Usha and Others vs Muhammed P.M. and Others

P.V. Asha, J.—The appellants are the widow and two children of deceased Devadasan who met with an accident on 24-8-2005. While the deceased was walking through the side of Mavoor road, a motor cycle hit him down causing severe injuries. He succumbed to the injuries on the same day.

Claim petition was filed seeking compensation of Rs. 4,00,000/-. But the Tribunal awarded a sum of Rs. 2,53,666/- only. This appeal is filed seeking enhancement of compensation.

We heard the learned Counsel appearing for both sides.

The Tribunal reckoned the income of the deceased as Rs. 22,000/- per year. This is a case where the first appellant got herself examined as P.W. 1 and deposed that the deceased was earning Rs. 200/- per day. There was no evidence to the contrary adduced by the opposite side. The accident occurred in the year 2005. The deceased was working as a Mason. The claim that he was earning Rs. 200 per day cannot be said to be excessive. Therefore, we reckon the income as Rs. 5,000/- per month, in view of the fact that there would not be work on all 30 days. The compensation awarded by the Tribunal towards loss of dependency is Rs. 2,34,666/-. The deceased was aged 36 years. The proper multiplier is 15. 1/3rd of income is deducted towards his personal expenses. Therefore, the compensation under the head of loss of dependency will come to Rs. 6,00,000/- (5000 x 12 x 15 x 2/3). The Tribunal has awarded a sum of Rs. 10,000/- under the head of loss of consortium, an amount of Rs. 2,500/- towards funeral expenses, a sum of Rs. 5,000/- towards pain and suffering and no amount has been awarded towards loss of love and affection. In the light of the judgment in Rajesh and Others Vs. Rajbir Singh and Others, ), the claimants are entitled to Rs. 1,00,000/- under the head of loss of consortium; Rs. 1,00,000/- towards loss of love and affection and Rs. 25,000/- towards funeral expenses. We enhance the compensation towards pain and suffering to Rs. 10,000/- and grant Rs. 35,000/- towards loss of estate.

The Tribunal has found that the deceased was under the influence of Alcohol and deducted 10% for contributory negligence. It is a case where the deceased was a pedestrian. The learned Counsel for the appellant pointed out that the consumption of alcohol is not proved, based on any medical evidence or analysis. It is merely on the basis of the observation, that there was a sour smell of Alcohol from the contents of stomach, contained in the post mortem certificate that the Tribunal arrived at a finding that the deceased was under the influence of alcohol and hence he was negligent. As far as a pedestrian is concerned, there cannot be any contributory negligence even assuming that there was smell of Alcohol. Moreover, in the absence of any medical evidence or reliable evidence adduced by the opposite side to prove the influence of alcohol or any contributory negligence on the part of the deceased, we are of the view that the finding of the Tribunal is without any basis. Therefore, we vacate the same. The appellants will be entitled to the entire amount of compensation, that is Rs. 8,71,500/-, without any deduction. The award passed by the Tribunal is modified as follows.

The enhanced compensation will carry interest at the rate of 9% per annum from the date of petition. The Insurance Company will deposit the amount within three months from the date of receipt of a copy of this judgment.

Out of the total compensation, the widow is entitled to 50% and the remaining 50% will be to the appellants 2 and 3 in equal shares. The share due to the third appellant, who is a minor shall be kept in fixed deposit in a nationalised bank till she attains majority. The other appellants can withdraw their share immediately on deposit by the Tribunal.

The court fee, if any, in deficit shall be recovered till the amount is deposited by the insurance company.

Appeal is allowed accordingly and the parties shall suffer their respective costs.