment. This appeal is accordingly allowed to the above extent. R. BASANT, JUDGE C.T. RAVIKUMAR, JUDGE ttb MACA: 260/07 -:6:- MACA: 260/07 -:7:-