Gopalan K.K. and Leela Gopalank and Shyju K.G. v. Shanavas N.M and The Manager, ICICI Lombard General Insurance Company

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938 MACA.No. 868 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 1674/2010 of M.A.C.T., ERNAKULAM DATED 14-10-2011 APPELLANT(S)/PETITIONERS: ----------------------- - 1. GOPALAN.K.K., S/O.KELAN, AGED 77, KUNJUKATTIL HOUSE, SOUTH PARAVUR P.O., MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT [DIED] 2. LEELA GOPALAN, W/O.GOPALAN, AGED 61, KUNJUKATTIL HOUSE, SOUTH PARAVUR P.O., MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT (RECORDED) 3. SHYJU K.G. - S/O.GOPALAN, AGED 37 YEARS, KUNJUKATTIL HOUSE, SOUTH PARAVUR P.O., MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT (RECORDED) *(IT IS RECORDED THAT THE 1ST APPELLANT IS NO MORE AND APPELLANT NOS.2 AND 3 ARE THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT VIDE ORDER DATED 31.10.2014 IN MEMO DATED 27.10.2014 IN MACA 868/12). BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY RESPONDENT(S)/RESPONDENTS: -------------------------- 1. SHANAVAS.N.M, S/O.MOIDEENKUTTY K.A., NAVAS MANZIL, NADUVATHU NAGAR P.O., AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688559 2. THE MANAGER, ICICI LOMBARD GENERAL INSURANCE COMPANY, POPULAR VEHICLES & SERVICE, PERANDOOR ROAD, ELAMAKKARA, ERNAKULAM DISTRICT-682036 R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS T.VARGHESE R1 BY ADV. SMT.ACHU SUBHA ABRAHAM R1 BY ADV. SMT.T.M.BINITHA R1 BY ADV. SRI.ASHOK THAMPAN R2 BY ADV. SRI.K.B.RAMANAND R2 BY ADV. SRI.R.AJITH KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K. P. JYOTHINDRANATH, JJ. ==========================** ## **M.A.C.A. No.868 OF 2012** **==========================** Dated this the 9[th] day of June, 2016 ## **JUDGMENT** ## _Jyothindranath, J._ This appeal is preferred against the award dated 14.10.2011 in O.P.(MV).No.1674 of 2010 on the files of the Motor Accidents Claims Tribunal, Ernakulam. Appellants are the claimants. 2.The facts, relevant for consideration of this appeal, are as follows:- A motor vehicle accident occurred on 28.8.2010 at PoothottaTripunithura Road. In that accident, Manoj, who is the son of the first claimant/appellant herein, sustained fatal injuries and succumbed to the injuries. Deceased was a bachelor. The parents of the deceased Manoj as well as the elder brother of the deceased filed the claim **M.A.C.A.868/2012** 2 petition. As per the claim petition, the deceased was aged only 26 years and was a coolie, by profession. The claim of the petitioners is that the deceased was earning more than `6,000/- and that, the petitioners were depending upon him. The claim petition was disposed by the Tribunal stating that the claimants No.1 and 2 are entitled for a total compensation of `1,90,410/-. Aggrieved by the said quantum of compensation, this appeal preferred. 3.When the appeal came up for hearing, the learned counsel for the appellants submitted before us that the Tribunal erred in taking the multiplicand as well as the multiplier, for calculation of dependency. It is the submission that even though the age of the deceased was in between 26 and 30 years, the multiplier was taken as 5. It is also the submission that even in an accident that took place in 2004 wherein the claimant was a coolie, the Apex Court took a monthly income of `4500/-. The said case is reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** It is also brought to our notice that towards **M.A.C.A.868/2012** 3 funeral expenses, only a sum of `7,500/- is granted. It is against the dictum laid down in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** 4.We heard the learned counsel for the insurance company. The learned counsel submitted before us that no evidence produced before the Tribunal to show that the deceased was working as a coolie. It is also submitted that the Tribunal awarded just compensation. As such, an interference by this Court is not warranted. 5.After hearing the learned counsel on both sides and also after considering the compensation awarded on various heads, we feel that this is a case where an interference is warranted. 6.Appellants No.1 and 2 are the parents whereas 3[rd] appellant is the brother of the deceased. The Tribunal considered the 3[rd] appellant as not a dependent. 3[rd] appellant is only the brother of the deceased who is aged 35 years. He is an elder brother of the deceased. There is **M.A.C.A.868/2012** 4 nothing wrong committed by the Tribunal on treating him as not depending on the deceased. Hence, the appellants No.1 and 2 alone are entitled for compensation. It is a fact that the deceased was aged in between 26 and 30 years as evident from ID card as well as post mortem certificate and inquest report, which were marked as Exts.A4 and A5, respectively. After going through the inquest report, it can be seen that the deceased was working in a plastic company. Going by the dictum laid down in **Ramachandrappa'** s case, it can be seen that a coolie was considered having an income of `4500/-, as back as in 2004. In this case, inquest report reveals that the deceased was working in a plastic company. Any way, in a better position related to a coolie. Thus, considering all these aspects, we feel that it will only be just and proper to consider a sum of `5,000/- as monthly income of the deceased, for calculation purpose. Surely, considering the nature of the occupation and considering the spirit of the dictum laid down in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** and **Rajesh** 's case (supra), we are inclined to consider 30% increase for the prospects in life. Thus, an income of `6,500/- **M.A.C.A.868/2012** 5 is considered, for calculation purpose. Thus, after deducting 50% towards personal expenses, the amount available towards his annual income for calculation purpose will be `39,000/-. 50% is deducted as he was a bachelor. The multiplier available as per the dictum laid down in **Sarla Verma's** case (supra) in the case of age group of 2630 years is 17. Then, the amount available towards dependency will be `6,63,000/-. Surely, an amount of `1,20,000/- is seen awarded by the Tribunal. Thus, the appellants will be entitled for an additional sum of `5,43,000/- on this head. Apart from the same, the appellants are also entitled for a sum of `17,500/- towards funeral expenses as only a sum of `7,500/-is seen awarded on this head. Thus, the appellants are entitled for a total additional compensation of `5,60,500/- over and above the compensation already awarded which will bear 8% interest from the date of the petition till realisation. The insurance company is directed to pay the said amount within two months of the date of receipt of a copy of this judgment. Failure will entail 9% interest on the amount from the date of the petition till realisation. This amount shall be shared equally **M.A.C.A.868/2012** 6 in between appellants Nos.1 and 2. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** ## **K. P. JYOTHINDRANATH (JUDGE)** ## **spc/** The sentence “ **This amount shall be shared equally in between appellant Nos. 1 and 2** ” occurring in the last portion of the judgment dated 09/06/2016 in M.A.C.A No. 868/2012 is omitted and the sentence “ **This amount shall be shared in the ratio 2/3 : 1/3 in between appellant Nos. 2 and 3** ” is inserted as per order dated 18/07/2018 in I.A No. 1994/2017 in M.A.C.A No.868/2012. **Sd/-** **Registrar (Judicial)** **M.A.C.A.868/2012** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.868/2012** 8