JAMEELA and five others v. BABY CHANDY and others and UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939 MACA.No. 745 of 2014 () -----------------------OPMV 39/2011 of ADL.D.C. & MACT,THODUPUZHA ## APPELLANTS/CLAIMANTS BEFORE TRIBUNAL:-: ----------------------------------------------------------------- 1. JAMEELA, W/O.JAMAL MUHAMMED, PUTHUPARAMBIL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA. 2. ILLIYAS, S/O.JAMAL MUHAMMED, PUTHUPARAMBIL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA. 3. SEENATH, D/O.JAMAL MUHAMMED, PUTHUPARAMBIL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA. 4. SALEENA, D/O.JAMAL MUHAMMED, PUTHUPARAMBIL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA. 5. ASEENA, D/O.JAMAL MUHAMMED, PUTHUPARAMBIL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA. BY ADVS.SRI.S.SACHITHANANDA PAI SMT.K.S.JEENA REETHA ## RESPONDENTS/RESPONDENTS IN THE TRIBUNAL:-: ---------------------------------------------------------------------------- 1. BABY CHANDY, VATHALLUR HOUSE, NATHUKALLUKARA, UPPUKANDOM P.O., KATTAPPANA. 2. JAYAN SUKUMARAN, PUTHENPURACKAL HOUSE, KATTAPPANA P.O., IDUKKI DISTRICT. 3. UNIVERSAL SOMPO GENERAL INSURANCE CO.LTD., 2ND FLOOR, CENTRAL ARCADE, AZAD ROAD NORTH END, KALOOR, KOCHI. R3 BY ADV. DR.ELIZABETH VARKEY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.745 of 2014 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of September 2017 ## JUDGMENT ## **C.T.Ravikumar J.,** This appeal is directed against the judgment and award dated 17.8.2013 in O.P.(M.V.) No.39 of 2011 passed by the Motor Accidents Claims Tribunal, Thodupuzha. 2. The mother and siblings of one Thampi, who lost his life in a motor vehicle accident preferred the above said claim petition under Section 166 of the Motor Vehicles Act seeking a total compensation of Rs.7,00,000/- for his death in a motor vehicle accident. The accident in which he lost his life occurred on 23.11.2010 at about 7.40 p.m. He was M.A.C.A.745/2014 : 2 : then a foot passenger. He was knocked down by the tipper lorry bearing Reg.No.KL-6D/6990 driven by the first respondent. On sustaining severe injuries, he was immediately taken to St.John's hospital, Katappana and from where he was referred to Medical College Hospital, Kottayam. While undergoing treatment, he succumbed to the injuries on 4.12.2010. It is in the said circumstances, that the said claim petition was filed. As per the impugned award, the Tribunal granted an amount of Rs.3,91,200/- as compensation with interest at the rate of 8.5% per annum from the date of petition till realisation. The appellants seek for enhancement of the quantum of compensation. 3. The evidence before the Tribunal consists only of the documentary evidence on the side of the appellants, ## M.A.C.A.745/2014 : 3 : viz., A1 to A6. It is after appreciating the rival contentions and evaluating the evidence on record that the impugned award was passed, as mentioned above. 4. The learned counsel appearing for the appellants submits that the quantum of compensation is too inadequate. It is submitted that though the loss of life is not ransomable, it is only proper to grant just compensation for the loss of life of the member of a family. Deceased Thampy was the son of the first appellant and the brother of other appellants. He was then aged only 36 years. In the claim petition it is averred that then he was a casual labour and was earning Rs.4,500/- per month. Evidently, the Tribunal accepted the claim of the monthly income and at the same time, applied the multiplier with reference to M.A.C.A.745/2014 : 4 : the age of the first appellant, i.e.,the mother of the deceased, in the absence of any document to prove the exact age of the deceased. Since the deceased was a bachelor, 50% of the amount fixed as his income was deducted towards his personal and living expenses. The said deduction from the income is perfectly in tune with the dictum laid down by the Apex court in **Sarla Verma v. Delhi Transport Corporation** [2010(2) KLT 802 (SC)]. At the same time, the learned counsel submitted that there was no justification in applying the multiplier with reference to the age of the mother of the deceased in a claim petition filed under Section 166 of the Motor Vehicles Act. There can be no two views on that point. The view of the Division Bench of two Judges of the M.A.C.A.745/2014 : 5 : Hon'ble Apex Court in the decision in **Sarla Verma** 's case (supra) got approval in three Judge Bench decision of theApex Court in a later decision in **Reshmakumari and another v. Madan Mohan and another [2013(9) SCC 65]** followed by another three Jude Bench in **Munna Lal Jain and another v. Vipin Kumar Sharma and others [** (2015 (6) SCC 347]. Going by the decisions referred (supra) in an application for compensation for accidental death involving a motor vehicle, filed under Section 166 of the Motor Vehicles Act, the multiplier has to be identified with reference to the age of the deceased. True that, no document was produced before the Tribunal by the appellants for proving the age of the deceased. But at the same time, it is evident from the impugned judgment itself M.A.C.A.745/2014 : 6 : that before the Tribunal copy of the postmortem report was marked as Ext.A5. Certainly, it must mention the probable age of the person on whom autopsy was conducted. Obviously, the Tribunal had not looked into the said document for such a purpose. But, in the light of the decisions referred (supra) it is evident that identification of proper 'multiplier' is absolutely essential for appropriate quantification of compensation for loss of dependency following the multiplicand - multiplier method. In this appeal, an extract of the admission register of the deceased was produced along with I.A.No.2571 of 2016 filed under Order XLI Rule 27 of C.P.C. to receive the same as additional evidence, in the appeal. When such a document which is sought to be produced as additional evidence M.A.C.A.745/2014 : 7 : under Order XLI Rule 27 of C.P.C., and in the opinion of the court, it is a document which is essential for the proper disposal of the appeal, there cannot be any legal impediment in receiving same into the file. In the circumstances, obtained in this case, we are of the firm opinion that it is essential for the proper disposal of this appeal. Hence, it is received into the file and marked as Ext.A7. It will reveal the date of birth of the deceased as 7.9.2015. It would thus, go to show that at the time of accident, the deceased had crossed the age of 35. In such circumstances, the multiplier acceptable is, the one applicable to the age group of '36 to 40', viz., '15'. Instead of 15, the Tribunal has applied the multiplier as 9, in this case and it was wrongly identified with reference to the age M.A.C.A.745/2014 : 8 : of the mother of the deceased, the first appellant. 5. As noticed hereinbefore, the Tribunal has virtually accepted the claim of the appellants, as regards the monthly income of the deceased and took it as Rs.4,500/-. In such circumstances, the appellants cannot have any further grievance with respect to the fixation of the monthly income by the Tribunal. At the same time, the learned counsel appearing for the appellant was justified in contending that the Tribunal ought to have made addition to the said income reckoning the future prospects of the deceased who lost his life at the age of 36 years. The learned counsel appearing for the third respondent submits that the appellants cannot, as a matter of fact claim for such addition, especially when they failed to adduce cogent M.A.C.A.745/2014 : 9 : evidence regarding the occupation and income of the deceased. In this context, it is to be noted that the appellants claimed that the deceased was a labourer. Even if the deceased is treated as a manual worker or a person eeking his livelihood by engaging himself, in any kind of manual work, one cannot say that cost of living or price index would not have any reflection, by passage of time in his life, had he not met with the accident or outlived the impact of the injuries sustained in the accident. In such eventuality, he would have, certainly, been constrained to seek for enhanced rate of wages for his service to cope up with the demanding situations. It is also to be noted in the case of such manual workers there is no age of retirement and they could continue to work for themselves and the M.A.C.A.745/2014 **==> picture [26 x 9] intentionally omitted <==** family as long as they are hale and hearty. Taking into consideration of all such aspects, we are of the considered view that it is only just and proper to make an additional of 30% of the income fixed for calculation purpose. In short, for calculating compensation for loss of dependency, the monthly income has to be taken as Rs.5,850/-. We have already found that the multiplier applicable in this case as 15. Since the deceased was a bachelor, in the light of the decision in **Sarla Verma** 's case (supra), 50% of the income has to be deducted towards the personal and living expenses of the deceased, which he would have incurred had he been alive. In short, a reassessment of the compensation for loss of dependency has to be made by substituting the refixed monthly income and effecting 50% M.A.C.A.745/2014 **==> picture [25 x 9] intentionally omitted <==** deduction from it towards his personal and living expenses and also by applying the multiplier. On such reassessment, the amount payable under the said head will be Rs.5,26,500/-. The Tribunal has already granted an amount of Rs.2,43,000/-. After deducting the said amount, the appellants are entitled to get an amount of Rs.2,83,500/additionally towards compensation for loss of dependency. Since none of the respondents raised any objection regarding the entitlement of appellants 2 to 5 to dependency compensation and the Tribunal had also not gone into that issue, we do not propose to go into that matter. 6. Towards funeral expenses, the Tribunal has granted only an amount of Rs.15,000/- The learned counsel M.A.C.A.745/2014 **==> picture [26 x 9] intentionally omitted <==** appearing for the appellants has submitted that the appellants are certainly entitled to get the benefit of the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh** [2013(3) KLT 89(SC)]. Going by the above decision, in the absence of evidence of higher expenses, a minimum of Rs.25,000/- shall be granted towards funeral expenses. The accident involved in that case occurred in the year 2007 and the accident involved in the case on hand occurred in the year 2010. Hence, we are of the view that the appellants are entitled to get the benefit of the decision in **Rajesh** 's case (supra). Consequently, an amount of Rs.10,000/- is granted additionally towards funeral expenses. 7. Towards pain and suffering the Tribunal has M.A.C.A.745/2014 : 13 : granted an amount of Rs.15,000/-. It is a fact that on sustaining the injuries in the said accident on 23.11.2010, the deceased had to suffer excruciating pain for about 11 days. In such circumstances, we are inclined to grant an amount of Rs.10,000/- additionally under that head. Despite the persuasive arguments of the learned counsel, we do not find any reason to interfere with the fixation of compensation under any other heads. In other words, we are of the view that the appellants were adequately compensated under other heads. In the result, this appeal is allowed. An amount of Rs.3,03,500/- is granted as additional compensation. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till the date of M.A.C.A.745/2014 : 14 : realisation. In the absence of any dispute regarding the liability of the third respondent - Insurer to indemnify the first respondent, the insured owner of the offending vehicle, the third respondent Insurance Company is directed to deposit the additional compensation along with interest thereon, within a period of two months from the date of receipt of a copy of this judgment. There is no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/18.9.2017_ _// True Copy //_ _PA to Judge_