Partly allowed

Vasnathakumari v. K.M.Salim

Kerala HC4 Nov 2013MACA/456/2009

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded to the dependents of a deceased motor-accident victim. While rejecting unexamined income evidence, the Court increased the pecuniary loss award based on future prospects and enhanced consolation and love and affection heads for the wife and minor child.

What did the court decide?

Enhanced total compensation awarded by Rs.1,39,000/- with 9% interest to be paid by the Insurance Company.

Vasnathakumari Vs K.M.Salim — Insurance | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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MONDAY, THE 4TH DAY OF NOVEMBER 2013/13TH KARTHIKA, 1935

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MACA.No. 456 of 2009 ( )

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AGAINST THE AWARD IN OPMV 2227/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA.

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APPELLANT(S)/PETITIONERS:

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1. VASANTHAKUMARI, W/O. MOHANAN, AGED 40 YEARS, VALIYAPARAMBU, WARD NO. 7 OF PUNNAPRA SOUTH PANCHAYATH, ALAPPUZHA.

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2. VISHNU, S/O. MOHANAN, MINOR AGED 14 YEARS, DO....DO....

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BY ADV. SRI.R.AZAD BABU

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RESPONDENT(S):

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1. K.M. SALIM, S/O. MAKKAR, KANAMPURAM, VATTIKKATTUPADY, PERUMPAVOOR, ERNAKULAM DIST.

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2. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH PERUMPAVOOR ERNAKULAM DIST REPRESENTED BY ITS BRANCH MANAGER.

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R2 BY ADV. SRI.M.RAJAGOPAL.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S.Siri Jagan & K. Ramakrishnan, JJ ============================== M.A.C.A.No.456 of 2009

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==============================

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=============================== Dated this, the 04^th day of November, 2013.

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J U D G M E N T

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K.Ramakrishnan, J.

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Claimants in OP(MV) No.2227 of 2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha, are the appellants herein. The appellants are wife and child of deceased Mohanan who died in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle owned and driven by the first respondent and insured with the second respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.3,42,000/- on various heads as follows;

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Compensation for the pecuniary loss caused to thepetitioners due to the death of Mohanan	Rs.3,12,000/-
Compensation for loss of love and affection	Rs.10,000/-
Compensation for loss of consortium to the firstpetitioner	Rs.10,000/-
Compensation forpain and suffering	Rs.5,000/-
Compensation for ambulance charge	Rs.2,000/-
Compensation for funeral expenses	Rs.3,000/-
Total	Rs.3,42,000/-

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Dissatisfied the quantum of compensation awarded, the appellants have preferred this appeal before this court seeking enhancement of compensation.

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Since the liability of the Insurance Company is admitted, we felt that the appeal can be disposed of at the admission stage itself, after hearing counsel for the Insurance Company, and notice has been issued to the first respondent in the petition to condone delay and he did not appear. So we

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dispense with notice to the first respondent in the appeal.

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Heard counsel for the appellants and counsel for the Insurance Company.

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Counsel for the appellants submitted that the deceased was working as a private accountant under several persons and getting not less than Rs.6,000/- per month. He had produced Ext. A6 certificate issued by the Secretary, Tax Consultants Associations Kerala, Alappuzha District Committee and also Ext. A5 certificate issued by the Village Officer, Punnapra to prove that he was getting an annual income of Rs.72,000/-. But the Tribunal has rejected those documents and arbitrarily fixed the monthly income as Rs.3,000/-, which is not correct. Further, future prospects of the deceased getting more income as years to pass also has not been taken

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into consideration while fixing the monthly income of the deceased. The first appellant was aged 40 years and the second appellant was only 7 years at the time of the death of the deceased and the amount awarded under the head “loss of consortium and love and affection” are also on the lower side. The amount awarded under the head 'funeral expenses' is also very low. No amount was awarded under the head 'loss of estate' as well. The Tribunal ought to have awarded a conventional amount under that head. According to the learned counsel for appellants, the appellants are entitled to get enhancement of compensation on all heads.

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On the other hand, counsel for the Insurance Company submitted that the persons who issued the certificates were not examined. So, the Tribunal was perfectly justified in not relying on those documents to prove the income of the deceased and rightly fixed monthly income of Rs.3,000/- and the amount of Rs.3,000/- during 2002 cannot be said to be low. Considering the age of the deceased, the amount awarded is just and proper and no interference is called for at the hands of this court.

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We have considered the contentions of both parties in detail.

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The case of the appellants was that the deceased was

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working as an accountant under several persons and getting Rs.6,000/- per month. In order to prove this, they produced Ext. A6 certificate issued by Secretary, Tax Consultants Associations Kerala, Alappuzha District Committee and also produced Ext. A5 certificate issued by the Village Officer, Punnapra which will go to show that the deceased was getting an annual income of Rs.72,000/-. The persons who issued the certificates were not examined. Without examining them, it is not safe to rely on those documents to prove his income. So the Tribunal was perfectly justified in not relying on these documents to fix the monthly income of the deceased.

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The fact that he was was working as an accountant under different persons is not seriously disputed. Considering the fact that he was aged only 47 and doing his work for long time and there is possibility of increase in his income in future as well, we feel that the amount of Rs.3,000/- fixed by the Tribunal appears to be on the lower side and we are inclined to enhance the same to Rs.4,000/- per month. If a recalculation is made on this basis, the appellants are entitled to get an amount of Rs.4,16,000/- (4000x12x13x2/3) instead of Rs.3,12,000/- awarded by the tribunal under the head 'loss of

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dependency'. There will be a difference of Rs.1,04,000/- and we are inclined to award that amount in addition the amount awarded by the Tribunal under that head.

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The first appellant is the wife of the deceased and aged only 40 years at the time of death of her husband. She has to look after her child of 7 years. At this age, there is no possibility of re-marriage as well. She had lost the support of her husband at the late stage of her life. So considering these aspects, the amount of Rs.10,000/- awarded by the Tribunal under the head 'loss of consortium' is on the lower side and we enhance the same to Rs.30,000/- from Rs.10,000/- awarded by the Tribunal. The second appellant was only 7 years at the time of death of his father. He has lost love and affection of his father at this young age. So, considering these aspects, the amount of Rs.10,000/- awarded by the Tribunal under the head 'compensation for loss of love and affection' is also on the lower side and we enhance the same to Rs.20,000/- from 10,000/-. No amount was awarded under the head 'loss of estate'. Normally some conventional amount will be awarded under that head. So, we award Rs.5,000/- under that head. We are not inclined to enhance any amount under other heads, as the amounts awarded under other heads are just and

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proper.

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In all, the appellants will be entitled to get an additional compensation of Rs.1,39,000/- over and above what has been awarded by the Tribunal, which the second respondent Insurance Company is liable to pay with 9% interest per annum from the date of petition till date of payment. Two months' time is granted to the Insurance Company to deposit the amount as well. The amount due to the minor shall be deposited in a nationalized bank till he attains majority and the first appellant shall receive interest accrued on the deposit for the welfare of the minor.

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With the above modification of the impugned award of the Tribunal, the appeal is disposed of.

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Sd/- S. Siri Jagan, Jugde.

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Sd/- K.Ramakrishnan, Judge.

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[True copy]

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P.A to Judge

Vasnathakumari v. K.M.Salim

Case brief

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Vasnathakumari v. K.M.Salim

Case brief

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