Deivanai vs Shihabudheen C.K. S/o Ahmedkutty

Sophy Thomas, J.

This appeal has been preferred by the claimants in O.P (MV) No.582 of 2004 on the file of Motor Accidents Claims Tribunal, Irinjalakuda, impugning the award dated 11.05.2010, on the ground of inadequacy of compensation.

The appellants are the wife and son of the deceased Purushothaman.  Respondents 4 and 5 are also the children of deceased Purushothaman in another wife and the 6th respondent is the mother of the deceased.

The deceased Purushothaman was a Driver by profession and on 25.08.2003, while he was driving a Tata Sumo Car, KL-11/E 4824 lorry driven by the 1st respondent in a rash and negligent manner, hit against his Tata Sumo, thereby he sustained fatal injuries and later succumbed to death.

The  appellants  approached  the  Tribunal  claiming compensation of Rs.4 lakh and the Tribunal awarded compensation of Rs.2,46,000/-. Aggrieved by the quantum of compensation awarded by the Tribunal, the appellants have approached this Court.

The 1st respondent was the driver of the offending lorry, 2nd respondent was its owner and 3rd respondent was its insurer. The accident, death of Sri.Purushothaman due to the injuries suffered in the accident, and the policy of the offending vehicle are not in dispute.

The respondents 1, 2 and 4 to 6 remained ex parte before the Tribunal as well as before the appellate court.

Heard Sri.Sheji P Abraham, learned counsel appearing for the appellants and Smt.Deepa George, learned counsel appearing for the 3rd respondent-Insurance Company.

According to the appellants, deceased Purushothaman was aged only 45 at the time of death and he was a Driver by profession earning monthly income of Rs.5,000/-. But, the Tribunal fixed his notional income @ Rs.2,000/- only, and that is the main challenge posed by them in this appeal. Though there is no documentary evidence to prove the occupation or income of deceased Purushothaman, Ext.A2 charge sheet itself will show that, the accident occurred while the deceased was driving a Tata Sumo vehicle, and his age was 45 as on the date of accident. Though there is nothing to prove his income, going by the decision Ramchandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited (AIR 2011 SC 2951), a notional income of Rs.4,000/- can be fixed, as the accident was in the year 2003, and the deceased was a 45 year old Driver. Going by the decision National Insurance Company Ltd. vs. Pranay Sethi and Others (AIR 2017 SC 5157), a Driver aged 45 having self employment, without any fixed salary, is eligible for 25% addition towards future prospects. So, his income could have been fixed @ Rs.5,000/-. Since he was having more than one dependent, 1/3rd has to be deducted towards his personal expenses. So, the balance income could have been Rs.3,333/-. The multiplier applicable could have been 14 instead of 13 applied by the Tribunal. So, the loss of dependency could have been assessed as Rs.5,59,944/-(3333x12x14). Learned Tribunal already awarded Rs.2,08,000/- towards loss of dependency. So, the appellants are eligible to get the balance amount of Rs.3,51,944/- as enhanced compensation towards loss of dependency.

Towards loss of love and affection and loss of consortium, learned Tribunal awarded Rs.15,000/- each. Going by Pranay Sethi's case cited supra, the appellants are eligible to get Rs.40,000/- towards loss of consortium; spousal as well as parental, with 10% hike for the delay of every three year. In Afsana and others vs. Kundu Knit Fab Pvt. Ltd (2022 ACJ 754), the Apex Court considered the issue of 10% hike for the delay of every three years, and found that, since the accident had taken place in the year 2001, no hike can be granted except the conventional heads as per the principles laid down in Pranay Sethi's case cited supra.

In the case on hand, the accident was in the year 2003. Following Afsana’s case cited supra, the appellants are eligible to get compensation under the conventional heads, as laid down in Pranay Sethi’s case, without any hike for the delay of every three years, considering the fact that the accident was of the year 2003. So, the appellants are eligible to get Rs.40,000/- each towards loss of consortium amounting to Rs.80,000/- in total. Since the learned Tribunal already awarded Rs.30,000/- in total towards loss of love and affection and consortium, that amount has to be deducted and so, the balance entitled by the appellants is Rs.50,000/- under the head loss of consortium.

Towards funeral expenses, Rs.3,000/- was awarded by the Tribunal. Following the principles laid down in Pranay Sethis’s case cited supra, the appellants are eligible to get Rs.15,000/-. So, they will get the balance Rs.12,000/- as enhancement towards funeral expenses.

Towards loss of estate, nothing was awarded by the Tribunal. Based on the principles laid down in Pranay Sethi’s case, the appellants are eligible to get Rs.15,000/- and that amount could be awarded.

Learned Tribunal awarded Rs.5,000/- towards pain and suffering. Since this is a case of death, that amount is liable to be deducted.

Towards transportation expenses, Rs.5,000/- was claimed. But, nothing was awarded by the Tribunal. The accident occurred at Nellayi, Kozhikode, and the body of the deceased had to be taken to Coimbatore in Tamil Nadu. So, the claim of Rs.5,000/- towards transportation expenses seems to be reasonable and that amount also is awarded.

Head of claim

(1)

Amount awarded by the Tribunal (2)

Amount awarded in appeal

(3)

Amounts deducted in appeal (4)

Difference to be drawn as enhanced compensation (5)

Loss of dependency

Rs.2,08,000/-

Rs.5,59,944/-

-

Rs.3,51,944/-

Loss of love and affection &

Rs.30,000/-

Rs.80,000/-

-

Rs.50,000/-

loss of consortium

(40000x2)

Funeral expenses

Rs.3,000/-

Rs.15,000/-

-

Rs.12,000/-

Loss of estate

-

Rs.15,000/-

-

Rs.15,000/-

Pain and  uffering

Rs.5,000/-

-

Rs.5,000/

-

-

Transportation expenses

-

Rs.5,000/-

-

Rs.5,000/-

Total

Rs.5,000/-

Rs.4,33,944/-

Enhanced compensation (433944-5000)

Rs.4,28,944/-

In the result, the appellants are entitled to get enhanced compensation of Rs.4,28,944/-. As already stated, respondents 4 to 6 are ex parte before the Tribunal as well as before the appellate court and they have not put forward any claim of compensation on the death of Sri.Purushothaman. Regarding the 2nd appellant also, he is the major son of the deceased Purushothaman, and strictly speaking, he is not a dependent. So, from the award amount, a lumpsum amount of Rs.1 lakh can be given to the 2nd appellant including the parental consortium of Rs.40,000/- and the remaining amount with interest will go to the 1st appellant-the wife of the deceased.

The 3rd respondent/insurer is directed to deposit a lumpsum amount of Rs.1 lakh in the Bank Account of the 2nd appellant, and the remaining amount with interest (interest for the whole amount) @ 7% per annum from the date of petition till the date of deposit (excluding the period from 25.09.2008 till 03.03.2010 during which period the O.P was lying dismissed, and also for 42 days of delay in filing the appeal), in the Bank Account of the 1st appellant, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund.

The appeal is allowed accordingly. No order as to costs.