Partly allowed

Rajakumari v. Jayarajan

Kerala HC23 Feb 2017MACA/1571/2008

Case brief

AI extract

What is this about?

The High Court allowed the motor accident claim appeal in part. It enhanced the compensation awarded by the Tribunal by ₹2,64,100, primarily by increasing the notional monthly income and heads of loss, directing the respondent insurer to pay the amount with interest.

What did the court decide?

Appeal allowed in part; compensation enhanced by ₹2,64,100 with 7.5% p.a. interest to be paid by the insurer within two months.

Rajakumari Vs Jayarajan — Motor Accident Claims | Kerala HC (2017)

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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 C.K.ABDUL REHIM

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THE HONOURABLE MRS. JUSTICE SHIRCY V.

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THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938

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MACA.No. 1571 of 2008 ( )

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AGAINST THE AWARD IN OP(MV) NO.779/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATTINKARA DATED 24.11.2007

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APPELLANT(S)/APPLICANTS 1 TO 3 :

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1. RAJAKUMARI, AGED 31, W/O.LATE THULASIMONY, THEKKOVILA VEEDU, PALLIKKONAM, ARUMANA PO., KANYAKUMARI.

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2. ARUN DEV.,(MINOR) RESIDING AT DO. DO.

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3. ANISHA, (MINOR) RESIDING AT DO. DO.

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THE APPELLANTS 2 AND3 BEING MINORS ARE, REP. BY APPELANT NO.1 WHO IS NONE OTHER THAN, THEIR MOTHER.

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BY ADVS.SRI.R.T.PRADEEP

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SRI.V.VIJULAL

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RESPONDENT(S) RESPONDENTS & APPLICANTS 4 AND 5 :

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1. JAYARAJAN, S/O.GOVINDAN, MUKKENIPALA VILAI VEEDU, AYINKONAM, PARASALA PO., NEYYATTINKARA.

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2. THE MANAGER, NEW INDIA ASSURANCE CO.LTD. 2ND FLOOR, SWADESHABIMANI COMPLEX,, NEAR KSRTC BUS STAND, NEYYATTINKARA.

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3. MANAGER, UNITED INDIA INSURANCE CO.LTD., MAIN ROAD, MARTHANDAM, KANYAKUMARI.

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4. DASAMMAL, THEKKEVILA VEEDU, PALLIKANAM, ARUMANA P.O., KANYAKUMARI.

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5. LATHA, R/AT DO.DO.

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R3 BY ADV. SRI.K.SANDESH RAJA R2 BY ADV. SRI.RAJAN P.KALIYATH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

AMV

C.K.ABDUL REHIM

SHIRCY.V, JJ.

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M.A.C.A No.1571 of 2008

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...................................................

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Dated this the 23^rd day of February, 2017 JUDGMENT

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C.K.ABDUL REHIM, J.

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Claimants before the Motor Accident Claims Tribunal, Neyyattinkara in O.P.(MV) No.779 of 2003 are the appellants herein, seeking enhancement of the amount of compensation awarded.

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In the accident in question, one Tulasimony died on 28.05.2003; when a Tempo Van hit against the Motor Cycle on which he was riding. The appellants are the wife, two minor children, and parents of the deceased. The Tribunal found that the accident occurred solely due to the rash and negligent driving of the Tempo Van by the 1^st respondent. Hence the 2^nd respondent insurance company was held liable for payment of the amount of compensation. In the present appeal, there is no dispute with respect to the findings of the Tribunal on the aspect of negligence and the liability.

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The appellants claimed before the tribunal that the deceased was engaged in the sale of bricks. Ext.A4 agreement was

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M.A.C.A No.1571 of 2008

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produced and P.W.1 was examined to prove that the deceased had entered into an agreement with P.W.1 for purchase of soil from the land belonging to the latter, presumably for the purpose of manufacturing bricks. The Tribunal on accepting contentions of the 2^nd respondent that the above said document is not reliable and the same is not properly proved, discarded the evidence by observing that the appellants have failed in establishing the occupation and income of the deceased through any reliable evidence. However, the Tribunal adopted notional income @ ₹ 2,400/- per month for the purpose of computing the loss of dependency. Learned counsel for the appellants contended that, discarding of the evidence adduced to prove the occupation of the deceased was not proper. So also it is contended that the notional income adopted by the Tribunal is highly inadequate and insufficient.

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While considering the above said issue, we find that the claim of the appellants was that the deceased was a dealer in bricks. But it was not established through any convincing evidence. The appellants have not produced any documents relating to the business conducted. Nor had they produced anything to prove the income derived out of the said business. However, we are of the opinion that the amount of 2,400/- adopted as notional₹ income is inadequate. Considering the fact that the accident

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M.A.C.A No.1571 of 2008

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took place in the year 2003 and also considering the socioeconomic situations prevailed at that time, we reasonably re-fix the notional income at 3,500/- per month. The Tribunal had₹ deducted 1/3^rd of the notional income towards personal expenses of the deceased, considering the fact that the number of dependents were five. Taking note of the legal position remaining settled by the Hon'ble Supreme Court, we are inclined to correct the same as 1/4^th . Thus the total compensation awarded under the head of loss of dependency need to be reworked as 5,35,500/- (3500x3/4x12x17). This will entitle the₹ appellants for an enhancement of 2,09,100/- under that count (₹ ₹ 5,35,500 - 3,26,400/-).₹

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The Tribunal had awarded only a sum of 15,000/- towards loss₹ of consortium. We are inclined to increase the said amount to ₹50,000/-, whereby the appellants will be entitled for an enhancement of 35,000/-. So also, the amount of 15,000/-₹ ₹ granted towards loss of love and affection is re-fixed at 25,000/-,₹ thereby enhancing the claim by a further sum of 10,000/-. The₹ amount granted under the head of funeral expenses is re-fixed at ₹15,000/-, which will entitle for a further enhancement of ₹10,000/-. We do not find any ground to interfere with respect to the various amounts awarded under other heads. Accordingly, the appellants will be entitled to get a total enhancement of

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M.A.C.A No.1571 of 2008

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Rs.2,64,100/-. The enhanced amount is directed to be apportioned among the appellants at the ratio as fixed by the Tribunal.

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Hence, the above appeal is allowed in part by enhancing the total compensation awarded by the Tribunal by a further sum of ₹2,64,100/-, which amount will carry interest @7.5% p.a. from the date of the claim petition till realization. The 2^nd respondent insurance company is directed to make payment of the amount within a period of two months.

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It is made clear that on such deposit the appellants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders considering the question of permitting withdrawal.

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Sd/- (C.K.ABDUL REHIM , JUDGE)

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sd/- (SHIRCY.V., JUDGE)

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AMV/27/02/2017

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/TRUE COPY/ P.A.TO JUDGE

Rajakumari v. Jayarajan

Case brief

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Rajakumari v. Jayarajan

Case brief

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