A.A. THANKA and others v Ravidas N.M. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939 MACA.No. 2532 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 2345/2005 of MACT,THRISSUR DATED 26-06-2012 ## APPELLANT(S)/PETITIONERS: ----------------------- 1. A.A.THANKA, M/O. LATE KISHORE, RESIDING AT ARIMPURATH HOUSE, P.O. KANNARA, THRISSUR DISTRICT. 2. P.U.KIRAN,BROTHER OF LATE KISHORE, RESIDING AT PAMBOOR HOUSE, ALAPPAD P.O., PURATHUR, THRISSUR DIST. 3. P.U.KEERTHY,SISTER OF LATE KISHORE, RESIDING AT PAMBOOR HOUSE, ALAPPAD P.O., PURATHUR, THRISSUR DIST. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. RAVIDAS N.M. - S/O MOHANDAS, RESIDING AT NEDUMTHEDATH HOUSE, P.O. ALAPPAD, THRISSUR-680 641. 2. THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, PALACE ROAD, THRISSUR-680 001. 3. MAJEESH MOHAN, S/O MOHAN, RESIDING AT VADAKKUMPARAMBIL HOUSE, ALAPPAD P.O., THRISSUR-680 641. 4. THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, PALACE ROAD, THRISSUR:680 001. 5. P.P.UNNI RAJ,RESIDING AT PAMBOOR HOUSE, HOUSE NO.5/71, P.O. ALAPPAD, THRISSUR-680 641. R2,4 BY ADV. SRI ZIYAD REHMAN(NO MEMO ) R2 & 4 BY ADV. SRI.K.C.SANTHOSHKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.2532 of 2012 ========================== Dated this the 17[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Additional Motor Accidents Claims Tribunal, Thrissur in O.P.(MV)No.2345 of 2005, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Kishore, aged 24 years, son of the first appellant and sibling of appellants 2 and 3, in a motor accident occurred on 28.5.2005 while he was travelling as a pillion rider in a motorcycle bearing Reg.No.KL8/Q-1078. At the place of accident, the said motorcycle was hit by another motorcycle bearing Reg.No.KL-8/U-4744 owned and ridden by the first respondent and insured with the second respondent. As a result of the accident, the deceased who sustained serious injuries had succumbed to the injuries on 1.07.2005, while undergoing treatment at Elite Mission Hospital, Koorkkenchery. Respondents 3 and 4 are the owner and insurer respectively of the motorcycle in which the deceased was travelling as a pillion rider and the fifth respondent is M.A.C.A.No.2532/2012 2 the father of the deceased. Alleging that the accident occurred due to the rash and negligent riding of motorcycle bearing Reg.No.KL-8/U4744 by the first respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.6,30,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellants/claimants. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of motorcycle bearing Reg.No.KL-8/U-4744 by the first respondent owner cum rider. Since the said vehicle was covered by a valid insurance policy, the second respondent insurer was held liable to indemnify the first respondent owner-cum-rider. Under different heads, the Tribunal awarded a total compensation of Rs.4,56,000/- and directed the second respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 8% per annum from the date of the petition till realisation. Out of the said amount, 50% was ordered to be disbursed to the first appellant mother, 30% to the fifth respondent father and the M.A.C.A.No.2532/2012 3 remaining amount to appellants 2 and 3, namely, the siblings of the deceased, in equal proportion. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. 5. We heard the arguments of the learned counsel for the appellants/claimants and also the learned counsel for the second respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2005 and at the time of the accident, the deceased was aged 24 years. The appellants claimed that, at the time of accident, the deceased was earning a monthly income of Rs.5,000/-, as a Singer. However, no reliable materials were produced before the Tribunal to substantiate the said claim. The appellants have also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income of the deceased notionally at Rs.3,000/- for the purpose of assessing compensation under different heads. M.A.C.A.No.2532/2012 4 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , the Apex Court fixed the notional monthly income of a coolie, who met with a motor accident in the year 2004, at Rs.4,500/-. In the instant case, the accident is of the year 2005. Considering the economic conditions prevailing at the time of accident, we deem it appropriate to re-fix the monthly income of the deceased notionally at Rs.5,000/-, for the purpose of assessing compensation under different heads. 9. The materials on record would show that the deceased sustained serious injuries including head injury and he had undergone inpatient treatment for a period of 34 days. 10. The compensation awarded by the Tribunal under different heads reads thus:- |Sl.<br>No.|Head of claim|Amount claimed<br>(in Rupees)|Amount<br>awarded (in<br>Rupees)| |---|---|---|---| |1|Medical expenses|125000|99900| |2|Funeral expenses|15000|5000| |3|Bystander expenses|3000|2100| |4|Transportation expenses|8000|2000| |5|Extra Nourishment|3000|| |6|Damages to clothing|1000|| |7|Pain and suffering|25000|15000| |8|Loss of dependency|400000|312000| M.A.C.A.No.2532/2012 5 |Sl.<br>No.|Head of claim|Amount claimed<br>(in Rupees)|Amount<br>awarded (in<br>Rupees)| |---|---|---|---| |9|Loss of love and affection|50000|15000| |10|Loss of estate||5000| ||Total (limited/rounded to)|630000|456000| 11. Under the head loss of dependency, the Tribunal awarded a sum of Rs.3,12,000/- taking the notional monthly income as Rs.3,000/-, applying the multiplier of '13' applicable to the age group of the first appellant mother and deducting 1/3 towards personal and living expenses of the deceased. In **Amit Bhanu Shali v. National** **Insurance Co. Ltd. [(2012) 11 SCC 738]** the Apex Court reiterated that while assessing compensation for loss of dependency, the selection of multiplier should be based on the age of the deceased and not on the basis of the age of the dependent. Since the deceased was aged 24 years at the time of the accident, going by the decision of the Apex Court in **Sarla Verma v. Delhi Road Transport Corporation [2010 (2) KLT 802 (SC)]** , the proper multiplier applicable is '18'. 12. Since the deceased was a bachelor, going by the decision of the Apex Court in **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** , 50% of the monthly income has to be deducted towards the M.A.C.A.No.2532/2012 6 personal and living expenses of the deceased and remaining 50% alone can be taken for the purpose of assessing compensation under the head loss of dependency. 13. In **Rajesh's case (supra)** the Apex Court held that in the case of self-employed persons or persons with fixed wages, if the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased, towards future prospects. In the instant case, the deceased was aged only 24 years at the time of accident. The fact that he was a singer at the time of accident is not seriously disputed, inasmuch as, the written statement filed by the second respondent insurer contained only a vague and evasive denial of the said fact. At the same time, it has to be borne in mind that, being a singer, the income earned by the deceased is dependent upon various factors like performance, opportunities, etc. Considering the facts and circumstances of the case, we are of the view that 30% of the notional income of the deceased can be added towards future prospects. Therefore, 6,500 (5,000+1,500) can be taken as the multiplicand, for the purpose of assessing compensation under the head loss of dependency. Applying the multiplier of '18' applicable to the age group of the deceased and deducting 50% towards the 7 M.A.C.A.No.2532/2012 personal and living expenses of the deceased, dependency compensation is re-worked as Rs.7,02,000/- (6,500x12x18x½). The Tribunal has awarded a sum of Rs.3,12,000/- under the head loss of dependency. In the result, the appellant will be entitled for an additional compensation of **Rs.3,90,000/-** under this head. 14. Towards funeral expenses, the Tribunal awarded a sum of Rs.5,000/-. In **Rajesh** ' **s case (supra)** , the Apex Court awarded a sum of Rs.25,000/- as compensation under the said head. In that case, the accident was of the year 2007. In the instant case, the accident is of the year 2005. In such circumstances, we deem it appropriate to re-fix the compensation under this head as Rs.15,000/-, resulting an additional compensation of **Rs.10,000/-** . 15. Towards bystander's expenses, the Tribunal awarded a sum of Rs.2,100/- and no amount was awarded under the head extra nourishment. Since the deceased had undergone inpatient treatment for a period of 34 days, the appellants are entitled for bystander's expenses at the rate of Rs.150 per day and that under the head extra nourishment at the rate of Rs.100/- per day. In such circumstances, the compensation under the head bystander's expenses is re-worked as Rs.5,100/- (34x150), resulting an additional compensation of M.A.C.A.No.2532/2012 8 **Rs.3,000/-** and the appellants are also entitled for an amount of **Rs.3,400/-** (34x100) towards extra nourishment. 16. Towards damage to clothing, no amount was awarded by the Tribunal. Considering the fact that the accident is of the year 2005, we deem it appropriate to grant a sum of **Rs.750/-** under this head. 17. Towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. In the accident, the deceased sustained serious injuries, including head injury. Considering the fact that the deceased succumbed to the injuries after undergoing inpatient treatment for a period of 34 days, we deem it appropriate to re-fix the compensation under this head as Rs.20,000/-, resulting an additional sum of **Rs.5,000/-** under this head. 18. Towards compensation for loss of love and affection, the Tribunal awarded a sum of Rs.15,000/-. In **Rajesh's case (supra)** , the Apex Court granted a sum of Rs.1,00,000/- under this head. In the said case, the accident was of the year 2007 and the deceased was survived by three minor children. In the instant case, the accident is if the year 2005 and the deceased was survived by his mother aged 46 years, siblings aged 26 and 22 years respectively 9 M.A.C.A.No.2532/2012 and his aged father, who is arrayed as the fifth respondent. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.75,000/-, resulting an additional compensation of **Rs.60,000/-** . 19. The Tribunal awarded a sum of Rs.5,000/- as compensation under the head loss of estate. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** . 20. In the result, the appellants/claimants are entitled for an additional compensation of **Rs.4,77,150/-** (3,90,000 + 10,000 + 3,000 + 3,400 + 750 + 5,000 + 60,000 + 5,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation. Out of the said amount, the fifth respondent father will be entitled for a sum of Rs.10,000/- under the head loss of love and affection and the remaining amount shall be apportioned between the appellants, namely, the mother and siblings of the deceased in the ratio 50:25:25. 21. Since the insurance coverage of the offending vehicle is not in dispute, the second respondent insurer shall deposit the said M.A.C.A.No.2532/2012 10 amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/**