High Court of KeralaDivision Bench2013-12-19Appeal partly allowed; modified award with enha...

K.K. Nalinkshan; Radha Nalinkshan; Unnikaladhar an; K.N. Sudarsanan; Surjith. K.N. v. M.M. Abdul Kareem; Rajesh C. John (deleted) and United India Insurance Co. Ltd.

Case / Petition Number:MACA.No. 1312 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan, J.
K. Ramakrishnan, J.
Judgment Date: 2013-12-19
Court Decision / Holding: Appeal disposed of; the Tribunal’s award is modified. Notional monthly income remains Rs 3,000; number of dependants restricted to parents; multiplier increased to 17 (per Sarla Verma and Amrit Bhanu Shali); funeral expenses increased to Rs 10,000; loss of estate to Rs 10,000; loss of love and affection to Rs 15,000. The total enhanced compensation amounts to Rs 2,06,000 over the tribunal’s award (making the aggregate award Rs 3,61,500). The 3rd respondent insurer is directed to deposit the enhanced amount within two months from the date of this judgment, with interest at 9% per annum from the date of the petition to payment.
Final Disposition: Appeal partly allowed; modified award with enhanced compensation and deposit directions.

Parties to the Case

Appellants / Petitioners

K.K. Nalinkshan
Radha Nalinkshan
Unnikaladhar an
K.N. Sudarsanan
Surjith. K.N.

Respondents

M.M. Abdul Kareem
The United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• P.V. Baby
• A.N. Santosh

Counsels for Respondents

• P.V. Jyothi Prasad

Case Synopsis & Summary

This MACA arises from an MACT Ernakulam claim filed by the parents and elder brothers of the deceased, K.N. Sudheer, who died in a road accident caused by a vehicle owned and driven by respondents. The MACT awarded Rs 1,55,500 across heads including loss of dependency (Rs 1,26,000), transportation (Rs 2,000), funeral expenses (Rs 3,000), pain and suffering (Rs 10,000), medical expenses (Rs 8,500) and loss of estate (Rs 6,000). The appellants challenged the quantum, contending the deceased earned about Rs 5,000 per month as a painter and that the tribunal undercalculated income and misapplied deductions, particularly deducting one-third for personal expenses and using a low multiplier. They argued that, according to Sarla Verma v. Delhi Transport Corporation and Amrit Bhanu Shali v. National Insurance Co. Ltd., the multiplier should be 17 and not 7, given age. They also pressed for higher awards for funeral expenses, loss of love and affection, and loss of estate. The insurer argued to sustain the award. The High Court found no evidence of income beyond notional Rs 3,000, held the elder brothers not dependants, and, applying the cited precedents, raised the multiplier to 17, increased funeral and estate heads, and awarded Rs 15,000 for loss of love and affection, resulting in an additional Rs 2,06,000. The appeal is disposed of with a modified award.

Legal Doctrines & Maxims

Sarla Verma v. Delhi Transport Corporation, 2010 (2) KLT 802 (SC)
Amrit Bhanu Shali v. National Insurance Co. Ltd., 2012 ACJ 2002

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the deceased, a painter by occupation, earned about Rs 5,000 per month, but the Tribunal fixed a mere Rs 3,000 as notional income. They argue the deduction for personal expenses should reflect that five dependants existed, not one-third as adopted, and that the appropriate multiplier given the age (28 years) should be 17, following Sarla Verma v. Delhi Transport Corporation and Amrit Bhanu Shali v. National Insurance Co. Ltd. They criticise the Tribunal for under-compensation under heads like funeral expenses and loss of estate, and urge compensation for loss of love and affection. They rely on established motor-accident jurisprudence to recalibrate dependency, income, deductions, and multiplier, seeking a higher overall award.

Contentions of Respondents

The respondents (insurance company) contend the Tribunal’s quantum was reasonable and fully supported by evidence on record. They resist increasing compensation beyond what was awarded, arguing that the deceased’s income was not proven and the dependency calculation should reflect the evidence on file, with the existing heads adequately compensating the family. They submit that the insurer should not be saddled with an inflated liability without clear justification.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	Used to apply the 17-year multiplier and 50% deduction for personal expenses, guiding the quantum calculation.
Amrit Bhanu Shali v. National Insurance Co. Ltd.	2012 ACJ 2002	Positive	Cited to support selection of multiplier 17 based on the deceased’s age and related principles.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935** ## **MACA.No. 1312 of 2009 ( )** **-------------------------OPMV. 2539/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM. ..........** ## **APPELLANTS/PETITIONERS IN OP(MV):** **------------------------------------------------------------** **1. K.K.NALINAKSHAN, S/O.KUMARAN, KATTUMPURATH HOUSE, THEVARA COLONY, THEVARA P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **2. RADHA NALINAKSHAN, W/O.K.K. NALINAKSHAN, KATTUMPURATH HOUSE, THEVARA COLONY, THEVARA P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **3. UNNIKALADHARAN, S/O.K.K. NALINAKSHAN, KATTUMPURATH HOUSE, THEVARA COLONY, THEVARA P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **4. K.N. SUDARSANAN, S/O.K.K. NALINAKSHAN, KATTUMPURATH HOUSE, THEVARA COLONY, THEVARA P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **5. SURJITH. K.N., S/O.K.K. NALINAKSHAN, KATTUMPURATH HOUSE, THEVARA COLONY, THEVARA P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** - **BY ADVS.SRI.P.V.BABY, SRI.A.N.SANTHOSH.** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **---------------------------------------------------------------** **1. M.M. ABDUL KAREEM, S/O.MOHAMMED, MADATHUPADIKKAL HOUSE, CHERANALLORE, KOCHI-34.** ## **MACA.No. 1312 of 2009** ## ***2. RAJESH C.JOHN, S/O.JOHN,** ## **CHERUPURATH HOUSE, PULLUVAZHICHAL BHAGOM VADAKKUMBHAGOM, KOTTAPPADY (VIA), KOTHAMANGALAM. (DELETED)** **3. THE UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, COCHIN-11.** - **R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 28/11/2013 IN I.A. NO.3174/2013 IN MACA NO.1312/2009.** **R3 BY ADV. SRI.P.V.JYOTHI PRASAD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## S. SIRI JAGAN & K. RAMAKRISHNAN, JJ. -----------------------------------------------------------------M.A.C.A. No.1312 of 2009 --------------------------------------------------------------------Dated this the 19[th] day of December, 2013 ## J U D G M E N T ## S.Siri Jagan, J Parents and elder brothers of deceased K.N.Sudheer, who died in an accident caused by the negligent driving of a vehicle, owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent are the appellants herein (the 2[nd] respondent was deleted from the party array at the risk of the appellants, as per order dated 28.11.2013 in I.A.No.3174/2013). The appellants filed O.P.(M.V.).No.2539/2002, before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of Sudheer. The tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: M.A.C.A. No.1312 of 2009 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of dependency|126000| |2|Transportation|2000| |3|Funeral expenses|3000| |4|Pain and suffering|10000| |5|Medical expenses|8500| |6|Loss of estate|6000| ||Total|155500| Dissatisfied with the quantum of compensation awarded by the tribunal, the appellants have filed this appeal, seeking enhanced compensation. 2. The first contention raised by the appellants is that, the deceased was earning monthly income of 5,000/- doing painting works, despite which,₹ the tribunal arbitrarily fixed the notional monthly income of the deceased only as 3,000/-. It is further submitted₹ that, the tribunal has firstly deducted 1/3[rd] from the income, for personal expenses of the deceased and thereafter, again reduced the annual dependency to ₹ 18,000/-, which is on the lower side. According to the appellants, since the appellants were five in number only M.A.C.A. No.1312 of 2009 3 1/4[th] could have been deducted for personal expenses of the deceased. It is the further contention of the appellants that, the deceased having been only 28 years at the time of his death, going by the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** read with the decision in **2012 ACJ 2002 Amrit Bhanu Shali and others v. National Insurance Co. Ltd., and others** , the multiplier to be adopted is 17, whereas, the tribunal has adopted only 7. It is also submitted that the compensation awarded under the heads 'funeral expenses' and 'loss of estate' are also on the lower side. They also find fault with the award of the tribunal, on the ground that no amount has been awarded towards loss of love and affection of the appellants. 3. We have heard the learned counsel for the insurance company, who would argue to sustain the award. M.A.C.A. No.1312 of 2009 4 4. We have considered the rival contentions in detail. 5. The accident was on 04.09.2002, the appellant did not adduce any evidence whatsoever to prove the avocation or income of the deceased. Considering the above circumstances, we do not find any infirmity in the tribunal, fixing the notional monthly income of the deceased as 3,000/-. Out of the five₹ appellants, appellants 3 to 5 are elder brothers of the deceased aged 34 years, 32 years and 30 years respectively. They cannot be considered as dependants of the deceased. If they are excluded from the array of dependants, then only the parents are the dependants. The deceased was a bachelor. Therefore, going by the decision in Sarla Verma's case (supra), 50% has to be deducted from the income for personal expenses of the deceased for calculating loss of dependency. But as rightly pointed out by the counsel for the appellants, M.A.C.A. No.1312 of 2009 5 going by the decisions in Sarla Verma's case (supra) and Amrit Bhanu Shali's case (supra), the multiplier has to be selected on the basis of the age of the deceased, in which case the same should be 17 not 7. If the compensation for loss of dependency is calculated on the basis of the above inputs, the same would be ₹ 3,06,000/(3,000x12x17x1/2), instead of 1,26,000/- awarded by the₹ tribunal. The difference would be 1,80,000/-. Since, for₹ funeral expenses, the amount of 3,000/- awarded by the₹ tribunal appears to be low, we enhance it to 10,000/-.₹ Towards loss of estate, only 6,000/- has been awarded,₹ we enhance it to 10,000/-. No amount have been₹ awarded for loss of love and affection of the appellants. We fix the compensation under this head as 15,000/-.₹ We are not inclined to enhance compensation under any of the other heads. Resultantly, the appellants would be entitled to additional compensation of 2,06,000/-, over₹ and above what has been awarded by the tribunal. This M.A.C.A. No.1312 of 2009 6 amount would carry interest at the rate of 9% per annum, from the date of the claim petition, till date of payment. The 3[rd] respondent insurance company is directed to deposit this amount also within two months. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss