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2017 DIGILAW 1212 (KER)

P. SUJATHA W/O. LATE RAMAKRISHNAN K, "SRUTHI" v. ORIENTAL INSURANCE COMPANY LTD.

2017-09-13

ANU SIVARAMAN, C.T.RAVIKUMAR

body2017
JUDGMENT : Ravikumar, J. 1. This appeal is directed against the judgment and award dated 23.02.2015 in O.P.(M.V) No.195 of 2013 passed by the Motor Accidents Claims Tribunal, Tirur. The petitioners, who are the legal heirs of the victim of a motor vehicle accident that occurred on 24.09.2012, filed O.P.(M.V) No. 195 of 2013, under Section 166 of the Motor Vehicles Act, 1988 seeking a compensation of Rs.19,15,000/-. As per the impugned award, the Tribunal granted a compensation of Rs.11,49,500/- with interest at the rate of 9% per annum from the date of petition till realisation. It is aggrieved by and dissatisfied with the quantum of compensation that the captioned appeal has been preferred. 2. A short narration of facts involved in the case is required for a proper disposal of the appeal. The victim, Sri. Ramakrishnan was riding his motor cycle bearing Registration No. KL 10-G-3262 from Kakkad to Kottakkal through Kozhikode-Thrissur National Highway on 29.09.2012. At the place of occurrence, it was hit by a motor car bearing Registration No. KL-10-Y-6215 driven by the 2nd respondent. On sustaining injury, Ramakrishnan was immediately taken to Al-Shifa Hospital, Perinthalmanna and from there he was shifted to MIMS Hospital, Kottakkal. Later, he was treated at Baby Memorial Hospital, Kozhikode. Thus, he remained as an inpatient for a period of 48 days under different spells. In fact, it was while undergoing treatment that he succumbed to the injuries. It is in the said circumstances that the appellants, who are his legal heirs, filed the aforesaid claim petition. 3. Before the Tribunal on the side of the appellants, the Doctor who treated the deceased was examined as PW1 besides getting marked Exhibits A1 to A24. No evidence, either oral or documentary was adduced by the respondents. After appreciating the evidence on record as also the rival contentions, the impugned award was passed by the Tribunal as mentioned herein before. 4. The learned counsel for the appellants contended that the Tribunal has deprived just compensation to the appellants. In elaboration of the said contention, it is contended that the Tribunal had erroneously fixed the monthly income of the deceased and wrongly effected 1/3rd deduction from it while calculating compensation for loss of dependency. 4. The learned counsel for the appellants contended that the Tribunal has deprived just compensation to the appellants. In elaboration of the said contention, it is contended that the Tribunal had erroneously fixed the monthly income of the deceased and wrongly effected 1/3rd deduction from it while calculating compensation for loss of dependency. It is the contention that the deceased was a retired Sub Divisional Engineer from Bharat Sanchar Nigam Ltd. and was drawing a monthly pension of Rs.21,957/- at the time of the accident. He was then aged 65 years. However, the Tribunal took only Rs.12,000/- as monthly income for calculation purpose and then effected deduction of 1/3rd of the same towards personal and living expenses of the deceased which he would have incurred had he been alive. In short, for calculation purpose only Rs.8,000/- was taken into account by the Tribunal. According to the learned counsel, the Tribunal ought to have taken the entire pension as monthly income for calculation purpose. 5. The learned counsel appearing for the respondent Insurance Company countered the said contentions and submitted that the Tribunal cannot be found fault with in not accepting the claim of the appellants regarding the monthly income of the deceased. The learned counsel further submitted that admittedly the deceased was a retiree and he was then drawing only a monthly pension of Rs.21,957/-. Since the 1st appellant is none other than the wife of the deceased, upon his demise she must have started drawing family pension. In the light of the aforesaid rival contentions, we will consider firstly the question whether the Tribunal had erred in fixing the monthly income of the deceased for calculation purpose. True that loss of life of a family member is not ransomable as far as the family is considered. The essential consideration, which has to be kept in mind while granting compensation for loss of dependency is of the financial benefit of which the family can reasonably be said to have been deprived by the span of the life of the deceased having been cut short on account of the fatal accident. The starting point for such calculation must, therefore, be the amount of income of the deceased earned by dint of his labour. Certainly, the ascertainment of which, to a great extent may depend upon the regularity of his employment. The starting point for such calculation must, therefore, be the amount of income of the deceased earned by dint of his labour. Certainly, the ascertainment of which, to a great extent may depend upon the regularity of his employment. Then, there must be an estimate of how much was required or expended for his own personal and living expenses. In that regard, the position is now settled by the decision of the Hon'ble Apex Court in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]. 6. Going by the decision in Sarla Verma's case (supra), it depends upon the marital status or the number of surviving dependent family members of the deceased. In case the deceased was a bachelor 50% of the income shall be deducted on that count while calculating dependency compensation. If the deceased was married it depends on the number of surviving dependent family members. The decision would thus make it clear that what is relevant in that regard, is not the actual number of claimants or surviving family members, but what matters is the number of surviving dependent family members. The 1st appellant, the widow was aged 52 years at the time of death of Sri. Ramakrishnan and the fact that she is being paid family pension is not in dispute. Appellants 2 and 3 are the children of the deceased and they were aged 34 years and 32 years respectively at the time of death of their father. In such circumstances, whether they were actually dependent on their father owing to any particular circumstance, was certainly a matter for appellants 2 and 3 to establish. They did not adduce any evidence whatsoever to persuade the Tribunal or us, to treat them as dependents of their father even at that age. Hence, we do not find any reason to hold that the Tribunal had gone wrong in arriving at a conclusion regarding the dependency of the appellants herein, for the purpose of effecting deduction from the income of the deceased towards his personal and living expenses which he would have incurred had he been alive. In short, it is to be held that the Tribunal has rightly held that the 1st appellant alone could be treated as the dependent of the deceased at the time of his accidental death. 7. In short, it is to be held that the Tribunal has rightly held that the 1st appellant alone could be treated as the dependent of the deceased at the time of his accidental death. 7. Then, the question is what should have been the extent of income deductible, rather, to be deducted in terms of the decision in Sarla Verma's case (supra) towards the personal and living expenses of the deceased which he would have incurred had he been alive? 8. For answering the aforesaid question, it is only appropriate to refer to paragraphs 30 to 32 of the decision in Sarla Verma's case (supra). When the number of surviving dependant family is only one, deduction towards personal and living expenses of the deceased has to be 50% of the income. It is stated in paragraph 32 of the said decision thus:- "32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third." Thus the said decision would fortify our view. Therefore, the Tribunal ought to have deducted the 50% of the income, instead of its 1/3rd, for the aforesaid purpose. Our view is further strengthened by the fact that in Sarla Verma's case (supra), 1/3rd deduction of the income is ordered where the number of dependent family members is 2' or 3' and when it is 4' to 6', 1/4th of the income has to be deducted. Going by the decision, if the said number is above six, 1/8th of the income is to be deducted on the aforesaid count. Thus, our finding that 50% of the income has to be deducted when there is only one surviving dependent family members towards personal and living expenses of the deceased would gain support from the decision in Sarla Verma's case (supra). 9. Thus, our finding that 50% of the income has to be deducted when there is only one surviving dependent family members towards personal and living expenses of the deceased would gain support from the decision in Sarla Verma's case (supra). 9. A scanning of paragraph 10 of the impugned judgment would reveal that virtually the Tribunal had fixed Rs.12,000/- as the monthly income for calculation purpose. Taking into account the fact that the 1st appellant was then drawing monthly pension owing to the death of Ramakrishnan and considering the fact that she alone is the surviving dependent of the deceased, we do not find any reason to hold that the Tribunal had committed an error in not taking entire amount of pension which was being drawn by the deceased as the monthly income for calculation purpose. In this case, the deceased was a qualified Engineer, retired from the services of BSNL as Sub Divisional Engineer. The accident had occurred on 24.9.2012. Hence, it is only just and reasonable to take that to live a life with the reputation and dignity of an Engineer, he must have been earning in addition to his monthly pension, utilising his know-how as an Engineer. Though the 1st appellant alone was found as the dependent, the Tribunal deducted only 1/3rd of the income towards the personal and living expenses of the deceased instead of deducting 50% of his income. Even then the Tribunal took the monthly income of the deceased as Rs.8,000/- for calculation purpose. Taking into account all the aforesaid aspects, we do not find any reason to uphold the contention of the appellants that the monthly income of the deceased was fixed meagerly as Rs.8000/- for calculation purpose. The multiplier adopted by the Tribunal was 5. Going by the averments in the claim petition, the deceased was aged 65 years at the time of the accidental death. However, going by Exhibit A7 his age was slightly above 65 years. In view of the schedule given in the decision in Sarala Verma's case (supra], the multiplier applicable to the persons belonging the age group of above 65 years is 5. In such circumstances, it has to be taken that the Tribunal had rightly adopted the multiplier with reference to the age of the deceased at the time of this accidental death. In such circumstances, it has to be taken that the Tribunal had rightly adopted the multiplier with reference to the age of the deceased at the time of this accidental death. Shortly stated, upon considering all such relevant factors, we do not find any reason to interfere with the fixation of compensation for loss of dependency. 10. Now, we will consider whether the appellants are entitled to get enhancement of compensation under other heads. On perusing the schedule of compensation, we find that towards bystander expenses no amount was granted by the Tribunal. Indisputably, Ramakrishnan had succumbed to the injuries sustained in the accident only after undergoing treatment therefor, for 48 days. The expenses incurred by the bystander who stood by his side to give care to him, is certainly to be reimbursed. Considering the price index, cost of living at the relevant point of time, it is only reasonable to grant Rs.200/- per day. In that view of the matter, an amount of Rs.9,600/- has to be reimbursed towards bystander's expenses. Taking into account such factors, reimbursement towards expenses incurred for extra or special diet and nourishment ought to have been granted at the rate of Rs.100/- per day. In such circumstances, the appellants are entitled to get an amount of Rs.800/- in excess of Rs.4000/- granted by the Tribunal under that head. There was no reason to decline the amount claimed towards damage to clothing by the Tribunal. Hence, Rs.500/- more ought to have been granted under that head. Evidently, the accidental death of Sri. Ramakrishnan was not instantaneous. He had to suffer excruciating pain for a period of 48 days before succumbing to the injuries sustained in the accident. Taking into account the said aspects, there was no reason to limit the amount under that head to Rs.10,000/- which is grantable even in cases of instantaneous death in a motor vehicle accident. It was only reasonable to grant Rs.10,000/- more under that head. In the light of the assessment/re-assessment as above under the aforesaid heads a total amount of Rs.25,900/- is payable to the appellants under the aforesaid heads. But, at the same time, it is to be noted that towards loss of love and affection, the Tribunal has granted an amount of Rs.1,50,000/-. In the light of the assessment/re-assessment as above under the aforesaid heads a total amount of Rs.25,900/- is payable to the appellants under the aforesaid heads. But, at the same time, it is to be noted that towards loss of love and affection, the Tribunal has granted an amount of Rs.1,50,000/-. If it is taken that it was granted at the rate of Rs.50,000/- to each of the applicants, then it would amount to duplication in the case of the 1st appellant as she was granted compensation for loss of consortium taking into account the said ingredients viz. 'love and affection' as well. Going by the schedule an amount of Rs.75,000/- was granted under the combined head of loss of consortium and funeral expenses. Since the 1st appellant alone was entitled to get compensation for loss of consortium, it is to be taken that the portion of the amount granted under the said head, is granted to the 1st appellant alone. As the date of the accident is 29.09.2012, the 1st appellant is entitled to the benefits flowing from the decision of the Hon'ble Apex Court in Rajesh v. Rajbir Singh (2013 (3) KLT 89 (SC). Going by the said decision, in a claim for compensation for death filed under Section 166 of the Motor Vehicles Act, a minimum amount of Rs.25,000/- shall be payable under the head 'funeral expenses' and Rs.1,00,000/- shall be the minimum amount of compensation under the head 'loss of consortium'. Therefore, it has to be taken that she was granted only Rs.50,000/- towards loss of consortium and the balance Rs.25,000/- was granted towards 'funeral expenses'. Taking into account the fact that she was also granted Rs.50,000/- under the head compensation for loss of love and affection, the said amount has to be adjusted against the balance amount of Rs.50,000/- grantable towards loss of consortium. Such a calculation and adjustment would mitigate her grievance and therefore, she cannot contend that she was deprived of the benefits flowing from the decision in Rajesh's case (supra) in the matter of granting of compensation towards loss of consortium. Such a calculation and adjustment would mitigate her grievance and therefore, she cannot contend that she was deprived of the benefits flowing from the decision in Rajesh's case (supra) in the matter of granting of compensation towards loss of consortium. It is to be noted that love and affection are also two among the ingredients constituting consortium and therefore, in addition to the grant of compensation for loss of consortium any further amount under the head loss of love and affection is not grantable to the surviving spouse in a claim petition filed for compensation under Section 166 of the Motor Vehicles Act, 1988. (See the decision in United India Insurance Company v. Beena Pathrose [ 2017 (2) KHC 577 (DB)]. In the case of the appellants 2 and 3 they were granted an amount of Rs.50,000/- each towards loss of love and affection. The 2nd and 3rd appellants were aged 34 years and 32 years at the time of the accidental death of their father. Hence the compensation granted as above, towards loss of love and affection to them cannot be said to be inadequate or not reasonable. In the contextual situation, it is pertinent to note that in Rajesh's case (supra) only a total amount of Rs.1,00,000/- was granted to two surviving minor children. In such circumstances, it will not be inappropriate to take that there is some excess payment to the appellants under that head. As noticed herein before, under the combined head of loss of consortium and funeral expenses, the Tribunal has granted an amount of Rs.75000/-. We may hasten to add that the tendency to lump compensation under such heads under a combined head 'loss of consortium and funeral expenses' is improper. To know the impropriety it is only worthwhile to look into the distinction between 'pecuniary damages' and 'non-pecuniary damages'. Damages which are awarded in the form of compensation to a claimant can be classified mainly into pecuniary damages, also known as 'special damages' and 'non-pecuniary damages', which are classified as 'general damages'. Pecuniary damages are generally decided to make good the pecuniary loss which is capable of being calculated in terms of money and 'non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages are generally decided to make good the pecuniary loss which is capable of being calculated in terms of money and 'non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Thus, it need no explanation to know that 'loss of consortium' falls under the classification non-pecuniary damages and expenses incurred by the claimant for conducting funeral falls under pecuniary damages. It is always appropriate to consider the pecuniary and non-pecuniary damages separately having regard to the various sub-heads on the basis of the evidence adduced by the parties. However, in view of the observation herein before made, no interference is called for, in this case, on the said count. Since going by our assessment and re-assessment, only a total amount of Rs.25,900/- is payable to the appellants under the different heads specifically mentioned hereinbefore and the appellant is already in receipt of amounts in excess, we wean that this is not a case befitting invocation of appellate power to grant further enhancement. Hence, no interference is called for at the instance of the appellants. The long and short of the discussion is that there is absolutely no merit in this appeal and is liable to fail. Accordingly, this appeal is dismissed.