C.M. Poulose and Others v Jayan K. Mathew and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937** ## **MACA.No. 326 of 2008 ( )** **------------------------AGAINST THE AWARD IN OPMV 1529/1999 of M.A.C.T.,ERNAKULAM DATED 12-09-2006** ## **APPELLANTS/PETITIONERS:** **--------------------------------------------** **1. C.M.POULOSE, AGED 62 YEARS, S/O.LATE C.P.MATHAI, CHIRACKAL HOUSE, PATTAL IRINGOLE P.O., PERUMBAVOOR AND NOW RESIDING AT CHIRACKAL HOUSE, PAZHAMTHOTTAM P.O. KIZHAKKAMBALAM. ** DIED** **2. JINU PAUL, AGED 33 YEARS, S/O.C.M.POULOSE, RESIDING AT DO. DO.** **3. JISHA PAUL, AGED 16 YEARS, D/O.C.M.POULOSE, RESIDING AT DO. DO. (REPRESENTED BY HER FATHER AND NATURAL GUARDIAN C.M.POULOSE, IST APPELLANT).** **** FIRST APPELLANT REPORTED DEAD. THE 2ND AND 3RD APPELLANTS ARE RECORDED AS THE ONLY LEGAL HEIRS OF THE FIRST APPELLANT AS PER ORDER DATED 12.10.2009 ON MEMO CF NO.13412/2009.** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENTS/RESPONDENTS:** **------------------------------------------------** **1. JAYAN.K. MATHEW, S/O.MATHEW, KANJIRAKKATTU HOUSE, VILANGU P.O., KIZHAKKAMBALAM.** **2. K.G.ANILKUMAR, S/O.K.K.GOPALAN,** - **KATTAMMAKKADA HOUSE, VILANGU P.O., KIZHAKKAMBALAM.** **3. NATIONAL INSURANCE CO.LTD., BY ITS REGL. MANAGER, REGL. OFFICE, MUTHOOT TOWERS M.G.ROAD, COCHIN-35.** ## **MACA.No. 326 of 2008** ## **4. UNNIKRISHNAN NAIR,** ## **NARANGAVALLAPPIL HOUSE, THAINIMAL P.O.** ## **5. NEW INDIA ASSURANCE CO.LTD.,** - **ERNAKULAM.** **6. CHANDRAMATHY, W/O.LATE UNNIKRISHNAN NAIR NARANGA VALAPPIL HOUSE, THAINIMAL P.O., VELOOR.** ## **7. VIJAYALAKSHMI, D/O.LATE DO. DO.** ## **8. BABU, S/O.LATE DO. DO.** ## **9. BHAGYALAKSHMI, D/O.LATE DO. DO.** **R3 BY ADV. SRI.JOE KALLIATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.326 of 2008** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 1[st] day of March, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ The claimants in O.P.(M.V.)No.1529 of 1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam are the appellants herein. The claim petition was filed by the father and siblings of late Jibin Paul for compensation for the death of their breadwinner. The case of the claimants in the claim petition was that the deceased was travelling in a scooter on the fateful day, on 31.3.1999, at about 7.30 p.m. and when he reached the place of occurrence, he turned the scooter to the right side after giving proper signal and at that time, another motor vehicle with Registration No.KL-7/C-2544 owned by the first respondent, driven by the second respondent and insured with the third respondent, came from behind and hit against the scooter driven by the deceased. Due to that, he sustained severe injuries and succumbed to the same after four days while he was undergoing treatment in the hospital. He was aged only 20 years at the time of accident and was a student undergoing diploma course in Air Conditioning and Refrigeration, evidenced by Ext.A10 certificate issued ## **M.A.C.A.No.326 of 2008** ## **-:2:-** by the authorities of the institution. According to the petitioners, apart from that he was getting Rs.4,000/- per month by doing some other work also. So they claimed a total compensation of Rs.5,00,000/under various heads. 2. Respondents 4 and 5 are the owner and insurer of the scooter in which the deceased was travelling. During the pendency of the proceedings the fourth respondent died and his legal representatives were impleaded as additional respondents 6 to 9. 3. Respondents 1 to 3 filed statement contending that there was no negligence on the part of the second respondent and the accident occurred due to the negligence of the deceased. So they are not liable to pay any compensation. The total compensation claimed is exorbitant and they prayed for dismissal of the application. 4. The fifth respondent filed a statement stating that there is no liability on them as the accident occurred due to the negligence of the second respondent. They prayed for dismissal of the application. The other respondents remained absent. 5. One eye witness was examined as PW1 and Exts.A1 to A10 were marked on the side of the claimants. No oral or documentary evidence was adduced on the side of the respondents. 6. After considering the evidence on record, the Tribunal found that the accident occurred due to the rash and negligent driving of the ## **M.A.C.A.No.326 of 2008** ## **-:3:-** motor cycle by the second respondent and awarded a total compensation of Rs.1,70,350/- under various heads as follows: |**_Head_**|**_Amount awarded_**| |---|---| |Transportation & funeral expenses|Rs.4,000| |Loss of estate|Rs.10,000| |Pain and suffering|Rs.15,000| |medical expenses|Rs.37,850| |Loss of expectancy|Rs.10,000| |Loss of dependency|Rs.93,500| |Total|Rs.1,70,350/-| The Tribunal also directed the third respondent insurance company to pay the amount together with interest at the rate of 7.5% per annum from the date of petition till payment with proportionate costs. The amount was also apportioned among the petitioners. Dissatisfied with the quantum of compensation awarded, the above appeal has been preferred by the appellants/petitioners before the Tribunal. 7. During the pendency of the appeal the first appellant died and a memo has been filed stating that no other legal heirs need be impleaded as appellants 2 and 3 are the legal heirs of the deceased first appellant and that was recorded. 8. Heard Smt.Manju M., learned counsel appearing for the appellants and Sri.Joe Kalliath, learned counsel appearing for the third respondent. 9. The counsel for the appellants submitted that the Tribunal ## **M.A.C.A.No.326 of 2008** ## **-:4:-** had arbitrarily fixed the income as Rs.15,000/- per annum which is very low considering the prospect of the deceased being getting more amount after completing his course. Further the Tribunal had taken the multiplier based on the age of the dependents which is not correct. The total compensation awarded is not proper and they are entitled to get enhanced compensation. 10. On the other hand, learned counsel appearing for the insurance company submitted that the total amount awarded, considering the circumstances, is just and proper. 11. The fact that the deceased was aged 20 years is not in dispute as it is proved by producing his S.S.L.C. certificate. It is also seen from Ext.A10 that the deceased was a student doing diploma course in Air Conditioning and Refrigeration and while he was doing the course he met with the accident and lost his life. The notional income of Rs.15,000/- was fixed in the year 1994 for non-earning persons and without any qualification. But in a case where a person is studying for diploma course, the same yardstick cannot be taken as after completion of course, there is a possibility of getting some employment giving a better emolument. So considering the circumstances, we feel that the monthly income of the deceased can be taken as Rs.3,000/- per month instead of annual income of Rs.15,000/- taken by the Tribunal. Further the decision reported in ## **M.A.C.A.No.326 of 2008** ## **-:5:-** ## **Amrit Bhanu Shali and Others v. National Insurance Company** **Limited and Others** [(2012) 11 SCC 738] it has been held that the age of the deceased has to be taken for the purpose of computing the multiplier for assessing compensation. In the decision reported in ## **Munna Lal Jain and Others v. Vipin Kumar Sharma and Others** [JT 2015 (5) SC 1] a Three Judge Bench of the Supreme Court held that the age of the deceased being certainty that will have to be taken into consideration for the purpose of computing multiplier for assessing compensation under the head loss of dependency. In the decision reported in **Sarla Verma and Others v. Delhi Transport Corporation and Another** [(2009) 6 SCC 121] it has been held that in the case of a bachelor and dependents being parents, 50% of the income has to be deducted for personal expenses of the deceased and upto the age group of 30, the multiplier applicable is 18. Further in the decision reported in **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)] the Supreme Court has held that even in the case where the deceased is not getting a permanent income, some allowance for future prospects will have to be added and up to the age of 30 years, 50% of the income has to be added for future prospects for assessing compensation under the head loss of dependency. If this principle is applied, then the appellants will be entitled to get a compensation of Rs.4,86,000/- (Rs.3,000X150/100 =Rs.4,500X12X18X50/100) instead ## **M.A.C.A.No.326 of 2008** ## **-:6:-** of Rs.93,500/- awarded by the Tribunal, thereby they will be entitled to get an additional compensation of Rs.3,92,500/- under the head loss of dependency. Further in the decision reported in **Rajesh v. Rajbir Singh** (supra) the Honourable Supreme Court has fixed the compensation payable to the parents for loss of love and affection as Rs.50,000/- each. In this case the surviving parent is only the father. So he is entitled to get Rs.50,000/- under the head compensation for loss of love and affection. In the same decision, the Supreme Court has held that in the absence of contra evidence adduced regarding higher expenses for funeral expenses minimum of Rs.25,000/- will have to be awarded. So deducting Rs.4,000/- awarded by the Tribunal under the head transportation and funeral expenses, they will be entitled to get an additional amount of Rs.21,000/- under that head. Since the first appellant is no more and appellants 2 and 3 are going to inherit the amount payable to the first appellant, we feel that there is no necessity to award any amount under the head loss of love and affection for the siblings in this appeal. 12. So in all the appellants will be entitled to an additional amount of Rs.4,63,500/- over and above the compensation awarded by the Motor Accidents Claims Tribunal which the third respondent insurance company is liable to pay with interest at 7.5% per annum from the date of petition till payment. Four months time is granted to ## **M.A.C.A.No.326 of 2008** ## **-:7:-** the insurance company to pay the amount. The additional amount awarded will be shared among appellants 2 and 3 equally. With the above modification of the impugned award passed, the appeal is allowed in part and disposed of accordingly. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. to Judge ## **vpv**