Mrs. Shiny & Others v. Simon Thomas & Others
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA THURSDAY, THE 12TH DAY OF FEBRUARY 2015/23RD MAGHA, 1936 MACA.No. 814 of 2011 ( ) ------------------------- AGAINST THE AWARD IN OPMV 3580/2004 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 31-12-2010 APPELLANT(S)/PETITIONERS:
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1. MRS.SHINY,W/O.LATE DAVIS,AGED 38 YEARS, R/AT 'OLLUKKARAN HOUSE', KANNAPURAM PULLAZHI, THRISSUR.
2. DENITTA,D/O.LATE DAVIS,AGED 14 YEARS, MINOR REP.BY MOTHER AND GUARDIAN IST APPELLANT MRS.SHINY, W/O.LATE DAVIS, R/AT 'OLLUKKARAN HOUSE' KANNAPURAM, PULLAZHI, THRISSUR.
3. DENITHA,D/O.LATE DAVIS,AGED 11 YEARS, MINOR REP.BY MOTHER AND GUARDIAN IST APPELLANT MRS.SHINY, W/O.LATE DAVIS, R/AT 'OLLUKKARAN HOUSE' KANNAPURAM, PULLAZHI, THRISSUR.
BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S):
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1. SIMON THOMAS,S/O.THOMAS,HOUSE NO.44/1722 DESHABHIMANI ROAD, KALOOR, ERNAKULAM DISTRICT 682 017.(DELETED)
2. LAIJU.P.J.S/O.JOSEPH,PUTHIYAVEETTIL HOUSE, CHEMMANAGIRI, KULASEKHARAMANGALAM PO VAIKOM, KOTTAYAM DISTRICT 686 608.
3. THE DIVISIONAL MANAGER,NATIONAL INSURANCE COMPANY LTD., THRIPUNITHURA DIVISION ERNAKULAM DISTRICT, KERALA 682 301.
(NAME OF R1 DELETED AS PER ORDER I N IA 1116/2014 DT.2.4.2014) R,R3 BY ADV. SMT.RAJI T.BHASKAR R,R2 BY ADV. SMT.P.VIJAYAMMA R,R2 BY ADV. SRI.P.J.ANILKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
T.R. RAMACHANDRAN NAIR & P.V. ASHA, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.814 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of February, 2015
JUDGMENT
Ramachandran Nair, J.
The claimants are the widow and two minor children of deceased late Shri Davis who died in a motor vehicle accident occurred on 4.10.2004. He was riding a scooter bearing Reg. No.KL-3/B 598 through Thrissur - Palakkad public road. The accident had occurred at about 8.45 p.m.. The offending vehicle is a tanker lorry bearing Reg. No.KL-7/AK/9727. Because of the injuries sustained, he was taken to Medical College Hospital, Thrissur wherein he succumbed to the injuries on the same day. He was aged 37 years and it was claimed that he was earning a sum of Rs.10,500/- per month.
2. The Tribunal considered the evidence of P.W.1, the proprietor of the Bus service by name "Balamuruga" in which the deceased was employed. According to him, the deceased was working since 2003 and was being paid Rs.350/- per day. It was also explained by him that
he was being employed 20 days per month. The employment of deceased under P.W.1 was not a disputed fact. The Tribunal rightly adopted Rs.4,500/- as the monthly income.
3. Learned counsel for the insurance company submitted that there is no documentary evidence to support the monthly income of the deceased.
4. We are of the view that in the light of the decision of the Apex Court in Minu Rout and another v. Sathya Pradyumna Mohapatra and others {2013 ACJ 2544}, paragraph 13, the monthly income of a driver can be taken as Rs.6,000/-. Therein, the Apex Court held that the Tribunal has got a statutory duty to fix fair and just compensation. It was further held that the Tribunal ought to have taken the salary of the deceased driver at Rs.6,000/- per month since the job of driver is a skilled job. Therein, the accident occurred in 2004 and therefore herein also, it will be safe to adopt the monthly income at Rs.6,000/- for the purpose of assessing compensation for loss of dependency. The Tribunal adopted the multiplier of 16. Going by the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010
(2) KLT 802 - SC), the correct multiplier will be 15 and we adopt the same. The Tribunal has awarded the compensation in the table given in paragraph 12. We find that towards transportation and funeral expenses, only a sum of Rs.5,000/- has been granted which we enhance to Rs.25,000/-. Towards pain and suffering, instead of Rs.6,000/- we grant an amount of Rs.10,000/-. Towards loss of consortium, we grant a sum of Rs.1 Lakh and towards loss of estate also we grant a sum of Rs.50,000/- instead of Rs.10,000/- granted by the Tribunal. Towards loss of love and affection, we grant a sum of Rs.1,50,000/- in total, as the claimants include two children who were minors. The total compensation is accordingly modified as follows: Head of claim Amount awarded by the Tribunal (Rs) Modified award passed by this Court (Rs) Transportation & funeral expenses 25000 Pain and suffering 10000 Loss of consortium 10000 100000 Loss of estate 10000 50000 Loss of dependency 588800 720000 Loss of love & affection 10000 150000 Total 1055000 (Rupees Ten Lakhs and fiftyfive thousand only)
The enhanced amount will carry interest at the rate of 9% per annum and the insurance company is directed to deposit the entire amount of compensation less the amount already deposited before the Tribunal, within a period of three months. The amount payable towards court fee for the total compensation will be recovered from the appellants from the amount deposited by the insurance company. We find that appellant No.3 is a minor even now. Therefore, the share of the minor as per the ratio specified by the Tribunal, will be deposited in a nationalised bank and we permit appellants 1 and 2 to withdraw the amount representing their shares.
The appeal is allowed as above. No costs.
(T.R. RAMACHANDRAN NAIR, JUDGE.) (P.V. ASHA, JUDGE.) kav/