Haridas, Rathi and Rohith v. K. Viswanathan, K.M. Padmaprasad and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 26TH DAY OF MAY 2017/5TH JYAISHTA, 1939** ## **MACA.No. 838 of 2012 ()** ## **-----------------------AGAINST THE AWARD IN OPMV 1376/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 17-02-2010** **----------** ## **APPELLANT(S)/APPELLANTS:** **-------------------------------------------** ## **1. HARIDAS** **S/O.CHANDRAN, AGED 38 YEARS, KAIPAKANCHERY HOUSE, CHERUTHURUTHY P.O., THRISSUR DISTRICT.** **2. RATHI, W/O.HARIDAS, KAIPAKANCHERY HOUSE, CHERUTHURUTHY P.O., THRISSUR DISTRICT.** **3. ROHITH,** - **S/O.HARIDAS, KAIPAKANCHERY HOUSE, CHERUTHURUTHY P.O., THRISSUR DISTRICT.** **BY ADVS.SRI.K.B.ARUNKUMAR SRI.RANJIT BABU** ## **RESPONDENT(S)/RESPONDENTS :** **-----------------------------------------------** ## **1. K. VISWANATHAN** **S/O.VISALAKSHI KAVILAMMA, KUNNATH HOUSE, NHANGATTIRI P.O., PATTAMBI VIA., PALAKKAD DISTRICT, 679 503 (DRIVER OF AUTORICKSHAW BEARING REG. NO. KL-9-B-2397).** ## **2. K.M.PADMAPRASAD,** **S/O.KRISHNANKUTTY, KIZHAKKETHIL HOUSE, PERUMUDIYOOR P.O., PALAKKAD DISTRICT, PIN- 679 506(OWNER OF AUTORICKSHAW BEARING REG.NO.KL-9-B-2397).** ## **3. UNITED INDIA INSURANCE CO. LTD.,** **FAISAL BUILDING, MAIN ROAD, OTTAPPALAM, PALAKKAD DISTRICT, PIN-679101, (INSURER OF AUTORICKSHAW BEARING REG.NO.KL-9-B-2397).** **R3 BY ADV. SRI.PMM.NAJEEB KHAN SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. ----------------------------------------------M.A.C.A.No.838 of 2012 ----------------------------------------------Dated this the 26[th] day of May, 2017** ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** . The appellants are the claimants in O.P.(MV)No.1376 of 2006 on the file of the Motor Accident Claims Tribunal, Ottapalam, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Nandana, a minor aged 3 years, daughter of the 1[st] and 2[nd] appellants and sister of the 3[rd] appellant, who died in a motor accident which occurred on 5.9.2006, involving an autorickshaw bearing registration No.KL-9/B-2397, driven and owned by the 1[st] and 2[nd] respondents and insured with the 3[rd] respondent. While the deceased was travelling in the said autorikshaw along with others, it capsized due to the rash and negligent driving of the 1[st] respondent driver, and they sustained severe injuries. The deceased succumbed to the injuries on the same day itself. Claiming a total compensation of 10,00,000/-under different₹ heads, claim petition was filed before the Tribunal . M.A.C.A.838/12 :-2-: 2. Before the Tribunal, the claim petition was tried along with connected matters. On the side of the claimants Pws.1 and 2 were examined and Exts.A1 to A26 were marked. Exts.B1 to B5 were marked from the side of the respondents. The respondents have not chosen to adduce any oral evidence. 3. After considering the evidence and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw 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 2[nd] respondent owner. The Tribunal awarded a total compensation of ₹1,00,800/(₹1,00,000/- towards dependency and ₹800/towards medical expenses) and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 7% per annum and 1,500/- as cost.₹ 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants are before this Court in this appeal. 5. We heard the arguments of the learned counsel for the M.A.C.A.838/12 :-3-: appellants/claimants and also the learned counsel for the 3[rd] respondent/insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal. 7. In **Rajesh v. Rajbir Singh (2013 (9) SCC 54)** the Apex Court held that the Tribunal/Court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation. 8. The Apex Court in **Kishan Gopal and another v. Lala and others [(2014) 1 SCC 244]** notionally fixed the annual income of the deceased aged 10 years at 30,000/-, who₹ died in a motor accident accident occurred on 19.7.1992. In the instant case, the accident is of the year 2006 and at the time of accident the deceased was aged 3 years. 9. In **New India Assurance Company Limited v. Vijayan (2016 (1) KLT 704)** a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a member, held that deduction in the case of children upto the age of 15 years M.A.C.A.838/12 :-4-: can only be 1/3[rd] towards personal expenses, treating the balance 2/3[rd] as the probable contribution. Para.15 of the said judgment reads thus; “15. Next question to be considered is whether the deduction towards the probable personal expenses should have been 1/3[rd] or 50% as contended by the appellant/ insurance company. As mentioned already, after filling up the lacuna in Sarla Verma’s case with regard to the multiplier for children upto 15 years, the three member Bench of the Apex Court held in Reshma Kumari’s case that the multiplier shall be '15' in such cases and then the compensation should be worked out as given in the 2[nd] schedule. Coming to the 2[nd] schedule, only 1/3[rd] can be deducted in such cases and as such we approve the course pursued by the Tribunal in deducting only 1/3[rd] towards the personal expenses and treating the balance 2/3[rd] as the probable contribution. On re-working the compensation for the loss of death, it comes to 3000x12x15x2/3[rd] =3.6 lakhs; whereas the Tribunal has awarded a sum of ₹4.8 lakhs.” 10. In Vijayan's case (supra) this Court relied on the judgment of the Apex Court in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** wherein it was held that, in cases where the age of the victim happens to be upto 15 years, irrespective of Section 163A or Section 166 of the Motor Vehicle M.A.C.A.838/12 :-5-: Act under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma' case [(2009) 6 SCC 121] should be followed. This is to ensure that claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the said Act. 11. In the instant case, adopting the above method, the compensation payable under the head loss of expectation/ dependency has to to reworked taking 30,000/- as the annual₹ income, deducting 1/3[rd] towards personal expenses and applying the multiplier of 15. Based on such assessment, the compensation payable under the head loss of expectation/ dependency is reworked as 3,00,000/- (30000x15x 2/3). After₹ deducting 1,00,000/- already awarded by the Tribunal, the₹ appellants/claimants will be entitled for an additional compensation of **₹2,00,000/-** under this head. 12. The Tribunal awarded no compensation under the head loss of love and affection. In **Rajesh's case (supra)** the Apex Court awarded a sum of ₹1,00,000/- under the head loss of M.A.C.A.838/12 :-6-: love and affection. In the said case, the accident was of the year 2007 the deceased was aged 33 years and he was survived by three minor children. In the instant case, the accident is of the year 2006 and the deceased is survived by her parents aged 32 and 24 years respectively and her brother aged 6 years. Striking a balance, we deem it appropriate to award a sum of **₹75,000/-** under the head loss of love and affection. 13. The Tribunal awarded no compensation under the head funeral expenses. In **Rajesh's case (supra)** a Three-Judge Bench of the Apex Court held as follows; "The head 'funeral expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, it will be just, fair and equitable, under the head of 'funeral expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of ₹25,000/-." In the said case the accident was of the year 2007. In the instant case the accident is of the year 2006. M.A.C.A.838/12 :-7-: Striking a balance, we deem it appropriate to award a sum of **₹20,000/-** under the head of funeral expenses. 14. The Tribunal awarded no compensation under the head pain and suffering. In **Jyni v. Raphel P.T. and others (2016 (2) KHC 870** ) a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a member, held that death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of 5,000/- to 15,000/- could be awarded under the₹ ₹ head pain and suffering in such cases. In the instant case, the deceased succumbed to injuries on the date of accident itself. M.A.C.A.838/12 :-8-: Therefore, following the principle laid down in the decision referred to supra, we deem it appropriate to award a sum of **₹5,000/-** under the head of pain and suffering. 15. The Tribunal awarded no compensation under the head loss of estate. We deem it appropriate to award a conventional amount of **₹5,000/-** under the head loss of estate, which would represent just and reasonable compensation under the said head. 16. In the result, the appellants/claimants are entitled for an additional compensation of **₹3,05,000/-** (2,00,000+75,000+ 20,000+5,000+5,000) as additional compensation in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding the period of delay of 717 days in filing this appeal, which was condoned by the order of this Court dated 29.5.2012 in C.M.A.No.1053 of 2012 subject to the condition that, in case this appeal is allowed, the enhanced compensation will not carry any interest during the period of delay of 717 days. The appeal is disposed of as above. No order as to costs. 17. Since the insurance coverage of the vehicle is not in M.A.C.A.838/12 :-9-: dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. All pending interlocutory applications in this appeal are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/27.5.17 //True copy// P.A.to Judge