Ramachandran Nair, J. This appeal has been filed by the insurance company, aggrieved by the award of compensation. We heard Shri A.A. Mohammed Nazir, learned counsel for the appellant and Shri C.A. Chacko, learned counsel for the respondents.
2. The learned counsel for the appellant has mainly raised three contentions: Firstly, it is submitted that as far as the calculation of loss of dependency is concerned, since the daughters of the deceased have been married away, the deduction of one third alone for personal expenses of the deceased is not justified. Secondly, it is submitted that towards loss of consortium, Rs.1 Lakh has been awarded, which, going by the age of the deceased herein, is on a higher side. Lastly, it is submitted that the deceased had also contributed to the accident which is clear from Ext.A3 scene mahazar.
3. First we will consider the argument regarding contributory negligence and we may observe that the insurance company has not adduced any evidence in support of the present plea for contributory negligence. The vehement argument raised by the learned counsel for the appellant is based on the reference in paragraph 16 of the judgment about the total width of the tarred portion of the road and the description of the spot of accident. What we find from Ext.A3 is that the total width of the tarred portion of the road is 14.88 metres and the spot of accident is 3.10 metres north from the southern tar end. The vehicle was going from east to west. The Tribunal found in paragraph 17 of the judgment that the motor cycle hit the deceased from behind. Learned counsel for the respondents submitted that going by the First Information Statement given, it is clear that the deceased was hit behind by the motor cycle.
4. According to the learned counsel for the appellant, it can be seen that the vehicle was on the correct side and therefore negligence can only be attributed to the deceased in crossing the road. We find from the observations made by the Tribunal that the road is seen lying as a straight one, without any curves or bends and without any structures blocking the visibility of the drivers in any manner. The accident occurred at 8.30 a.m. in the morning on 6.9.2006. Therefore, it can be easily seen that there was clear visibility in the road. Apart from the same, the deceased was hit from behind, going by Ext.A1. As far as the aspect of contributory negligence is concerned, there is no other independent evidence and nothing was attempted by the insurance company to substantiate their contention. In that view of the matter, we are rejecting the said contention. Apart from that, the Police charge, Ext.A5 is also against the driver of the offending vehicle which amounts to a prima facie evidence of negligence.
5. As regards the quantum, it is seen that the deceased was claimed to be a driver aged 58 years at the time of accident. As against the claim of Rs.5,000/- as the monthly income of the deceased, the Tribunal has taken it only at Rs.3,500/-. Since the daughters have been married away, only 50% could have been taken for fixing the contribution to the wife. But we notice that towards loss of estate, only a sum of Rs.2,500/- is granted. For loss of love and affection, only a sum of Rs.50,000/- has been awarded, whereas going by the decisions of the Apex Court, Rs.1 Lakh can be granted on a minimum. On the ground that the deceased died on the same day, only Rs.5,000/- has been granted towards pain and suffering also.
6. Shri Chacko, learned counsel for the respondents argued for sustaining the award, by stating that only a sum of Rs.4,35,964/- has been granted as total compensation and it is a just and fair compensation and that this Court may have to consider all aspects together.
7. We have gone through the pleadings and evidence. For easy reference, we extract hereinbelow the schedule given in paragraph 29 of the judgment whereby compensation has been granted by the Tribunal:
Rs. 25,000/- has been granted as funeral expenses. But compensation for loss of dependency, Rs.2,51,964/- has been calculated. Rs.2,500/- has been assessed towards loss of estate and normally, an amount of Rs.20,000/- could have been granted on that count. We are of the considered view that the award of Rs.1 Lakh towards loss of consortium is not on a higher side.
The law laid down by the Apex Curt in this respect shows that a minimum of Rs.1 Lakh can be taken in such cases for granting compensation under the head “loss of consortium”. (See Rajesh v. Rajbir Singh - 2013 (3) KLT 89 - SC) Even though it is submitted by the learned counsel for the appellant that the deceased was aged 58 years and his spouse was aged 54, we do not find any reason to reduce the said amount. Towards loss of love and affection, only a sum of Rs.50,000/- has been granted and going by the settled legal position, Rs.1 Lakh could have been granted.
In the light of the above, even though 1/3rd has been deducted towards personal expenses of the deceased, on other counts, the amounts granted are only marginal and the total compensation granted is only Rs.4,35,964/-. It is only a just and fair compensation, for the death of the breadwinner of the family. We find no reason to interfere with the award under challenge and accordingly the appeal is dismissed. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) (P.V.ASHA, JUDGE) kav/