High Court of KeralaDivision BenchAppeal partly allowed.

Biraj Mallick and others v. Sasi and T.P. Vijayan and The New India Assurance Co. Ltd.

Case / Petition Number:MACA 7 of 2011

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • R. Basant
  • K. Surendra Mohan
Judgment Date
2011-11-02
Court Decision / Holding
This appeal is allowed in part. The appellants are found entitled to a further amount of Rs.1,71,000/- as compensation in addition to the amount awarded by the Tribunal. The total compensation shall carry interest at the rate and for the period directed by the Tribunal. Proportionate costs shall be computed on the entire amount of compensation hereby awarded as indicated in Jeena v. Satheesh Babu. All other directions of the Tribunal are upheld.
Final Disposition
Appeal partly allowed.

Parties to the Case

Appellants / Petitioners

  • BIRAJ MALLICK, G.T. ROAD, KHADAKER PARA, P.O. SHEORAPHULLY, HOOGHLY DT., WEST BENGAL.
  • JNATUNE BIBI, W/O. BIRAJ MALICK, - G.T. ROAD, KHADAKER PARA, - P.O. SHEROPULLY.
  • NAJEEMA BEGUM, W/O. SUKUR ALI MALLICK - (LATE), G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY.
  • AFASSAR MALLICK (MINOR), - REP. BY BIRAJ MALLICK, - G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY.
  • REXONA KHATUN (MINOR), - REP. BY BIRAJ MALLICK, - G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY.

Respondents

  • SASI, S/O. GOPALAN, KAINATTIL HOUSE, VENGANDURE, CHELAKKARA, THRISSUR-680 512
  • T.P. VIJAYAN, PULACHERY HOUSE, VENGADUR, CHELAKKARA, THRISSUR - 680 512
  • THE NEW INDIA ASSURANCE CO. LTD., - 2ND FLOOR, J R J COMPLEX, OTTAPALAM, PIN - 681 510.

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI. SHEJI P.ABRAHAM

Counsels for Respondents

  • • SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3

Case Synopsis & Summary

Biraj Mallick and other family members filed MACA 7 of 2011 challenging the Motor Accidents Claims Tribunal, Thrissur award in OPMV.2955/2003. The deceased, a 27-year-old West Bengal native employed as a gold worker who had come to Kerala, died in the accident on 1 June 2003. The Tribunal awarded Rs. 3,42,500 as compensation against a claim of Rs. 10 lakh. The appellants contended that the monthly income used for loss of dependency (Rs. 2,000) was unrealistically low and contrary to the principle of prudence in clause 6 of the MV Act's Second Schedule and relevant precedents, including Lakshmi Devi v. Mohammed Tabbar and Latha Wadhwa v. State of Bihar, which permit assuming a higher income (Rs. 3,000 per month) for non-earning homemakers or unskilled workers. They argued for Rs. 3,250 monthly income and a 1/3 deduction for personal expenses, applying the 17-year multiplier laid down in Sarla Varma v. Delhi Transport Corporation. The High Court found merit in the approach and held that Rs. 3,250 could reasonably be treated as the deceased’s monthly income, and that the multiplier of 17 was appropriate. It directed an additional Rs. 171,000 as compensation, in addition to the Tribunal’s award, and directed that interest and costs follow the Tribunal’s directions; the other Tribunal directions were upheld. The appeal was thus allowed in part.

Provisions of Law Cited

Motor Vehicles Act, 1988 – Second Schedule, Clause 6

Legal Doctrines & Maxims

  • Presumption of prudence under clause 6 of the MV Act Second Schedule
  • Multiplier principle for computation of loss of dependency as per Sarla Varma v. Delhi Transport Corporation

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the Tribunal wrongly fixed the monthly income at Rs.2,000 for loss of dependency, ignoring the presumption of prudence under Clause 6 of the MV Act’s Second Schedule and established precedents (Lakshmi Devi v. Mohammed Tabbar; Latha Wadhwa v. State of Bihar) permitting a higher earning assumption for dependent families. They urged adopting a monthly income of Rs.3,250, applying a 1/3 deduction for personal expenses, and using the 17-year multiplier from Sarla Varma. While conceding other heads, they sought enhancement of the dependency component by Rs.1,71,000 in addition to the Tribunal’s amount, arguing that the award should reflect a realistic income for the deceased’s dependents.

Contentions of Respondents

The respondents, including the insurer, supported maintaining the Tribunal’s framework except to the extent of contesting the exact quantum for other heads; they argued for stability of the Tribunal’s award and opposed drastic increases, urging that the evidence before the Tribunal did not justify a higher dependency figure beyond what was deemed reasonable by the Tribunal.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Lakshmi Devi v. Mohammed Tabbar2008 ACJ 1488PositiveUsed to support the presumption that even non-earning homemakers or unskilled workers may be treated as earning Rs. 3,000 monthly.
Latha Wadhwa v. State of BiharAIR 2001 SC 3218PositiveCited to justify presumption of prudence in income for dependents.
Sarla Varma v. Delhi Transport Corporation2009 6 SCC 121PositiveAdopted multiplier of 17 for loss of dependency per the ruling.
Jeena v. Satheesh Babu2011(3) KLT 943PositiveCited for cost directive that costs be computed on the entire amount of compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MACA.No. 7 of 2011() -------------------OPMV.2955/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... ## APPELLANT(S): PETITIONERS ------------------------- 1. BIRAJ MALLICK, G.T. ROAD, KHADAKER PARA, P.O. SHEORAPHULLY, HOOGLY DT., WEST BENGAL. 2. JNATUNE BIBI, W/O. BIRAJ MALICK, - G.T. ROAD, KHADAKER PARA, - P.O. SHEROPULLY. 3. NAJEEMA BEGUM, W/O. SUKUR ALI MALLICK - (LATE), G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY. 4. AFASSAR MALLICK (MINOR), - REP. BY BIRAJ MALLICK, - G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY. 5. REXONA KHATUN (MINOR), - REP. BY BIRAJ MALLICK, - G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S): - --------------- 1. SASI, S/O. GOPALAN, KAINATTIL HOUSE, VENGANDURE, CHELAKKARA, THRISSUR-680 512. 2. T.P. VIJAYAN, PULACHERY HOUSE, VENGADUR, CHELAKKARA, THRISSUR - 680 512. 3. THE NEW INDIA ASSURANCE CO. LTD., - 2ND FLOOR, J R J COMPLEX, OTTAPALAM, - P NO. 761103/31/02/09441, PIN - 681 510. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------M.A.C.A.NO: 7 OF 2011 & C.M.Appln. 11 of 2011** **----------------------------------------------------------Dated this the 2[nd ] November, 2011.** ## **JUDGMENT** ## Basant, J. ## **C.M.Appln.11 of 2011** This petition is to condone the delay of 96 days in filing the M.A.C.A. We have heard learned counsel for the appellant and the learned counsel for the Insurance Company which has been made liable under the impugned award to satisfy the same. We take a lenient view. Petition allowed. Delay condoned. ## **M.A.C.A. 7 of 2011** Claimants are the appellants. They are the parents, two siblings and the wife of a deceased person aged about 27 years. He was allegedly employed as a gold worker. He belongs to West Bengal and had come to Kerala in connection with his work. He was employed under an employer for the past about seven years it is revealed. The accident took place on 1-6-2003. He succumbed to the injuries on the same day. Against a total claim of Rs.10 lakhs the Tribunal awarded a total amount of MACA 7/2011 2 Rs.3,42,500/- as compensation as per the details given in paragraph 10 of the impugned award which we extract below:- |Expense for transportation|10000| |---|---| |Expense for funeral|5000| |Compensation for pain and|| |suffering|15000| |Compensation for loss of|| |dependency|272000(2000x12x2/3x17)| |Damages to clothing and|| |articles|500| |Compensation for loss of|| |estate|10000| |Compensation for loss of|| |love and affection|15000| |Compensation for loss of|| |consortium|15000| ||-----------------------| |Total|342500| ||==========| 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company who has been made entirely liable under the impugned award. Challenge is raised only against the quantum of compensation awarded. Called upon to explain and be specific the learned counsel for MACA 7/2011 3 the appellant challenges the quantum of compensation awarded under the head of loss of dependency. Only an amount of Rs.2,000/- was reckoned by the Tribunal as the monthly income. This is grossly insufficient, contends the learned counsel. The learned counsel brings to our notice that the accident has taken place on 1-6-2003. He relies on the presumption of prudence in clause 6 of the second schedule to the M.V. Act which has remained in force from 1994. The learned counsel for the appellants further relies on the precedents in **Lakshmi Devi v. Mohammed Tabbar** (2008 ACJ 1488) and **Latha Wadhwa v. State of Bihar** (AIR 2001 SC 3218) under which the Tribunals are enabled to draw the presumption of prudence that even a non-earning home maker as also an unskilled manual worker can be assumed to earn an income of Rs.3,000/- per mensem. In the facts and circumstances of this case we are satisfied that Rs.3,250/- can be reckoned as the monthly income of the deceased. Deduction has been made of 1/3[rd] towards the personal expenses of the deceased. We are in agreement with the Tribunal on this aspect. Only his wife can be said to be wholly dependent on the deceased. Though his parents and siblings are arrayed as claimants it cannot be assumed that MACA 7/2011 4 parents aged 55 years and 45 years or siblings were wholly dependent on the deceased. 3. 17 has been accepted as the multiplier by the Tribunal going by the dictum in **Sarla Varma v. Delhi Transport Corporation** (2009) 6 SCC 121 the adoption of the multiplier at 17 cannot also be faulted. 4. We are not persuaded to agree with the amount of compensation awarded under any other head deserves or warrants appellate interference. 5. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs.171000/- as compensation as per the details shown below in addition to the amount awarded by the Tribunal. Loss of dependency (3250x12x2/3x17) Rs.442000 minus 271000 = 171000 6. In the result; a) This appeal is allowed in part. b) The appellants are found entitled to a further amount of Rs.1,71,000/- (Rupees one lakh seventy one thousand only) as compensation in addition to the amount awarded by the MACA 7/2011 5 Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period directed by the Tribunal under the impugned award. d) We direct that proportionate costs as directed by the Tribunal shall be computed on the entire amount of compensation hereby awarded as indicated in **Jeena v. Satheesh Babu** (2011(3) KLT 943). e) All other directions of the Tribunal are upheld. Sd/- R. BASANT Judge Sd/K. SURENDRA MOHAN Judge jj P.S.to Judge MACA 7/2011 6