Chellappan and others v. Biju Varghese and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937 MACA.No. 1958 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 60/2005 of MACT, NORTH PARAVUR DATED 11-03-2013 APPELLANT(S)/PETITIONERS: --------------------------------- 1. CHELLAPPAN, AGED 70 YEARS (FATHER OF DECEASED HARIKRISHNAN), S/O.KEERAN KONDOTHARA HOUSE, EDAVANAKKADU-682 502. 2. SUJATHA BAI, AGED 59 YEARS W/O.CHELLAPPAN, KONDOTHARA HOUSE EDAVANAKKADU-682 502. 3. UNNIKRISHNAN, AGED 32 YEARS S/O.CHELLAPPAN, KONDOTHARA HOUSE EDAVANAKKADU-682 502. BY ADV. SMT.GISA SUSAN THOMAS ## RESPONDENT(S)/RESPONDENTS: ---------------------------------- * 1. BIJU VARGHESE 41/1689, 41 DIVISION KOCHI CORPORATION, NOW RESIDING AT 44/1689 KALAVATH ROAD, KARANAKKODOM PALARIVATTOM-682 025. [DELETED] 2. DIVISIONAL OFFICER THE ORIENTAL INSURANCE CO.LTD., JEWEL ARCADE LAYAM ROAD, COCHIN-682 011. 3. K.E.CHANDRAN, AGED 64 YEARS KALATHIN HOUSE, EDAVANAKKADU.P.O., PIN-682 502 ERNAKULAM DISTRICT (LEGAL HEIR OF DRIVER HAREESH CHANDRAN (DECEASED) 4. BABY GIRIJA, AGED 60 YEARS W/O.CHANDRAN, KALATHIN HOUSE, EDAVANAKKADU.P.O. PIN-682 502, ERNAKULAM DISTRICT (LEGAL HEIR OF DRIVER HAREESH CHANDRAN (DECEASED). *ADDL.5. P.C.AGARWAL 105, AISWARYA BUILDING, VALANJAMBALAM ERNAKULAM-682 016. [DELETED] *(RESPONDENTS 1 AND 5 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 07.11.2014 IN IA 3318/14 IN MACA 1958/13) R3 &4 BY ADV. SRI.M.T.BALAN R3 &4 BY ADV. SMT.B.VIJUBALA R2 BY ADV. SRI.GEORGE CHERIAN (SR.) R2 BY ADV. SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** **========================== M.A.C.A. No.1958 OF 2013 ==========================** Dated this the 10[th] day of February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The legal heirs of one Hari krishnan who died at the age of 20 years in a motor vehicle accident, are the appellants. They were the claimants in O.P.(MV).No.60 of 2005 on the files of the Motor Accidents Claims Tribunal, North Paravur. Admittedly, he was a bachelor and in the claim petition, it is contended that he was a Turner by profession and was getting `5500/- as monthly income excluding the incentives. Admittedly, the death was instantaneous. The appellants who are the parents and elder brother of the deceased approached the Tribunal claiming `18 lakhs as compensation. The Tribunal, as per the impugned award, granted `4,59,000/- as **M.A.C.A.1958/2013** 2 compensation. It is in the said circumstances that the captioned appeal has been preferred contending that the Tribunal has not granted just compensation and seeking enhancement of the amount of compensation. 2.Pending the appeal, the first appellant, the father of deceased Hari krishnan died. His legal heirs viz., his widow and the elder son are already on the array as respondents 2 and 3. 3.We have heard Adv.Smt.Gisa Susan Thomas, the learned counsel for the appellants, Adv.Sri.George Cherian, the counsel for the second respondent and also Adv.Sri.M.T. Balan, appearing for respondents 2 and 3. 4.Evidently, the main challenge of the appellants is with respect to the fixation of the 'multiplicand' as also the 'multiplier' by the Tribunal for arriving at the compensation payable under the head loss **M.A.C.A.1958/2013** 3 of dependency. The learned counsel for the appellants contended that the Tribunal fixed the multiplier with reference to the average age of the dependents. It is submitted that in the light of the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation** reported in **2010 (2) KLT 802 (SC)** which was affirmed by the Apex Court in **Munna Lal Jain v. Vipin Kumar Sharma** reported in **(2015) 6 SCC 347,** fixation of the multiplier for deciding the compensation for loss of dependency has to be with reference to the age of the deceased only. This position has not been disputed by the respondents. At the time of the accident, the deceased was aged 20 years. In the light of the decision in **Sarla Verma** 's case, '18' has to be the multiplier in the case of persons belonging to the age group 15 to 20. Coming to the question whether the Tribunal has correctly fixed the multiplicand certain aspects have to be looked into. The contention of the appellants is that they have specifically pleaded in the claim petition that the deceased was a Turner by profession and he was earning a monthly income of `5500/- excluding the incentives. **M.A.C.A.1958/2013** 4 They have produced Exts.A9 and A10 in support of the said claim. Ext.A10 is the Trade Certificate issued from ITI, Kalamassery and Ext.A9 is a certificate issued from Holidays FM, Panampilly Nagar which is a private company. In the contextual situation it is relevant to refer to Ext.A9. Going by the certification thereunder, the deceased was only a trainee in the trade of Turner from August 2002 to July 2004. It is evident that he had, in fact, left the company much prior to the date of the accident. It is to be noted that the accident occurred only subsequently, i.e., on 3.11.2004. In such circumstances, Ext.A9 could not have been taken as a document evidencing the fact that the deceased was an employee of Holidays FM and he was earning an amount of `5500/-. In fact, it only revealed that during the period specifically mentioned therein he had been a trainee in the said company. That apart, the said certificate was not proved by examining any competent officer attached to the said company. Even if it was proved it could not have fetched any help to the appellants for establishing the monthly income of the deceased. The Tribunal **M.A.C.A.1958/2013** 5 fixed the income of the appellant as `4500/-. In this context, it is to be noted that in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed `4500/- only as monthly income, notionally, for granting compensation under the head loss of dependency. In such circumstances, we do not find any illegality or irregularity with the Tribunal in fixing the income of the appellant notionally. In such circumstances, we do not find any reason to interfere with the monthly income fixed notionally by the Tribunal. But at the same time, the impugned judgment would reveal that the Tribunal deducted 1/3 of the said income towards the personal expenses of the deceased while arriving at the compensation payable under the head loss of dependency. In the light of the decision in **Sarla Verma** 's case (supra) and taking into account the indisputable fact that the deceased was a bachelor, 50% of the actual income ought to have been deducted towards personal expenses. But at the same time, before effecting such a deduction, the addition to actual income taking into account the future prospects ought to have been made. **M.A.C.A.1958/2013** 6 Though, strictly speaking, the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** as relates addition to the income would apply only to self employed persons or persons with fixed wages, taking note of the fact that the deceased was aged only 20 years and taking into account the fact that he was a certificate holder as is evident from Ext.A10 and was a trainee in the trade of Turner, 50% of the monthly income fixed could have been added to it reckoning the future prospects. From the annual income arrived at by following such a calculation, 50% has to be deducted in the light of the decision of the Hon'ble Apex Court in **Sarla Verma'** s case towards personal expenses. In the light of the said decision, multiplier ought to have been taken as 18 instead of 11. In the light of what is stated above and following the same formula with modified multiplicand and multiplier the compensation for loss of dependency to which the appellants would be entitled if re-assessed, they would get an amount of `3,33,000/- additionally. Hence, it is awarded. The learned counsel for the appellants contended that the appellants are **M.A.C.A.1958/2013** 7 entitled to get enhancement of compensation under the head loss of love and affection, as well. The appellants claimed an amount of `1,00,000/- and Tribunal granted `25,000/- under the said head. As noticed hereinbefore, the first appellant who is the father of the deceased is no more and the mother of the appellant and the third appellant i.e., the brother of the deceased, were respectively aged 50 years and 21 years at the time of death of Hari Krishnan. In such circumstances, we find no reason to grant any further enhancement over and above what was granted by the Tribunal under the said head. With respect to pain and suffering also, the learned counsel for the appellants contended that the amount has to be enhanced. We do not find any reason to uphold the said contention as the deceased Hari Krishnan died instantaneously. It is to be noted that despite the fact that Hari Krishnan died instantaneously the Tribunal granted `15,000/- under the said head. Towards funeral and allied expenses, the appellants claimed an amount of `25,000/-. But the Tribunal granted only `10,000/-. The contention of the appellants that it is **M.A.C.A.1958/2013** 8 inadequate is only to be sustained in the light of the decision in **Rajesh's case** (supra) to the effect that in the absence of evidence of higher expenses a minimum of `25,000/- has to be granted under the said head. Here, there is absence of evidence of higher expenses and therefore, we award only an amount of `15,000/- more under that head. For damage to clothing, the appellants claimed an amount of `1,000/- and the Tribunal granted only an amount of `500/-. We are of the view that the appellants are entitled to get additionally an amount of `500/- under the said head as the dresses worn by the deceased must have been damaged in the accident taking into account the nature of the injuries. In the light of the discussions as above, the appellants are entitled to get an amount of `3,48,500/- over and above the amount of compensation awarded by the Tribunal. The said enhanced amount will carry interest @ 8% from the date of the petition till realisation. The second respondent is directed to deposit the said amount within three months from the date of receipt of a copy of this judgment failing which the amount remaining to be paid will **M.A.C.A.1958/2013** 9 carry interest @ 9%. There will be no order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH (JUDGE)** **spc/** **M.A.C.A.1958/2013** 10 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.1958/2013** 11