IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 MACA.No. 706 of 2006() ---------------------- OPMV.1537/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. SMT.KOWSAR SULTHANA ALIAS KOWSAR, W/O.LATE JAHANGIR BASHA, DOOR NO.24, MARIYAMMAN KOVIL 5TH STREET, THIRUVANNAMALAI DISTRICT, TAMIL NADU. 2. TAMEEMUL ANSARI J.(MINOR AGED 8 YEARS), S/O.LATE JAHANGIR BASHA, DOOR NO.24, MARIYAMMAN KOVIL, 5TH STREET, THIRUVANNAMALAI DISTRICT, TAMIL NADU. 3. MOHAMMED WASEEM.J., (MINOR AGED 6 YEARS) S/O.LATE JAHANGIR BASHA, DOOR NO.24, MARIYAMMAN KOVIL, 5TH STREET, THIRUVANNAMALAI DISTRICT, TAMIL NADU. 4. JUVERIA BABU J. (MINOR AGED 4 YEARS), D/O.LATE JAHANGIR BASHA, DOOR NO.24, MARIYAMMAN KOVIL, 5TH STREET, THIRUVANNAMALAI DISTRICT, TAMIL NADU. 5. SMT.BATOOLA BEEVI (AGED 59 YEARS), W/O.LATE ABDUL SAIT, DOOR NO.24, MARIYAMMAN KOVIL, 5TH STREET, THIRUVANNAMALAI DISTRICT, TAMIL NADU. BY ADV. SRI.P.VIJAYARAGHAVAN RESPONDENT(S): --------------- 1. MR..K.K.SATHYAPALAN, KIZHAKKEDATH HOUSE, CHERAI P.O., ERNAKULAM DIST. 2. MR.SUMESH.K.M., S/O.MUKUNDAN, KIZHAKKEDATH HOUSE, KOLATHUMKAVU VADAKKEVAZHIKKU PADINJARU, PALLIPPURAM P.O., ERNAKULAM DIST. 3. UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICER, MULLACKAL, ALAPPUZHA. ADV. SMT.P.A.REZIYA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & P.R.RAMACHANDRA MENON, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.706 of 2006 ---------------------------------------- Dated this the 9th day of February 2009 J U D G M E N T R.BASANT,J The claimants are the appellants. They are the widow, two minor children, posthumous child and mother of the deceased - a person aged about 33 years at the time of his death. The first claimant/wife was aged 32 years. The two minor children who were living at the time of his death were aged 2 years and 3 years. The mother was aged 59 years and the 4th claimant child was born posthumously. An amount of Rs.19,00,000/- was claimed. The tribunal awarded an amount of Rs.3.74 lakhs as per the details shown below: Transportation to hospital - Rs.1,000/- Funeral expenses - Rs.3,000/- Loss of consortium expenses - Rs.10,000/- Loss of love and affection - Rs.15,000/- Pain and sufferings - Rs.5,000/- Loss of dependency - Rs.3,40,000/- Total - Rs.3,74,000/- 2. It was a case of instantaneous death. The appellants are aggrieved by the impugned award. They particularly raised M.A.C.A.No.706/06 2 objections against compensation awarded under the heads of loss of consortium, loss of love and affection and loss of dependency. 3. The young couple aged 33 years and 32 years were in the pink of their health. The children shown above were aged 3 years and 2 years, the third being posthumous. We are in agreement with the learned counsel for the appellants that the amounts awarded under the heads of loss of consortium and loss of love and affection are not adequate and sufficient. We are of the view that an amount of Rs.25,000/- each under these heads would have been fair, reasonable and just. 4. The more important challenge is raised against the quantum of compensation paid under the head of loss of dependency. Rs.2,500/- has been reckoned by the tribunal as the monthly earnings of the deceased. According to the claimants, the deceased was employed as an accountant in a firm. The representative of that firm was examined as PW2. He proved Ext.A7 salary certificate. The evidence of PW2 and Ext.A7 salary certificate show that the monthly income of the deceased was Rs.6,850/-. Except these two pieces of evidences, no better evidence was made available. We have one more indication about the nature of employment of the deceased and that can be gathered from the M.A.C.A.No.706/06 3 inquest report produced as Ext.A5 which indicates that the deceased was a permanent employee under the employer who issued Ext.A7 certificate. It will not be inapposite also to note that four souls were depending on the deceased and the 5th was yet to be born. The deceased met with his untimely death. Of course, the appellants could have made better evidence available to the Tribunal in the form of books of accounts maintained by the employer to show monthly remuneration of the deceased and Provident Fund accounts if any available. Those have not of course been produced. 5. But computation of compensation is not merely a science; but also an art. All relevant inputs can be taken into account. Law cannot be far removed from life. It is only reasonable to assume that an accountant in the Kerala context must be getting a salary definitely above Rs.2,500/- from an established employer like the one who employed the deceased. We are not of the view that any certificate pressed into court and the oral evidence in support of the same must be swallowed by the Tribunal; but reasonableness can never be a casualty. Taking the totality of circumstances into account, we are of the opinion that even if Ext.A7 is not accepted entirely, it would be absolutely reasonable to assume that the M.A.C.A.No.706/06 4 deceased must be having a carry home income of RS.3,750/- atleast to support and maintain his family consisting of the claimants and himself. We are of the opinion that Rs.3,750/- can, in the facts and circumstances of this case, be safely reckoned as monthly income of the deceased. 6. The learned counsel for the Insurance Company contends that 17 has been accepted as the multiplier and for this purpose, inspiration was drawn from the second schedule. The learned counsel contends that while adopting the multiplier in the second schedule even as a guideline, the realities of the situation should not be forgotten. A claimant under Section 163A of the M.V.Act is not likely to get other amounts awarded in the instant case and that may be borne in mind while considering the acceptability of the multiplier as 17. We do take note of that contention. In the facts and circumstances of this case, where the 4th claimant/appellant child is a posthumous child and the widow is one aged 32 years, we are of the opinion that acceptance of 17 as the multiplier is most reasonable and fair. 6. On the basis of the above discussions, we refix the compensation amount payable under the following three heads as shown below: M.A.C.A.No.706/06 5 Loss of consortium - Rs.25,000/- (instead of Rs.10,000/-) Loss of love and affection - Rs.25,000/- (instead of Rs.15,000) Loss of dependency (Rs.3,750/- x 2/3 x 12 x 17) - Rs.5,10,000/- (instead of Rs.3,40,000/-) 7. There is a further contention that interest has been awarded only at the rate of Rs.6% per annum. The learned counsel prays that the interest may be awarded atleast at the rate of 7.5%. We accept the same. 8. In the result, a) This M.A.C.A is allowed. The impugned award is modified to the above extent. b) The impugned award is upheld in all other respects. c) Interest shall of course be paid at the rate of 7.5% per annum. (R.BASANT, JUDGE) (P.R.RAMACHANDRA MENON, JUDGE) jsr M.A.C.A.No.706/06 6 M.A.C.A.No.706/06 7 R.BASANT & P.R.RAMACHANDRA MENON, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009