Karthikeyan and others v. Sebastian and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937 MACA.No. 949 of 2013 () -----------------------AGAINST THE AWARD IN OP(MV) NO.315/2010 of I ADDL.D.C. & ADDL. MACT, KOLLAM DATED 13.04.2012 APPELLANT(S)/PETITIONERS: ------------------------------------------------ 1. KARTHIKEYAN, AGED 51 YEARS S/O.SUBRAMANYAN, KANEESH BHAVANAM, PUTHENTHURA P.O NEENDAKARA, KOLLAM. 2. NIRMALA, AGED 48 YEARS, W/O.KARTHIKEYAN, KANEESH BHAVANAM PUTHENTHURA P.O., NEENDAKARA, KOLLAM. 3. KANEESH, AGED 27 YEARS, S/O.KARTHIKEYAN, KANEESH BHAVANAM PUTHENTHURA P.O., NEENDAKARA, KOLLAM. 4. KARTHIKA, AGED 22 YEARS, D/O.KARTHIKEYAN, KANEESH BHAVANAM PUTHENTHURA P.O., NEENDAKARA, KOLLAM. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. SEBASTIAN S/O.STANLY, NADUVIL VEEDU, KARITHURA MURI CHAVARA VILLAGE, CHAVARA P.O., KOLLAM - 691 583. 2. SOLOMON, AGED 31 YEARS, S/O.STANLY, NADUVIL VEEDU, KARITHURA MURI, CHAVARA VILLAGE, CHAVARA P.O., KOLLAM - 691 583. 3. THE MANAGER, NATIONAL INSURANCE CO.LTD., PARAMESWHARAN PILLAI BHAVAN, HOSPITAL ROAD KOLLAM - 691 001 R3 BY ADV.M.A.GEORGE (NO MEMO) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: bka/- MACA.No. 949 of 2013 () ---------------------------------- ## APPENDIX ## APPELLANT'(S) EXHIBITS: ANNEXURE-A COPY OF MEDICAL CERTIFICATE DATED 22.03.2013 ISSUED TO THE 2ND RESPONDENT. RESPONDENT'(S) EXHIBITS: NIL //TRUE COPY// PA TO JUDGE bka/- ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------M.A.C.A. No. 949 of 2013 -------------------------------------------------Dated this the 8[th] day of February, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. Inadequacy of compensation awarded by the Tribunal in respect of the sad demise of a youth aged 21 years in a road traffic accident occurred on 11.10.2009, after suffering nearly five days of ordeal and trauma, is the subject matter of this appeal. 2. Appellants are the claimants/legal representatives of the deceased Nimeesh. The claim petition was filed before the Tribunal in respect of the death of the son of appellants 1 & 2 and the sibling of other appellants. On 11.10.2009, when the deceased was standing on the side of the road, he was knocked down by a motorcycle, bearing Reg.No.KL-23/B-4196, owned, driven and insured by respondents 1 to 3 before the Tribunal. Immediately, he was taken to the hospital. Despite the M.A.C.A. No. 949 of 2013 **==> picture [20 x 8] intentionally omitted <==** treatment availed, his life could not be saved and he bid farewell to the world on 16.10.2009, which led to the claim petition filed before the Tribunal, seeking compensation. 3. The matter was contested only by the 3[rd] respondent insurer and the respondents 1 & 2 were set ex-parte. The contest was mainly on general grounds with reference to quantum and negligence. No statutory ground of defence as to violation of any policy condition was pointed out. No oral evidence was adduced from either side. The documents produced by the claimants as Exts.A1 to A14 alone formed the evidence available before the Tribunal. Based on the materials on record, the Tribunal arrived at a finding that the accident was caused solely because of the negligence on the part of the 2[nd] respondent, who was the driver of the motorcycle, and proceeded to fix the quantum of compensation accordingly. 4. As against the claim of the appellants that the deceased was getting a monthly income of around M.A.C.A. No. 949 of 2013 ..3.. ₹7,500/-, the Tribunal reckoned only a sum of 4,000/- as₹ the notional monthly income though a finding was rendered that the deceased was working as a 'Pump Attender' in the concerned petrol pump. Similarly, the multiplier adopted was based on the age of the parents, fixing the same as 13. Compensation under different heads, fixing a total sum of 4,69,000/-, was directed to₹ be satisfied with interest @ 7.5% per annum from the date of the petition. This is stated as much on the lower side and hence, this appeal. 5. Heard the learned counsel for the appellants and learned counsel for the insurance company. 6. The amounts awarded by the Tribunal under different heads have been discussed in para 9 of the award to the following effect; Transportation to hospital ₹3,000/Cost of medicines & treatment expenses ₹5,000/Funeral expenses ₹5,000/Loss of love and affection ₹25,000/Loss of estate ₹5,000/Pain and suffering ₹10,000/Loss of dependency ₹4,16,000/Total ₹4,69,000/- 7. The avocation of the deceased was sought to be M.A.C.A. No. 949 of 2013 ..4.. proved by producing Ext.A8 certificate, showing that the deceased was a Pump Attender and that he had undergone a Training Programme in such capacity. A copy of the said document has been placed before this Court for consideration. There is a positive finding by the Tribunal in paragraph 7 of the Award based on the materials on record, including Ext.A8, that the deceased was working as a 'Pump Attender' and that he had participated in a Training Programme. In the said circumstance, this Court finds that the notional income fixed by the Tribunal as 4,000/- per month requires₹ modification and we enhance the same by 50%, fixing the same as ₹6,000/per month to work out the compensation. 8. It is settled law that the multiplier has to be fixed based on the age of the deceased and not on the age of the parents/claimants. This being the position, since the deceased was aged 21 years, the proper multiplier to be adopted is '18' and not '13'. The amount of compensation payable under loss of dependency requires M.A.C.A. No. 949 of 2013 **==> picture [20 x 8] intentionally omitted <==** to be refixed. The deceased being a bachelor, only 50% could be reckoned as contribution to the family, to work out loss of dependency. Thus, the amount payable under this head comes to 6,48,000/- [6000 x 12 x 50/100 x 18].₹ After deducting the amount awarded by the Tribunal, the balance payable comes to **₹2,32,000/-** . The Tribunal has awarded only a sum of 5,000/- towards funeral expenses.₹ By virtue of the law declared by the Apex Court as per the decision in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 SC], it should be 25,000/- unless higher extent of expense is₹ established in this regard. As such, we award a further sum of **₹20,000/-** towards funeral expenses. The Tribunal has awarded only a sum of 25,000/- towards loss of love₹ and affection. We place reliance on the very same decision to fix the compensation towards loss of love and affection as 1,00,000/- and hence, a sum of ₹ **₹75,000/-** has to be satisfied as the balance compensation payable. Though the date of accident was on 11.10.2009, the death was occurred after five days, i.e. on 16.10.2009; and as such, the deceased would have suffered excruciating pain M.A.C.A. No. 949 of 2013 **==> picture [20 x 8] intentionally omitted <==** and sufferings. We find it appropriate to grant a further sum of **₹10,000/-** towards pain and suffering. Thus, the total additional compensation payable comes to **₹3,37,000/-** . Since the policy is admitted, we direct the insurance company to satisfy the additional compensation @ 9% per annum from the date of petition except the period of delay in filing the appeal (290 days), by virtue of the order passed on 21.01.2016 as a condition to have the delay condoned. It shall be effected within one month from the date of receipt of copy of this judgment. The appeal is allowed accordingly. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge