Fathima @ E.K. Fathivi Mohammad and Others v. K. Sulai kabi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** - **& THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** ## **THURSDAY, THE 31ST MAY 2007 / 10TH JYAISHTA 1929** ## **MFA.No. 628 of 2000()** - **----------------------------OPMV.109/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** **....................** ## **APPELLANTS/ PETITIONERS** - **-------------------** **1. FATHIMA @ E.K. FATHIVI MOHAMMAD, W/O. LATE MOHAMMAD, PARAKKAL HOUSE, VETTIKKATTIRI P.O., CHERUTHURUTHY VIA, THRISSUR.** **2. BUSHARA,D/O. LATE MOHAMMAD, PARAKKAL HOUSE, VETTIKKATTIRI P.O., CHERUTHURUTHY VIA, THRISSUR.** **3. ASHRAF, S/O. LATE MOHAMMAD, PARAKKAL HOUSE, VETTIKKATTIRI P.O., CHERUTHURUTHY VIA, THRISSUR.** **4. AMINA, W/O. LATE KUNJAPPU, PARAKKAL HOUSE, VETTIKKATTIRI P.O.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS: RESPONDENTS** - **----------------------** **1. K.SULAIKABI, W/O. S.A. WAHAB, MAHABOOB MANZIL, ANNANJOOR, KASARAGODE.** **2. GOPALA N. BELLUNGAN N.R., MEKRAJE HOUSE, NAKRAJE P.O., KASARAGODE.** **3. NEW INDIA ASSURANCE CO. LTD., BR. KASARAGODE.** ## **BY ADV. SRI.KKM.SHERIF** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/05 /2007 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **J.B. KOSHY and K.P.BALACHANDRAN, JJ. ---------------------------M.F.A. No. 628 of 2000 ---------------------------Dated this the 31st day of May, 2007** ## **Judgment** ## **Koshy, J.** Appellants filed a claim petition before the Motor Accidents Claims Tribunal, claiming an amount of Rs.10,52,000/- for the death of the husband of the first appellant. Dependents of the deceased consist of his wife, two children and his mother. Case of the appellants was that the quantum of compensation, awarded by the tribunal, was very meagre, even though the tribunal found that the accident occurred due to the negligence of the second respondent, the driver of the vehicle owned by the first respondent and the above vehicle was insured by the third respondent, insurance company. The total compensation awarded was only Rs.1,76,000/-. Only the quantum of compensation is disputed in this appeal. 2. The deceased was aged only 48 at the time of the accident, that is, on 16.6.1996. His widow was much younger. The tribunal has taken 13 as the multiplier, as the deceased was aged 48, at the time of M.F.A.No.628/2000 2 the accident. If the age of the widow was taken, a higher multiplier ought to have been taken. But, the Apex Court in various cases held that multiplier should be selected as claims under section 166-A considering the age of the widow and dependents and lower multiplicand should be taken for calculation of dependency compensation. (See: United India Insurance Company Ltd. v. Lehru and others) (AIR 2003 SC 1292). A three member bench of the Supreme Court in Smt.Supe Dei and others v. M/s.National Insurance Company Ltd.and another (JT 2002 (Suppl.1) SC 451), held that the second schedule of the Motor Vehicles Act is framed for the purpose of awarding compensation under section 163-A, but, it serves as a guideline for determination of compensation under section 166 of the Motor Vehicles Act. Since the victim of the accident in that case was aged 32, considering the second schedule, Hon'ble Supreme Court accepted 17 as the multiplier. In United India Insurance Co. Ltd. v. Patricia Jean Mahajan and others (JT 2002 (5) SC 74), the Apex Court held that, except in very rare cases, multiplier system should not be deviated from. The other methods, which were in vogue prior to the introduction of the multiplier system, were held to be no more good M.F.A.No.628/2000 3 system. It was further held that normally the multiplier, as indicated in the second schedule, should be applied. Though the second schedule is found to be a safe guide for the purpose of calculation of the amount of compensation, in special circumstances, it can be varied. In that case, it was also held that if the multiplicand is very high, a lesser multiplier can be taken. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and another ((2003) 3 SCC 148), it was held that structured formula mentioned in the second schedule gives guidelines for determination of the amount of compensation in terms of section 166 of the Motor Vehicles Act. Deviation from the structured formula can be resorted to only in exceptional cases and ordinarily the above multiplier system should be followed. In view of the above decision, contention of the appellant that section 166-A covered cases when there is no negligence on the part of the other side etc., if negligence is proved on the other side, always compensation awarded should be more cannot be accepted. 3. Now, we will consider what is the multiplicand to be used in this case. It is the case of the appellants that claimant was employed in Bahrain. M.F.A.No.628/2000 4 Ext.A7 would show that he was employed in British Club at Bahrain and his salary was Bahrain Dinar 90 per month. He came for leave and after the leave, when he was going back, the accident occurred on his way to the airport. Ext.A7 series also shows that he was on leave at the time of death and salary statement shows that leave salary was also paid by the Bahrain company till date of death. He was employed as a Porter at Bahrain. 90 Bahrain Dinar was equivalent to Rs.8,734/- as per the exchange rate applicable at the time of accident. Apart from the above salary, according to the claimant, he was also getting other facilities like boarding and lodging etc. In Patricia Jean Mahajan's case (supra) it was held that the exchange rate as on the date of the judgment should be taken into account for the victims employed abroad. If it is taken into account, monthly income in rupee terms will be much higher. Even though tribunal accepted Ext.A7 certificate as valid, it did not assess the compensation on the basis of Ext.A7 certificate because in Gulf countries, appointments are made on contracts and there is no security of employment. However, in this case, applicant produced Exts. A8, A8 (a) and A8 (b) copy of passports would show that he was working in M.F.A.No.628/2000 5 Bahrain for 14 years. Ext.A9 is the employment identity card given by the Bahrain Government for work. The tribunal held that considering the educational qualifications, he will be fit only as a manual labourer. If he was working in India, he would have been getting Rs.1,500/- per month. We are of the view that the above view is wholly incorrect. In Kerala, minimum wages fixed for a manual labourer or an unskilled worker employed in a commercial establishment in 1995 was more than Rs.150/per day. In this case, he was employed in Bahrain and was getting an amount of Rs.9,000/- per month. It is true that living expenses in Bahrain may be high. In this connection, even though no bank accounts were produced, PW1 deposed that she was getting Rs.5,000/-per month and claimed that at least Rs.5,000/- should be taken as the multiplicand. It is also further submitted that he was residing in the work place itself and his expenses may not be as much. He was employed in Gulf. He was earning for the family. Considering the fact that he was earning Rs.9,000/- we take that he was giving at least Rs.2,500/- per month to the family. Since we have taken a low multiplicand, multiplier 13 fixed by the tribunal requires no interference. If that M.F.A.No.628/2000 6 be so, compensation for dependency will be Rs.1666.66 x 12 x 13 = Rs.2,59,999/- rounded to Rs.2,60,000/-. The tribunal has awarded Rs.1,56,000/- under this head. Hence, additional compensation payable will be Rs.1,04,000/-. 4. It is contended that amounts awarded under various other heads are also very meagre. We are of the opinion that considering the total amount granted, no further increase is necessary. The above Rs.1,04,000/should be deposited by the third respondent insurance company with 7% interest from the date of application till its deposit within three months from the date of receipt of a copy of this judgment. On deposit of the above amount, Rs.25,000/- should be given to fourth appellant and the entire balance amount with interest shall be disbursed to appellant Nos.1 to 3, widow and children, in equal proportion. Appeal is allowed partly. ## **J.B.KOSHY** **==> picture [339 x 9] intentionally omitted <==** ## **K.P.BALACHANDRAN JUDGE** vaa M.F.A.No.628/2000 7 **J.B. KOSHY AND K.P.BALACHANDRAN, JJ.** -------------------------M.F.A.NO.628/200 -------------------------- **JUDGMENT** Dated:31st May, 2007