Assainar S/o Abdul Kader & Zuhara v. National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** **MACA.No. 259 of 2015 () -----------------------AGAINST THE AWARD IN OP(MV) NO.1709/2003 OF THE PRL.M.A.C.T., KOZHIKODE DATED 19-07-2007** ## **APPELLANT(S)/PETITIONERS:** **-------------------------** **1.ASSAINAR S/O.ABDUL KADER, KALLUMMEL HOUSE, PILAKODU P.O.VALIYAKADAPPURAM, VENGARA (VIA), KANNUR DISTRICT.** **2.ZUHARA, W/O ASSAINAR, KALLUMMEL HOUSE, PILAKODE, P.O.VALIYAKADAPPURAM, VENGARA (VIA), KANNUR DISTRICT.** **BY ADV. SMT.K.V.RESHMI** **RESPONDENT(S)/2ND RESPONDENT:** **-----------------------------** **NATIONAL INSURANCE COMPANY LTD., RASIK CHAMBERS, OPP. CENTRAL MARKET, MANGALORE KARNATAKA STATE.** **BY ADV. SRI.PMM.NAJEEB KHAN BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------- M.A.C.A. No. 259 of 2015 -------------------------------------------------Dated this the 19[th] day of February, 2016 ## **J U D G M E N T** ## Anil K. Narendran, J. The appeal is for enhancement of the compensation awarded by the Principal Motor Accidents Claims Tribunal, Kozhikode in OP(MV) No.1709/2003 in respect of the death of the son of the appellants, pursuant to a road traffic accident occurred on 23.05.2003. 2. The factual position revealed from the proceedings is that while the deceased was travelling as passenger in a car, bearing Reg. No.KL-13/G-3617, from Kannur to Karippor, a lorry, bearing Reg.No.KA-20/A-6399, owned and insured by respondents 1 and 2 before the Tribunal, hit against the car, causing serious injuries to him leading to his death. This led to the claim petition filed by the legal heirs of the deceased before the Tribunal, seeking compensation. 3. The matter was contested by the respondent insurer. The nature of contention raised by the respondent M.A.C.A. No. 259 of 2015 **==> picture [20 x 8] intentionally omitted <==** insurance company was mainly on quantum/negligence. 4. The evidence adduced before the Tribunal consists of Exts.A1 to A4. No oral or documentary evidence was adduced before the Tribunal from the part of the respondents. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the driver of the lorry and proceeded to fix the compensation accordingly. 6. At the time of the accident, the deceased was an 18 years old student, doing 1[st] year graduation. Referring to the serious consequences resulted because of the death, a total sum of 4,00,000/- was claimed as compensation. But, the₹ deceased being a student, the Tribunal fixed his notional annual income at ₹15,000/for working out loss of dependency. Awarding amounts under different heads, total compensation was fixed as 1,73,000/-, which was directed to₹ be satisfied with interest @ 6% per annum from the date of the petition till satisfaction. The liability, accordingly, was mulcted upon the shoulders of the respondent insurance company. Inadequacy of the compensation awarded by the Tribunal under different heads is the subject matter of M.A.C.A. No. 259 of 2015 ..3.. challenge in this appeal. 7. Heard the learned counsel for the appellants and the learned counsel for the respondent insurance company. 8. The amounts awarded by the Tribunal under different heads are as follows; Dependency ₹1,50,000/Funeral expenses ₹2,000/Transportation ₹1,000Pain and suffering ₹5,000/Loss of love & affection ₹10,000/Loss of expectation in ₹5,000/life ----------------- Total ₹1,73,000/======= 9. Coming to the quantum of compensation payable, the case projected by the claimants before the Tribunal was that at the time of the accident, the deceased was aged 18 years. They contended that the deceased was a student, doing 1[st] year graduation. The Tribunal reckoned a notional annual income of 15,000/- for calculating dependency compensation.₹ Considering the fact that the accident occurred in the year 2003 and at the time of the accident, the deceased was an able bodied person, aged 18 years, we deem it appropriate to reckon a notional monthly income of 3,000/- for the purpose₹ of calculating dependency compensation. Since the deceased M.A.C.A. No. 259 of 2015 **==> picture [20 x 8] intentionally omitted <==** was a bachelor, only 50% of the notional income alone can be reckoned for calculating dependency compensation, deducting the balance 50% towards his personal and living expenses. 10. We also notice that while calculating dependency compensation, the Tribunal adopted the multiplier of '15', taking into account the age of the appellants. It is settled law that the multiplier has to be fixed based on the age of the deceased and not based on the age of the parents/claimants. This being the position, since the deceased was aged 18 years, the proper multiplier to be adopted is '18'. In such circumstances, dependency compensation is refixed as ₹3,24,000/- (3000 x 12 x 18 x 50/100). The Tribunal awarded only a sum of 1,50,000/- under this head. Therefore, the₹ appellants will be entitled to get an additional sum of **₹ 1,74,000/-** towards dependency compensation. 11. Towards funeral expenses, the Tribunal awarded only a meagre sum of 2,000/-. In ₹ **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 SC], the apex court awarded a sum of ₹25,000/- towards funeral expenses. In that case, the accident was of the year 2007. However, in the instant case, the accident occurred in the year 2003. in such circumstances, M.A.C.A. No. 259 of 2015 **==> picture [20 x 8] intentionally omitted <==** we deem it appropriate to refix compensation under this head as 7,500/-. Thus, the appellants will be entitled for an₹ additional compensation of **₹4,500/-** towards funeral expenses. 12. Towards pain and suffering, the Tribunal awarded a sum of 5,000/-. We deem it appropriate to award an₹ additional sum of **₹ 5,000/-** under this head. 13. Towards loss of love and affection, the Tribunal awarded only a sum of 10,000/-. In ₹ **Rajesh** 's case (cited supra), the Apex Court held that amounts payable under the head, loss of love and affection, is to be at the rate of ₹1,00,000/-. But, the accident in the said case was in the year 2007. The matter was considered by a Division Bench of this Court with reference to the aforesaid judgment as laid down in **Valsamma** v. **Biju Jose** [2014 (1) KLT 10] and held that the amount payable under the above head is to be with reference to the age of the deceased and the claimants. In the instant case, the deceased was aged 18 years and the appellants were aged 50 and 45 years respectively and the accident occurred in the year 2003. Considering the facts and circumstances of the case, we deem it appropriate to refix the compensation M.A.C.A. No. 259 of 2015 **==> picture [20 x 8] intentionally omitted <==** under the head, loss of love and affection, as 50,000/-. Thus,₹ the appellants will be entitled to get an additional compensation of **₹ 40,000/-** towards loss of love and affection. 14. The Tribunal awarded a sum of 5,000/- towards₹ loss of expectation in life and nothing has been awarded by the Tribunal towards loss of estate. Since the victim succumbed to the injuries, the compensation awarded by the Tribunal towards loss of expectation in life is treated as compensation under the head, 'loss of estate', and a further sum of **₹ 5,000/-** is awarded under this head. 15. The compensation awarded by the Tribunal under other heads appear to be just and reasonable and no enhancement is required in the appeal. 16. In the result, the appellants are entitled to get an additional compensation of **₹ 2,28,500/-** (Rupees two lakhs twenty eight thousand and five hundred only), which shall be satisfied with interest @ 9% per annum from the date of the petition till satisfaction. 17. The appeal was filed with a delay of 2516 days, which was condoned as per order in C.M.Appl. No.282/2015 dated 10.02.2016 subject to the condition that, if, at all, any M.A.C.A. No. 259 of 2015 **==> picture [20 x 8] intentionally omitted <==** enhancement is ordered, the appellants will not be entitled to get interest for the period of delay. Therefore, the respondent insurer shall deposit the additional compensation awarded in this appeal together with interest @ 9% per annum from the date of petition, except for the aforesaid period of delay of 2516 days in filing this appeal, within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge