IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 814 of 2006()
1. P.SUJATHA,
... Petitioner
2. SUBINDAS, S/O.BABURAJ, (MINOR),
3. SUNISHA, D/O.BABURAJ, (MINOR),
Vs
1. THE NEW INDIA ASSURANCE CO. LTD.,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SRI.VPK.PANICKER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :02/12/2009
O R D E R
P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ.
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M.A.C.A. No. 814 OF 2006
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Dated this the 2nd December, 2009
J U D G M E N T
P.R. Ramachandra Menon, J:
Appellants are before this Court, seeking for enhancement
of compensation in respect of the death of one Baburaj, who was
a passenger in an autorickshaw bearing No.KL.13/F-4250.
2. On 07.05.2002 at about 3.50 p.m., while the deceased
was travelling in the aforesaid autorickshaw, a bus bearing
No.KL.13/B-8260 came from the opposite side and collided with
the autorickshaw, causing fatal injuries leading to the death of
the said passenger, which led to the Claim Petition preferred by
the legal representatives of the deceased. The first respondent
before the Tribunal was the owner-cum-driver of the bus and the
second respondent was the insurer. It is revealed from the
award passed by the Tribunal that the matter was not contested
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by any of the respondents including the insurer, who did not
even file any written statement. The only evidence before the
Tribunal were Exts. A1 to A3 produced and marked from the part
of the claimants. On the basis of the available materials on
record, the Tribunal arrived at a finding that the accident was
only because of the negligence on the part of the owner-cum-
driver of the bus and hence that the claimants were liable to be
compensated by the respondents.
3. With regard to fixation of quantum, the Tribunal
observed that the deceased was aged 34 years . It was the case
of the claimants that the deceased was a ‘cook’ in a hotel with a
monthly income of Rs.5000/-. Since absolutely no
acceptable/reliable evidence was adduced from the part of the
claimants to prove the employment or income, the Tribunal
reckoned only a notional income of Rs.2,000/-. Considering the
age of the deceased as 34 years, ’17’ was adopted as the
proper multiplier and accordingly, a sum of Rs.2,72,000/- was
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awarded towards ‘loss of dependency’. The Tribunal awarded
further amounts under other permissible heads, such as
Rs.10,000/- towards ‘loss of consortium to the first petitioner’,
Rs.5,000/- towards ‘loss of estate’, Rs.10,000/- towards ‘loss of
love and affection’, Rs.10,000/- towards ‘pain and suffering’,
Rs.500/- towards ‘by-stander’s expense’, Rs.1000/- towards
‘medical expense’ and Rs.2000/- each towards ‘transportation
expense’ and ‘funeral expense’ respectively, thus making a total
of Rs.3,12,500/-, which was directed to be satisfied with 7% per
annum by the insurer, since the coverage under the policy was
not disputed from the part of the insurer.
4. The learned Counsel for the appellants submits that the
appellants could not trace out the bills in respect of the treatment
undergone by the deceased from the date of the accident (i.e.
07.05.2002) till his death occurred on 11.05.2002 earlier.
Subsequently, all the bills have been traced out and they have
been produced before this Court, along with the Certificate
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dated 13.09.2005 issued by the employer of the deceased as to
the employment and the monthly income of the deceased as
Rs.5000/-. The said documents have been produced before this
Court along with I.A.No. 1156 of 2006, supported by an affidavit,
seeking to receive the same in additional evidence. The learned
Counsel for the appellants submits that the amounts awarded
under various heads are not in conformity with the actual facts
and figures and that the quantum is liable to be enhanced.
5. True, the documents now produced before this Court
were not produced before the Tribunal. However, it remains a
fact that no dispute was ever raised from the part of the
Insurance company as to the alleged occupation, income or such
vital particulars, by filing any written statement. No counter
affidavit has been filed in the present I.A. as well. In the said
circumstances, we are constrained to award a sum of Rs.
27,976/- ( which is rounded to Rs.28,000/-) towards the ‘medical
expense’ actually incurred by the appellants in respect of the
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5
treatment of the deceased. After giving credit to the sum of
Rs.1000/- already awarded by the Tribunal under this Head , the
appellants will be entitled for the balance sum of Rs.27,000/-
(Rupees twenty seven thousand only).
6. It has to be borne in mind that the deceased was
maintaining a family consisting of his wife and two minor
children. Though the pleadings raised by the claimants before the
Tribunal are not controverted in any manner, we are not inclined
to accept the monthly income as Rs.5000/-, as contended by the
appellants. However, we find that some modification is required
taking note of the engagement and also in view of the
employment certificate produced before this Court. In the said
circumstances, we modify the monthly income and reckon the
same as Rs.3000/-, instead of Rs.2000/- as adopted by the
Tribunal. On re-calculating the compensation, as above,
adopting the very same multiplier, i.e., ’17’ as adopted by the
Tribunal, the claimants will be entitled to get an additional
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compensation of Rs.1,36,000/- (Rupees one lakh thirty six
thousand only) towards ‘loss of dependency’. The Tribunal has
awarded only a sum of Rs.10000/- towards ‘loss of love and
affection’. We find it fit and proper to have it enhanced to
Rs.15000/- (Rupees fifteen thousand only), whereby the
appellants will be entitled for the balance of Rs.5,000/- (Rupees
five thousand only) under this head, after giving credit to the
sum of Rs.10,000/- already awarded.
7. The learned Counsel for the appellants vehemently
submits that the amount awarded towards ‘funeral expenses’ is
much on the lower side. The appellants are hereby awarded a
sum of Rs. 500/- (Rupees five hundred only) under this head.
Yet another sum of Rs.500/- (Rupees five hundred only) is also
awarded towards ‘damage to clothing’.
8. In the result, the appellants are awarded a further sum
of Rs.1,69,000/- (Rupees one lakh sixty nine thousand only) as
the balance compensation payable in respect of the death of the
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deceased. The said amount shall be satisfied by the Insurance
Company with interest at the rate of 7% per annum, as
expeditiously as possible, at any rate within a period of two
months from the date of receipt of a copy of the judgment.
Appeal is allowed in part. No cost.
P.R. RAMAN,
JUDGE.
P.R. RAMACHANDRA MENON,
JUDGE.
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