Devaki v. Muhammed Haneefa 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** **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939** ## **MACA.No. 197 of 2012 ()** **-----------------------AGAINST THE AWARD IN OPMV 918/2009 of M.A.C.T OTTAPPALAM DATED 18-10-2011 ------------------------------------------** **APPELLANT(S)/APPELLANT/PETITIONER :** **-------------------------------------------------------------** ## **DEVAKI** **W/O. VASUDEVAN, PULLIKKAL CHERUM (CHERI) PARAMBIL HOUSE, THARUVAKONAM, TRIKKIDIRI VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.K.B.ARUNKUMAR** ## **RESPONDENT(S)/RESPONDENTS :** **--------------------------------------------------** ## **1. MUHAMMED HANEEFA** **S/O. T.A.M.AMEER, KADAMTHOTTIL HOUSE, CHUNANGAD P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT. (DRIVER OF TN-45/B/1567 LORRY), PIN-679 101.** ## **2. ARUMUGHAN V.** **S/O. VELUSWAMY S., D-60, KURICHI HOUSING UNIT PHASE-1, SIDCO, COIMBATORE, PIN-641 021. (OWNER OF TN-45/B/1567 LORRY).** ## **3. UNITED INDIA INSURANCE CO. LTD.** **80, IV, 1940 B, TRICHY ROAD, RAMANATHAPURAM, COIMBATORE-641 045. (INSURER OF TN-45/B/1567 LORRY).** ## **4. VASUDEVAN** **S/O. CHAMI, PULLIKKAL CHERUM (CHERI), PARAMBIL HOUSE, THARUVAKONAM, TRIKKIDIRI VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 101.** **R3 BY ADV. SRI.M.A.GEORGE R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** ## **C.T.RAVIKUMAR & ANIL.K.NARENDRAN, JJ. ============================= M.A.C.A. No.197 of 2012** **============================ Dated this the 22[nd] day of June, 2017** ## **JUDGMENT** ## **ANIL.K.NARENDRAN, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Ottapalam dated 18.10.2011 in O.P.(M.V.)No.918/2009, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, claiming compensation on account of the death of her son Ajayan, in a motor accident which occurred on 09.10.2009, while he was travelling in a motor cycle. At the place of accident, the motor cycle was hit by a lorry bearing Reg.No.TN-45/B 1567 driven and owned by the 1[st ] and 2[nd] respondents and insured with the 3[rd] respondent. As a result of the accident, the deceased sustained serious injuries, who succumbed to the injuries immediately after the accident. Claiming a total _M.A.C.A. No.197 of 2012 -2-_ compensation of Rs.7,00,000/- under different heads, claim petition was filed before the Tribunal. In the said claim petition, the father of the deceased was arrayed as the 4[th] respondent. 2. Before the Tribunal Exts.A1 to A9 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by the 1[st] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.2,53,000/- together with interest at the rate of 7% per annum from the date of petition till realisation and the 3[rd] respondent insurer was directed to deposit the said amount before the Tribunal. The appellant was also allowed to realise proportionate cost. Out of the award amount less court fee, a sum of _M.A.C.A. No.197 of 2012_ _-3-_ Rs.50,000/- was directed to be disbursed to the 4[th] respondent father. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal 5. We heard both sides. 6. The sole issue that arises for consideration in this appeal is as to whether the quantum of compensation awarded by the Tribunal under different heads warrants an interference in this appeal. 7. As we have already noticed, the accident occurred on 09.10.2009. At the time of the accident, the deceased was aged 22 years. According to the appellant/claimant, the deceased was earning a monthly income of Rs.6,000/as a driver. However, no reliable materials were produced before the Tribunal in order to prove his monthly income. Therefore, the Tribunal fixed the monthly income notionally at Rs.3,500/- for the purpose of assessing compensation. Since the deceased was a bachelor, ½ of the notional monthly income was deducted towards his _M.A.C.A. No.197 of 2012 -4-_ personal and living expenses. However, instead of applying the multiplier with reference to the age of the deceased, the Tribunal applied a multiplier of 11 taking into account the age of the appellant/claimant and that of the 4[th] respondent, who are the parents of the deceased. By virtue of the settled law, as declared by the Apex Court, the multiplier has to be adopted based on the age of the deceased and not based on the age of the parents. In such circumstances, in the light of the judgment of the Apex Court in **Sarala Varma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], the proper multiplier applicable in the instant case is 18. 8. Though no reliable materials were produced before the Tribunal to prove the monthly income of the deceased. The accident is of the year 2009 and at the time of the accident the deceased was an able bodied person, aged 22 years. Considering the economic situation prevailing at the time of the accident, we deem it appropriate to refix his monthly income notionally at Rs.5,000/-. _M.A.C.A. No.197 of 2012_ _-5-_ 9. Reckoning the monthly income of the deceased as Rs.3,500/-, deducting 50% towards his personal and living expenses and applying a multiplier of 11, the Tribunal awarded a sum of Rs.2,31,000/- as loss of dependency [3500 x 12 x 11 x ½]. Since we have already refixed the monthly income of the deceased as Rs.5,000/-, the compensation payable under this head comes to Rs.5,40,000/- [5000 x 12 x 18 x ½], resulting an additional compensation of **Rs.3,09,000/** -(5,40,000-2,31,000). 10. Towards loss of love and affection, the Tribunal awarded only a sum of Rs.10,000/-. In _**Rajesh v. Rajbir Singh**_ (2013 (3) KLT 89), the Apex Court awarded Rs.1,00,000/- as compensation under the said head. In such circumstances, considering the fact that the accident is of the year 2009, the compensation payable under this head will have to be refixed as Rs.1,00,000/-, resulting an additional compensation of **Rs.90,000/-** . 11. Towards funeral expenses, the Tribunal awarded only a sum of Rs.5,000/-. In view of the judgment of the Apex Court in **Rajesh's case [supra]** , the compensation _M.A.C.A. No.197 of 2012_ _-6-_ payable under this head is refixed to Rs.25,000/-, resulting an additional compensation of **Rs.20,000/-** . 12. Towards pain and suffering, no amount has been awarded by the Tribunal. Considering the fact that the deceased sustained fatal injuries in the accident, we deem it appropriate to award a sum of **Rs.5,000/-** under the head pain and suffering. 13. Towards damage to clothing, no amount has been awarded by the Tribunal. Considering the fact that the accident is of the year 2009, we deem it appropriate to grant **Rs.1,000/-** under this head. 14. In the result this appeal is disposed of, allowing an additional compensation of **Rs.4,25,000/-** [Rupees Four lakhs twenty five thousand only] [3,09,000 + 90,000 + 20,000 + 5,000 + 1,000] under the above heads, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 15. As discernible from the award passed by the Tribunal, out of the original compensation awarded in O.P.(M.V.)No.918/2009 the 4[th] respondent father was _M.A.C.A. No.197 of 2012 -7-_ given only a sum of Rs.50,000/- towards his share. In such circumstances the additional compensation of Rs.4,25,000/- granted in this appeal shall be apportioned between the appellant and the 4[th] respondent in the ratio 60:40. 16. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within a period of 2 months from the date of receipt of a copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- ## **ANIL.K.NARENDRAN, JUDGE** VS /TRUE COPY/ PA TO JUDGE