IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 MACA.No. 1767 of 2006(G) ------------------------ OPMV.915/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- THE ORIENTAL INSURANCE CO.LTD., UDUMALPET, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): ADDL.2ND CLAIMANT -------------------------------- MINI, D/O.GOPALAKRISHNAN (LATE),OMKARAM, PERUVARAM NORTH PARAVUR, ERNAKULAM DISTRICT. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.A.C.A. Nos. 1767 of 2006 ------------------------------------------------- Dated this the 1st day of April, 2009 JUDGMENT Basant,J. The 3rd respondent - insurance company, before the Tribunal is the appellant before us. The original 1st petitioner, who died in the course of the proceedings, had staked the claim for compensation for loss suffered by her as a result of the motor accident which occurred on 17/5/01. At the time when the crime was staked, she was unconscious and debilitated and the claim was made through her next friend and daughter. The original 1st petitioner died during the pendency of the proceedings on 12/1/02 and her sole legal heir, her daughter who represented her when the petition was filed, has come on record later as the additional claimant No.2. 2. Though notice was served on the claimant/respondent, M.A.C.A. Nos. 1767 of 2006 -: 2 :- there is no appearance for the respondent before us. 3. The incident took place on 17/5/01. The deceased was aged 52 years on the date of the accident. She allegedly had income. She was the partner in a partnership establishment. The partnership deed is produced as Ext.A25. A certificate issued from the bank – Ext.A26, confirms that she was a partner and was functioning as such and operating the bank account of the partnership. It was claimed that the deceased – claimant was getting an income of Rs.6,000/- per mensem. 4. The Tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the 2nd claimant is entitled to a total amount of Rs.5,97,750/- as compensation as per the details shown below: “Transportation - Rs.1,000/- Extra nourishment - Rs.11,000/- Damage - Rs.250/- Treatment - Rs.3,09,500/- Bystander's expense - Rs.11,000/- Funeral expenses - Rs.2,000/- Pain & suffering - Rs.30,000/- Love & affection - Rs.5,000/- Loss of estate - Rs.2,28,000/- -------------------- Total - Rs.5,97,750/-” ======== M.A.C.A. Nos. 1767 of 2006 -: 3 :- 5. The appellant/insurer claims to be aggrieved by the impugned award. What is the grievance? The learned counsel for the appellant submits that the challenge is only against the quantum of compensation awarded under the heads of pain and suffering and loss of estate. There is no attempt to assail the impugned award on any other grounds. 6. We are not persuaded to agree that the amount awarded under the head of pain and suffering – Rs.30,000/-, is in any way excessive. We note that the deceased had lived from 17/5/01 – the date of accident to 12/1/02 – the date of her death. It is not disputed that during this entire period she was in the hospital undergoing treatment. Indications suggest that she was unconscious also. The mere fact that a person had been rendered unconscious cannot, by any stretch of imagination, be held to justify a contention that the person is not entitled for any compensation under the head of pain and suffering. In these circumstances, we take the view that the amount awarded under the head of pain and suffering does not warrant appellate interference in the facts and circumstances of this case. 7. For loss of estate, an amount of Rs.2,28,000/- has been awarded. The learned counsel contends that the basis on which this amount is awarded is not decipherable at all. The deceased M.A.C.A. Nos. 1767 of 2006 -: 4 :- was aged 52 years and therefore going by the 2nd Schedule, 11 can safely be accepted as the multiplier. About the multiplicand, in the petition a claim is made that the deceased was earning an income of Rs.6,000/- per mensem. Significantly, there is no better evidence whatsoever to show the income that she was earning, except Exts.A25 and A26. The accident had taken place on 17/5/01 and Ext.A25 partnership deed is seen dated 12/12/00. No better evidence is available to indicate the quantum of income that the deceased was getting from the said partnership business. In these circumstances, we find it absolutely safe to concur with the conclusion of the Tribunal that Rs.2,000/- per mensem can be reckoned as the notional income of the deceased. 8. If Rs.2,000/- is reckoned as the multiplicand and 11 is the multiplier, the claimant will not be entitled the amount of Rs.2,28,000/- which is seen awarded under the head of loss of dependency/loss of estate. In any view of the matter, the amount of compensation payable under the head of loss of dependency/loss of estate cannot exceed Rs.1,76,000/- (2000 x 12 x 2/3 x 11). We are unable to understand how the Tribunal arrived at the figure of Rs.2,28,000/-. The learned counsel for the appellant submits that such inadvertent errors appear to M.A.C.A. Nos. 1767 of 2006 -: 5 :- have crept in the impugned award under which several connected O.Ps. were disposed of by the common judgment. In any view of the matter, we are unable to find any justification for the award of the amount of Rs.2,28,000/- under the head of loss of dependency/loss of estate. Consequently, we hold that the claimant is entitled only to an amount of Rs.1,76,000/- under the head of loss of estate that is an amount of Rs.52,000/- less (Rs.2,28,000/- minus Rs.1,76,000/-) than the amount already awarded by the Tribunal. 9. In the result, this appeal is allowed in part to the above extent. In all other respects, the impugned award is upheld. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/ M.A.C.A. Nos. 1767 of 2006 -: 6 :-