Dr. N. Mohanan and Dr. P. Madhubala v. M/S. National Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 3RD DAY OF JUNE 2016/13TH JYAISHTA, 1938H** **MACA.No. 2277 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 463/2004 of M.A.C.T., THALASSERY** ## **APPELLANTS/PETITIONERS** **------------** ## **1. DR. N.MOHANAN** **S/O.LATE KUNHIKRISHNAN NEUROLOGIST KOYIL HOSPITAL KANNUL RESIDING AT TALAP, P.O PALLIKUNNU, KANNUR DISTRICT** **2. DR.P.MADHUBALA** **D/O.LATE BALAKRISHNAN, AGED 61 YEARS SUPERINTENDENT DISTRICT HOSPITAL KANNUR RESIDING AT TALAP P.O PALLIKKUNNU KANNUR DISTRICT** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** **RESPONDENT/RESPONDENT NO.3:** **--------------** **M/S. NATIONAL INSURANCE CO. LTD P.B NO 40 BANK ROAD KANNUR 670 001** **BY ADV. SRI.P.JACOB MATHEW BY ADV. SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.2277 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of June, 2016 ## **JUDGMENT** ## Ravikumar, J. The appellants/claimants preferred this appeal on being aggrieved and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV) No.463/2004. They are the parents of one Anoop Mohan, who died in a motor vehicle accident on 10.10.2003. He was a pillion rider on a motor cycle bearing Reg.No.KL 13 F/7782. At about 8.30 p.m. it reached at Kannur-Mangatuparamaba road, the offending vehicle which is a lorry bearing Reg.No.KA 19D/7959, driven by the second respondent, dashed against the motor cycle. Consequently, Anoop Mohan sustained injuries and succumbed to them. In fact, the death was instantaneous. The deceased was aged 20 years and was a Mechanical Engineering student in Govt. Engineering College, Kannur. It is in the said circumstances that the appellants filed the above MACA No.2277/2012 2 mentioned claim petition under Section 166 of the Motor Vehicles Act claiming a total compensation of Rs.25 lakhs. It is specifically stated in the claim petition that he was also interested in extracurricular activities and published a book titled “Viramathilakam”. 2. On the side of the appellants, the first appellant was examined as PW1 and Exts.A1 to A15 were got marked. On the side of the respondents, there was no oral evidence and Exts.B1 to B4 were got marked. On evaluation of the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award for a total compensation of Rs.5,17,000/- with interest @ 7.5% with proportionate costs. The appellant seeks for enhancement of the quantum of compensation in this appeal. 3. We have heard the learned counsel for the appellants and the learned counsel appearing for the respondent. 4. It is admitted by both sides that there is no dispute regarding the accident, insurance coverage of the offending vehicle as also the cause of the accident as negligence on the part of the driver of the offending vehicle. Thus, obviously, the only question survives for MACA No.2277/2012 3 consideration is whether the appellants are entitled to get enhanced compensation. 5. The learned counsel appearing for the appellants contended that the Tribunal fixed the monthly income for the purpose of computing the compensation under the head loss of dependency too meagerly at Rs.7,500/- ignoring the relevant aspects that deceased was a Mechanical Engineering student in Government Engineering College, Kannur. It is further submitted that the Tribunal discarded the dictum laid down by the Apex Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** in fixing the multiplier. Instead of fixing the multiplier with reference to the age of the deceased, the Tribunal fixed the multiplier with reference to the age of the parents and fixed it as 11. Therefore, it is contended that it is the erroneous adoption of the multiplier as well as the monthly income which resulted in denial of just compensation to the appellants. It is also submitted that the Tribunal granted only Rs.5,000/- towards funeral expenses. It is further contended that a perusal of the schedule of compensation appended to the award would reveal that the MACA No.2277/2012 4 compensation granted by the Tribunal under different heads are also on the meagre side. 6. Per contra, the learned counsel appearing for the respondent submitted that since the deceased was only a student and had not started earning anything, the Tribunal could not be found fault with in fixing the multiplicand for calculation purpose as Rs.7,500/-. So also, it is contended that the Tribunal cannot be said to have committed any error in taking the average age of the parents for the purpose of identifying the correct multiplier. It is further contended that a perusal of the schedule of compensation attached to the award would reveal that the Tribunal has granted adequate compensation under all heads and therefore appellate interference is not called for. 7. We will first consider the question whether the fixation of the multiplier as 11 taking into account the average age of the parents by the Tribunal warrants interference. In a claim petition filed under Section 166 of the Motor Vehicles Act for the purpose of calculating compensation for loss of dependency how the multiplier could be adopted with reference to the average age of the parents. The position MACA No.2277/2012 5 has been settled by the Honourable Apex Court in the decision in **Sarla Varma's** case (supra) and the ratio in the said decision had received affirmance in **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** . In the light of the decisions referred (supra), the multiplier in such a case to be adopted with reference to the age of the deceased. In such circumstances, there cannot be any doubt with regard to the position that the Tribunal has clearly erred in adopting the multiplier with reference to the average age of the parents of the deceased and instead it should have been fixed with reference to the age of the deceased. In this case, the deceased Anoop Mohan was aged only 20 years and therefore, the multiplier applicable is '18'. 8. Now, we will consider the question whether the Tribunal has correctly fixed the monthly income of the deceased for the aforesaid purpose. True that the deceased was admittedly, a student and as such he was a non-earning person. However, the learned counsel appearing for the appellants contended that it is in fact incorrect to say that he had not started to earn anything. Ext.A9 would reveal that he had published a book titled “Viramathilakam”. We are of the view that MACA No.2277/2012 6 for considering the aforesaid issue, certain other factors which are very much relevant, were not actually given proper consideration by the Tribunal. The unchallenged oral testimony of PW1 to the effect that the deceased was a Mechanical Engineering student in Govt. Engineering College, Kannur together with Ext.A4 certificate issued from the said college is certainly a relevant factor to be reckoned. In the case of an Engineering student, in the decision reported in **Ramakrishna Pillai K. and others v. New India Assurance Co.Ltd ( 2015(3) KLJ 750)** , a Division Bench of this Court fixed the monthly income notionally at Rs.12,000/-. Certainly, such an income was fixed taking into account the fact that in no governmental department, the starting pay of an engineer would be less than that. 9. The next question to be considered is as to whether after fixing the monthly income for the aforesaid purpose notionally, any addition is to be made to the said income reckoning the future prospects. That question is also covered by the decision of the Hon'ble Apex Court in **R.K.Malik v. Kiran Pal [( 2009) 4 SCC 1]** . Going by the said decision in the case of students after fixing the monthly income MACA No.2277/2012 7 notionally it is permissible to make an addition to the income fixed, reckoning the future prospects. 10. In this case, it is evident that he has performed very well in the school and had obtained admission in a professional college. He was undergoing studies as an Engineering Student in Govt.Engineering College, Kannur. In the said circumstances, in the light of the aforesaid decision and taking into account the factors mentioned herein before, we have no hesitation to hold that the learned counsel for the appellants is certainly justified in contending that future prospects should have been taken by the Tribunal. In the circumstances, it has to be held that the Tribunal clearly erred in not fixing the monthly income of the deceased for the aforesaid purpose without granting addition taking into account the future prospects. In the light of the decision in **Sarla Varma's** case (supra), in the case of a bachelor, 50% of the income has to be deducted towards the personal expenses of the deceased. In the light of the decision in **Sarla Varma'** s case (supra ), 50% has to be added to the said income before making such a deduction. After re-assessment of the compensation payable under the said head taking MACA No.2277/2012 8 into account the aforesaid factors and by substituting the multiplicand as also the multiplier, the amount payable to the appellants would become Rs.19,44,000/-. The Tribunal has already granted an amount of Rs.4,95,000/-. In the said circumstances, after deducting the said amount, the appellants are entitled to get an amount of Rs.14,49,000/additionally under that head. 11. While considering the question whether the appellants are entitled to get any enhancement under the head funeral expenses, the decision of the apex court in **Rajesh v.Rajbir Singh ( 2013 (3) KLT 89 (SC)** is taken into account. In that decision, the Apex Court held that in the absence of evidence for higher expenses, the minimum amount to be granted towards funeral expenses would be Rs.25,000/-. The Tribunal has granted Rs.5,000/- under that head to the appellants. In such circumstances, they are entitled to get an additional amount of Rs.20,000/- under that head. Though the learned counsel for the appellant contended that the compensation granted by the Tribunal under other heads are on the lower side, on going through the amounts granted under different heads and also on getting convinced that the MACA No.2277/2012 9 appellants are now getting just compensation, we are of the view that the said contention is bereft of any basis. In short, the appellants are not entitled to get any enhancement under any other heads. The upshot of the discussion is that the appellants are entitled to get an additional compensation of Rs.14,69,000/- and it is awarded. The said enhanced compensation will carry interest @ 8% per annum from the date of petition till realization. The respondent-insurance company is directed to deposit the said amount within a period of four months from the date of receipt of a copy of this judgment, failing which, the entire amount remaining to be paid will carry interest @ 9% per annum from the date of petition till realization. The apportionment of the amount among the appellants shall be in the same ratio as ordered by the Tribunal. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 06/06/2016