Krishnan and others v. T. Malathi, Santhosh and The New India Assurance Company Limited

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938 MACA.No. 1407 of 2012 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO413/2005 of I ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 31-03-2011 ## /APPELLANTS / PETITIONERS:- --------------------------------- 1. KRISHNAN, S/O.KOMBI, - AGED 62 YEARS, RESIDING AT SARASWATHI NIVAS, PANDARAKALAM, KALLEKULANGARA, PALAKKAD. 2. KAMALAM, W/O.KRISHNAN, AGED 62 YEARS RESIDING AT SARASWATHI NIVAS, PANDARAKALAM, KALLEKULANGARA, PALAKKAD. 3. K.SARASWATHI, D/O.KRISHNAN, AGED 34 YEARS, RESIDING AT SARASWATHI NIVAS, PANDARAKALAM, KALLEKULANGARA, PALAKKAD. 4. K.BINOJ, S/O.KRISHNAN, AGED 31 YEARS, RESIDING AT SARASWATHI NIVAS, PANDARAKALAM, KALLEKULANGARA, PALAKKAD. BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA ## RESPONDENTS/RESPONDENTS:-: ---------------------------------- 1. T.MALATHI, W/O.RAJENDRAN, RESIDING AT 8/779A (8/917) NEW RAJ BHAVAN, AKATHETHARA, OLAVAKKODE, PALAKKAD DISTRICT - 678 002. 2. SANTHOSH, S/O.BHASKARAN, AGED 30 YEARS, RESIDING AT PANDARAKULAM, KALLEKULANGARA, PALAKKAD DISTRICT - 678 002. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, P.B.NO.43, PDC BANK, BUILDING H.P.O.ROAD, SULTHANPET, PALAKKAD - 678 043. R BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.1407 of 2012 -------------------------------Dated 16[th] August, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The legal heirs of deceased Vini Raj @ Binu Raj filed this appeal seeking enhancement of the quantum of compensation granted by the Additional Motor Accident Claims Tribunal, Palakkad in O.P.(M.V) No.413 of 2005. The said Vini Raj died in a motor vehicle accident occurred on 5.10.2004. On that day, while the deceased was riding as a pillion rider on a scooter bearing Reg.No.KL-09N/7689 belonging to the first respondent through Olavakode - Palakkad public road, the 2[nd] respondent who was riding the same suddenly applied its brake and as a result, the deceased fell down and sustained grievous injuries and later, succumbed to the injuries on the same day itself. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming an amount of 5,98,000/- as compensation for the death of the₹ aforesaid Vini Raj, by the appellants who are his parents and siblings. Before the Tribunal, no oral evidence was adduced by both sides and on the side of the respondents no documentary evidence was also M.A.C.A.No.1407/2012 2 adduced. On the side of the appellants Exts.A1 to A14 were got marked. The impugned award was passed by the Tribunal after considering the evidence on record and the rival contention, for a total compensation of 2,14,500/- with interest at the rate of 7.5% per₹ annum from the date of petition till realisation. 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the 3[rd] respondent. 3. It is submitted by the learned counsel on both sides that the accident, insurance coverage of the offending vehicle and the cause of the accident as the negligence on the part of the 2[nd] respondent are not in dispute. In short, the liability to indemnify the insured owner of the offending vehicle is not in dispute. The learned counsel for the appellants submitted that the Tribunal had ignored the specific averments taken up in the claim petition to the effect that the deceased was aged only 19 years and he was a Carpenter by profession and he was earning 6,000/- per month while fixing the monthly income of the₹ deceased. The learned counsel submitted that in such circumstances, the Tribunal was erred in fixing the monthly income as 2,500/-₹ notionally for calculation purpose. The learned counsel further M.A.C.A.No.1407/2012 3 submitted that the Tribunal has ignored the dictum laid down by the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ in fixing the multiplier for calculating the compensation towards `loss of dependency'. Instead of taking the multiplier with reference to the age of the deceased on the date of the accident the Tribunal took the multiplier with reference to the age of the mother of the deceased. That apart, it is contended that the Tribunal had granted only an amount of 3,000/- towards funeral expenses and₹ no amount whatsoever was granted towards `loss of love and affection'. 4. The learned counsel for the 3[rd] respondent submitted that the evidence on record would reveal that despite taking up a contention that the deceased was a Carpenter by profession and was earning ₹ 6,000/- per month the appellants had failed to establish the contentions taken up in the claim petition regarding the occupation and income by adducing evidence. It is submitted that in such circumstances, the Tribunal cannot be said to have committed an error in fixing the monthly income notionally. True that, the appellants have taken up a contention in the claim petition that the deceased was a Carpenter by profession and was earning 6,000/- per month. Apart₹ M.A.C.A.No.1407/2012 4 from producing Ext.A12 certificate issued by one Manikandan, under whom the deceased was allegedly working, the appellants have not established their contentions taken up in the claim petition with reference to the occupation and the income of the deceased. When that be the position, we do not find any reason to hold that the Tribunal has committed an error in fixing the monthly income notionally. But, at the same time, it is to be noted that the Tribunal fixed the monthly income in respect of the deceased who was aged only 19 years on the date of the death, at 2,500/-. The accident occurred on 5.10.2004.₹ In _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ the Hon'ble Apex Court fixed the monthly income of a coolie who met with an accident in 2004 at 4,500/- notionally for calculation purpose. Since₹ the accident in question had also taken place in the year 2004 we are of the view that the monthly income of the deceased can be taken as ₹ 4,500/-. Accordingly, it is fixed as such. At the same time, it is to be noted that on the date of death the deceased was aged only 19 years. True that, he was not a salaried person or he could not be considered as a self employed person or a person with fixed wages. But, at the same time, it is a fact that he was earning his livelihood by engaging himself in some skilled work and even in respect of such persons it M.A.C.A.No.1407/2012 5 cannot be said that by lapse of time the relevant factors such as cost of living, price index etc. would not have any impact by lapse of time. In other words, had he been alive he would have had or he could have had increased wages. The Tribunal has committed an error by not making an addition reckoning his future prospects especially taking note of the fact that he was aged only 19 years on the date of the death. We are of the view that an addition of 30% of the above income can be granted for the aforesaid purpose reckoning his future prospects. The deceased was, admittedly, a bachelor. In the light of the decision in **Sarla Verma's** case (supra) 50% of the income has to be deducted towards personal expenses. In such circumstances, on such addition and reduction, for calculation purpose his monthly income has to be taken as 2,925/-. Admittedly, in this case, the Tribunal adopted the₹ multiplier with reference to the age of the mother of the deceased. This is patently a mistake in the light of the dictum laid down by the Hon'ble Apex Court in **Sarla Verma's** case (supra) which was affirmed by the Apex Court in **Munna Lal Jain** v. **Vipin Kumar Sharma ((2015) 6 SCC 347).** There cannot be any doubt with respect to the position that in a case where claim petition has been filed for the death under Section 166 of the Motor Vehicles Act the multiplier has to be adopted with reference to the age of the deceased . Since the deceased was M.A.C.A.No.1407/2012 6 aged only 19 years, the multiplier applicable in this case is `18'. With the modified multiplier and the multiplicand the amount of compensation payable for loss of dependency has to be re-assessed and on such re-assessment the appellants would be entitled to get ₹ 6,31,800/-. But, the Tribunal has already granted 2,10,000/- under₹ that head. After deducting the said amount he appellants are entitled to get an amount of 4,21,800/- additionally under that head.₹ Towards `funeral expenses' the Tribunal has granted only an amount of ₹ 3,000/-. In the light of the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh (2013(3) KLT 89(SC))** in the absence of evidence of higher expense a minimum of 25,000/- should be granted₹ towards funeral expenses. In the said circumstances, the appellants are entitled to get an amount of 22,000/- additionally under that₹ head. Towards `pain and suffering' and also towards `loss of love and affection' though 25,000/- and 1,00,000/- respectively were claimed₹ ₹ the Tribunal had not granted any amount under those heads. True that, Vini Raj died on the same day en route to the hospital. Taking note of the injuries sustained by him to which he succumbed we are of the view that he must have suffered excruciating pain for some time and therefore, an amount of 10,000/- can be granted under the head₹ `pain and suffering'. It is awarded. The claimants are the parents and M.A.C.A.No.1407/2012 7 siblings of deceased Vini Raj. In such circumstances, we are of the view that appellants 1 and 2 who are the parents are entitled to get ₹ 35,000/- each under the head `loss of love and affection'. The siblings who are appellants 3 and 4 are entitled to get an amount of ₹ 15,000/- each under that head. In other words, a total amount of ₹ 1,00,000/- is granted under the said head. Towards damage to clothing only an amount of 500/- was granted. The nature of the₹ injuries would reveal that the dresses worn by him on the date of the accident must have been worn. Hence, 500/- more is granted under₹ that head. 5. In the light of the discussion as above, the appellants are entitled to get an amount of 5,54,300/-, over and above the amount₹ granted under the impugned award. It is granted. The enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realization. The 3[rd] respondent shall deposit the said amount within a period of three months from the date of receipt of copy of this judgment. It is made clear that out of 1,00,000/- granted₹ towards `love and affection' appellants 1 and 2 are entitled to get ₹ 35,000/- each and appellants 3 and 4 are entitled to get an amount of ₹ 15,000/- each. Balance amount alone will be available for M.A.C.A.No.1407/2012 8 apportionment between the appellants and the same shall be apportioned between the appellants in the ratio 50:30:10:10. There will be no order as to costs. This appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS