Joseph Philip C.J. & Mercy v. Judies, Nazeer & The New India Assurance Company

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE 4TH DAY OF JUNE 2013/14TH JYAISHTA 1935 MACA.No. 211 of 2009 ( ) ------------------------- (AGAINST THE AWARD IN OPMV 2809/2005 of M.A.C.T.,ERNAKULAM DATED 16-06-2008) APPELLANT(S)/PETITIONERS: ------------------------ 1. JOSEPH PHILIP.C.J, S/O. JOSEPH, CHARMKUNDATHIL HOUSE, NEEZHOOR, KOTTAYAM. 2. MERCY,W/O JOSEPH PHILIP, CHARMKUNDATHIL HOUSE, NEEZHOOR, KOTTAYAM. (APPELLANT NO.1 REPRESENTED BY POWER OF ATTORNEY HOLDER ALEXANDER JOSEPH, S/O. JOSEPH, AGED 59 YEARS, POWATHEL HOUSE, KAIPUZHA, KOTTAYAM). BY ADV. SRI.M.J.THOMAS RESPONDENT(S)/RESPONDENTS IN OP: ------------------------- 1. JUDIES, S/O. PETER, 42/1413, PALLIPARAMBIL HOUSE, CHULACKPARAMBU ROAD ERNAKULAM, KOCHI-31. 2. NAZEER, S/O. BAVAKUTTY, PALLIPARAMBIL HOUSE, SATELITE COLONY VAZHAKKALA VILLAGE, PADAMUGAL VIA, KAKKANAD. 3. THE NEW INDIA ASSURANCE COMPANY, 2ND FLOR, RAMAN CENTRE, VALANJAMBALAM COCHIN-16. R,R1 BY ADV. SRI.VIJU ABRAHAM R,R1 BY ADV. SRI.DOMINIC JOHNSON R,R3 BY ADV. SRI.KKM.SHERIF R,R3 BY ADV. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **S.SIRI JAGAN &K.RAMAKRISHNAN, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **MACA No. 211 OF 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of June, 2013 ## **J U D G M E N T** ## . **Siri Jagan,J** The appellants are the hapless parents of a 24 year old son by name Pavan. C.Philip, who died in a motor accident on 30/8/2004, caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. The appellants filed O.P.(MV)No. 2809/2005 before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of their only son. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: |various heads as follows:|| |---|---| |**_Head_**|**_Amount awarded_**| |Compensation for Loss of dependency|Rs.2,77,200/-| |Funeral & transportation expenses|Rs.6,000/-(Rs.3000 + 3000)| |Pain & Suffering|Rs.10,000/-| |Love and affection|Rs.15000/-| |Loss of estate|Rs.5000/-| |Total|Rs.3,13,200/-| **MACA No. 211 OF 2009** 2 Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal claiming enhanced compensation. The first contention of the appellants is that, although the appellants had produced documents to prove the employment of the deceased and his monthly income as Rs.15,000/-, the Tribunal had arbitrarily taken only Rs.3,500/- as the monthly income. According to the appellants, the loss of dependency should have been calculated on the basis of the monthly salary of the deceased as Rs.15,000/instead of Rs.3500/-. It is further contended that the deceased was 24 year old and the multiplier applicable for a 24 year old person is 18, whereas the Tribunal has taken only 11 as the multiplier. It is further submitted that since the deceased was the only son of the appellants, the compensation of Rs.15,000/- awarded by the Tribunal towards loss of love and affection is too low. A still further contention raised is to the effect that although the appellants have produced bills evidencing **MACA No. 211 OF 2009** 3 treatment expenses amounting to Rs.4811/- and no amount has been awarded as compensation under that head. The appellants seek enhancement under other heads also. 2. On the other hand, the learned standing counsel for the Insurance Company would contend that the appellants had not properly proved the income of the deceased. The documents relied on by the appellants are not acceptable in view of the fact that the same did not disclose the qualifications of the deceased convincingly. It is pointed out that for the purpose of calculating compensation for a son, the multiplier is to be fixed based on the age of the parents. In this case “11” is the appropriate multiplier taking into account the age of the parents, is the contention. The learned standing counsel would, therefore, argue for sustaining the compensation fixed by the Tribunal. 3. We have considered the rival contentions in detail. It is true that the appellants had produced **MACA No. 211 OF 2009** 4 certain documents to prove the monthly income of the deceased. The documents show that over a period of time the deceased was stated to be paid monthly salary by a private company at the rate of Rs.8,000/- to Rs.15,000/-. The appellants also examined the Managing Director of the employer company as well to prove the documents. From the evidence of PW2, we see that he was not really sure about the qualifications of the deceased. The documents produced did not inspire any confidence in us. No Degree Certificate of any kind has been produced by the appellants, though they claim that the deceased was a BBA Degree holder. The mark lists of BBA Degree show that the deceased did not pass the examination at all. A certificate showing computer qualification from a foreign country is also produced. That only shows that the deceased had undergone certain course in Computer Application. Although it is titled “Diploma”, the document does not appear to be a Diploma Certificate at all. **MACA No. 211 OF 2009** 5 4. Under these circumstances, based on the evidence adduced by the appellants, we are not inclined to fix the monthly salary of the deceased at Rs.15,000/- as claimed by the appellants. But, it appears that the deceased had some qualifications and the employer had reposed confidence in his professional abilities. Taking into account all these aspects, we are of the opinion that it would be safe to fix the monthly salary of the deceased at Rs.8000/- per month, particularly, in view of the fact that accident was on 30/8/2004. But, the multiplier to be adopted for the purpose of calculating the compensation for dependency should be based on the age of the parents, since they are older than the deceased. The deceased was 24 year old at the time of death and the mother is aged 51 years. For a 51 year old person, the multiplier to be adopted is 11 as per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 (SC) . Calculating thus, the compensation for loss of dependency due to the 6 ## **MACA No. 211 OF 2009** appellants would be Rs.5,28,000/- (8000x12x11/2). Since the deceased was a bachelor and the parents are the only claimants, as per the decision in Sarla Verma's case (cited supra), 50% has to be deducted for the personal expenses of the deceased. Consequently, under the head of loss of dependency the appellants would be entitled to additional compensation of Rs.2,50,800/- . 5. We are also satisfied that the compensation due for loss of love and affection should be Rs.20,000/-, instead of Rs.15,000/-. 6. The appellants had produced medical bills for Rs. 4811/-. Although the deceased died on the same day, the appellants had proved that they had spent money for treating him. Therefore, they are entitled to treatment expenses, which we fix at Rs.5,000/-. 7. The appellants would, therefore, be entitled to Rs.2,60,800/- as additional compensation over and above what has been awarded by the Tribunal. This amount would carry interest at the rate of 9% per annum **MACA No. 211 OF 2009** 7 from the date of the claim petition till the date of the payment. The 3[rd] respondent - Insurance Company is directed to deposit that amount also within two months. The award of the Tribunal is modified as above and the appeal is disposed of accordingly. **Sd/-** **S.SIRI JAGAN, JUDGE.** ## **Sd/-** **K.RAMAKRISHNAN JUDGE.** dpk. /True copy/ P.S to Judge.