IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1836 of 2005()
1. JOBY, AGED 25 YEARS,
... Petitioner
2. JISHA, AGED 23 YEARS,
3. LINTO, AGED 21 YEARS,
Vs
1. DHAYANDHA KUNDER,
... Respondent
2. JOHN KOLIAN, S/O.FLEIX KOLIAN,
3. M/S.NEW INDIA ASSURANCE CO. LTD.,
4. KUNJILA, W/O.PYLOTH,
For Petitioner :SRI.RAJIT
For Respondent :SRI.P.SANJAY
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :06/03/2009
O R D E R
R. BASANT & C.T. RAVIKUMAR, JJ.
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M.A.C.A No. 1836 OF 2005
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Dated this the 6th day of March, 2009
JUDGMENT
BASANT, J
Claimants before the Tribunal are the appellants before us.
They are three children (one of them minor) of the deceased who
was aged 58 years on the date of the accident on which day itself
he succumbed to the injuries. He was allegedly running a hotel
business and earning an income of Rs.4,000/- per month. The
third claimant had attained majority during the pendency of the
proceedings. An amount of Rs.2.75 lakhs was claimed as
compensation. Before the Tribunal the third claimant son
tendered oral evidence as PW1 and Exts.A1 to A11 were marked.
The Tribunal on an anxious consideration of all the relevant inputs,
came to the conclusion that the appellants are entitled to a total
amount of Rs.1.64 lakhs as per the details shown below:
1. Medical and transport expenses : Rs. 1,000/-
2. Pain and suffering : Rs. 10,000/-
3. Loss of love and affection : Rs. 10,000/-
4. Loss of estate : Rs. 10,000/-
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5. Funeral expenses : Rs. 5,000/-
6. Loss of dependency : Rs.1,28,000/-
(2,000 x 12 x 2/3 x 8)
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Total : Rs.1,64,000/-
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2. The said amount was directed to be paid along with
interest at 6% per annum. The appellants claim to be aggrieved
by the impugned order. What is the grievance? Called upon to
explain the nature of the challenge which the appellants want to
mount against the impugned award, the learned counsel for the
appellant first of all assails the multiplicand reckoned by the
Tribunal to arrive at the quantum of loss on the head of
dependency. Deceased was running a hotel. There are
indications to show that he had three children, two major girls and
a minor boy, depending upon him. The counsel fairly submits that
better evidence to prove employment and income of the deceased
has not been made available. But even then Tribunals constituted
to render rough and ready justice cannot throw their hands up in
helplessness and cannot consider themselves to be absolved from
the responsibility of ascertaining and awarding just and fair
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compensation merely because more authentic data was not made
available to them by the contestants. The totality of the inputs will
have to be taken into consideration. The societal context will have
to be borne in mind. It would be irrational and perverse in the
given circumstances to assume that the deceased was only
getting an amount of about Rs.2,000/- per mensem. Reasonable
amount must be reckoned as monthly income and not the amount
of Rs.2,000/- fixed by the Tribunal, contends counsel.
3. We are persuaded to agree with the submissions of the
learned counsel for the appellant. But, we must hasten to observe
that the burden is always on the claimant who is claiming
compensation for the loss suffered by him. If the claimant does
not discharge his burden to make satisfactory data available, the
claimant cannot cry hoarse that Tribunal has not done justice to
him. In cases like the instant one, definitely better evidence must
have been produced to prove with correctness and authenticity,
the actual loss suffered by the appellants. But even in the
absence of such authentic data reasonable inferences can be
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drawn. We take note of the fact that even for a non-earning
person the law from 1994 in the second schedule of Motor
Vehicles Act makes the assumption of prudence that the notional
income can be reckoned at Rs.1,250/- per month. In the given
facts and circumstances, bearing in mind the principle that, the
appellants will have to be blamed for not making available the
necessary authentic materials before court, we are satisfied that
the deceased a person aged 58 years and who had two major
children and a minor son depending on him, and who was running
a hotel must have even earning an income of not less than
Rs.2,500/- per mensem. That can safely be assumed in the facts
and circumstances of this case.
4. Learned counsel for the appellant then contends that the
interest has been awarded only at the rate of 6% per annum.
Relying on precedents the counsel contends that, at any rate,
interest must have been awarded at the rate of 7.5 % per annum.
We agree with the learned counsel.
5. On the basis of the above discussions, we find that the
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appellants shall be entitled to a further amount of Rs.32,000/-
(2,500 x 12 x 2/3 x 8 – 1,28,000). We further direct that the entire
amount of compensation shall bear interest at the rare of 7.5 per
annum from the date of petition to the date of payment. The 2nd
respondent is represented through counsel. There is no
representation for the other respondents.
6. This appeal is accordingly allowed in part, to the above
extent.
R. BASANT, JUDGE
C.T. RAVIKUMAR, JUDGE
ttb
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