## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU**
**THURSDAY, THE 6TH DAY OF APRIL 2017/16TH CHAITHRA, 1939**
**MACA.No. 607 of 2013 () ------------------------**
**AGAINST THE AWARD IN OPMV 997/2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 30-11-2012**
## **APPELLANT(S)/PETITIONERS:**
**------------------------**
**1. K.T.MATHEW, S/O.THOMAS KUMBILUMOOTTIL HOUSE, PUTTADI KARA, ANAKKARA VILLAGE, NOW RESIDING AT KURICHIYIL HOUSE, BHARANANGANAM VILLAGE. [DECEASED] [APPELLANTS 2 AND 3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT NO.1 AS PER ORDER DATED 31/05/2016 IN IA.1641/16 IN M.A.C.A.NO.607/13.]**
**2. MARIYAMMA, W/O.K.T. MATHEW KUMBILUMOOTTIL HOUSE, PUTTADI KARA, ANAKKARA VILLAGE, NOW RESIDING AT KURICHIYIL HOUSE, BHARANANGANAM VILLAGE.**
**3. JOBIN MATHEW, S/O.K.T.MATHEW (MINOR)**
**MINOR REPRESENTED BY NEXT FRIEND FATHER KUMBILUMOOTTIL HOUSE, PUTTADI KARA, ANAKKARA VILLAGE, NOW RESIDING AT KURICHIYIL HOUSE, BHARANANGANAM VILLAGE.**
**BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY**
**RESPONDENT(S)/RESPONDENTS:**
**--------------------------**
**1. KAURPPA SAMY M., S/O.MANI S. W1 RAJU NAGAR, SUKKANGAL PATTY, CUMBUM 625 516 THENI DISTRICT, TAMILNADU. [DELETED][RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 24.02.2015 IN IA 556/15.]**
**2. SAIJILAL K.L., S/O.LOHITHAN**
**HOUSE NO.2/599, KUNNUMPURATH HOUSE, KATTAPPANA SOUTH POST, IDUKKI DISTRICT.**
**3. THE MANAGER**
**ORIENTAL INSURANCE CO. LTD., KANJIRAPPALLY BRANCH.**
**R3 BY ADV. SRI.VPK.PANICKER R BY SRI.GEORGE CHERIAN (THIRUVALLA)**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **P.R.RAMACHANDRA MENON & A.M.BABU, JJ.**
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M.A.C.A.No.607 OF 2013
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## **JUDGMENT**
## **P.R.RAMACHANDRA MENON, J.**
Inadequacy of the compensation awarded by the Tribunal by adopting a wrong multiplicand and multiplier and also in not having granted the proper amount which ought to have been granted under the relevant heads in OP(MV) No.997/2010, is the subject-matter in this appeal.
2. Heard Sri.Mathew John, the learned counsel for the appellants and Sri.V.P.K.Panicker, the learned counsel appearing on behalf of the third respondent Insurance Company.
3. The accident was on 23.8.2010. The deceased, aged 22 years, was riding a motor cycle bearing registration No.KL-6/C-2208. When he reached the place of occurrence, he was knocked down by a lorry bearing registration No.KL6/E-6065 driven, owned and insured by the respondents 1 to
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3; causing fatal injuries leading to his death, in turn leading to the claim preferred by the parents and brother of the deceased.
4. It is brought to the notice of this Court by the learned counsel for the appellant that during the pendency of the proceedings before this Court, the first appellant (the father of the deceased) had breathed his last. Consequently, his widow and son were got impleaded in this appeal.
5. The matter was contested by the Insurance Company, mainly pointing out that the deceased was riding motor cycle without any valid and effective driving licence at the relevant time. Evidence was adduced by examining the first claimant, father of the deceased as PW1 and also marking Exts.A1 to A6 . No evidence was adduced from the part of the respondents. Based on the materials on record, the Tribunal held that the accident was only because of the negligence on the part of the driver of the lorry. But on the next breath, the Tribunal reduced 10% presumably for the
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contributory negligence on the part of the rider and awarded the compensation accordingly. The case of the claimant before the Tribunal was that the deceased was having permanent employment as a supervisor and some documents were produced to substantiate the same. But the materials on record revealed that he was only a coolie general worker. Hence the Tribunal reckoned only Rs.4,500/as the notional monthly income for fixing the loss of dependency. The Tribunal reckoned the multiplier of 11 (based on the age of the mother) and awarded Rs.2.97 lakhs under this head. Awarding amounts under other relevant heads, total compensation payable was fixed as Rs.3.26 lakhs which was directed to be satisfied with interest. After reducing 10%, the actual extent payable was fixed as Rs.2,93,400/-, which was directed to be paid with interest at the rate of 7.5% per annum, from the date of petition, till satisfaction.
6. The learned counsel for the appellant points out
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that the Tribunal itself has arrived at a finding with reference to the evidence on record, particularly the charge-sheet, that the accident was solely because of the negligent driving of the lorry by the first respondent. It was also held that in the absence of any cogent evidence, it cannot be held that 'want of driving licence' was a factor to be taken into account for finding contributory negligence on the part of the deceased. After having arrived at a clear finding on negligence, it was quite wrong for the Tribunal to have reduced 10% towards contributory negligence. We find considerable course in the said submission, in so far as the finding as negligence, fixing it solely on the part of the first respondent is not under challenge. Reduction of compensation by 10% towards contributory negligence, does not reconcile with the former part of the Award and as such, we find it appropriate to fix negligence solely on the part of the driver of the lorry and the reduction by 10% stands set aside.
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7. The next point is with regard to the quantum of compensation payable. The amounts awarded by the Tribunal under different heads, as given in para 7 of the Award, are reproduced below for easy reference.
_**Part I Amount claimed (in ₹) Amount awarded (In ₹)**_ Loss of earnings NA Not entitled partial loss of earning NA -- Transport to hospital 1,000/1,000/Damages to clothing 2,000/500/and articles Treatment expenses 2,000/Not entitled Extra nourishment 1,000/Not entitled Funeral expenses 20,000/5,000/- _**Part II**_ Pain and suffering 50,000/10,000/Loss of dependency 13,00,000/2,97,000/(4,500 x12= 54,000 -1/2 (27,000) = 27,000 x 11 Loss of estate Nil 2,500/Loss of love and 50,000/10,000/affection Compensation for future 50,000/Not entitled prospects of deceased in his career Total 14,76,000/3,26,000/-
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8. The learned counsel for the appellant submits that the avocation of the deceased as a coolie general worker is not sought to be varied, but the notional income requires some modification. It is true that no positive evidence was adduced with regard to the monthly income; which even otherwise may not be possible as well in so far as the deceased was a general worker, having no fixed employer. Taking note of the fact that the accident was of the year 2010 and also considering the economic situation prevailing on the date of accident, we find it appropriate to refix the same as Rs.5,500/- per month. It is also equally important to note that the law now stands well settled that appropriate multiplier has to be adopted with reference to the age of the deceased. In the instant case, the deceased was only 22 years and as such, proper multiplier should have been '18'. The compensation towards loss of dependency comes to 5500 x 12 x 50/100 x 18 = 5,94,000/-. After deducting the
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sum of Rs.2.97 lakhs already awarded by the Tribunal, the balance comes to **Rs.2,97,000/-** .
9. The Tribunal has awarded only a sum of Rs.5,000/towards funeral expenses and a sum of Rs.10,000/- towards loss of love and affection. This is on the lower side, in view of the law declared by the Supreme Court as per the verdict reported in **2013 (3) KLT 89 (Rajesh and Ors vs. Rajbir Singh and Ors** ); by virtue of which it should have been Rs.25,000/- and Rs.1,00,000/- respectively. After deducting the sums awarded by the Tribunal, the balance payable under these two heads comes to **Rs.20,000/-** and **90,000/-** respectively. We award the same. The Tribunal has awarded a sum of Rs.2,500/- towards the loss of estate. We find it appropriate to award a further sum of **Rs.7,500/-** under this head as well. Thus, the total balance compensation payable comes to **Rs.4,14,500/- (Rupees Four lakhs fourteen thousand five hundred only)** . This is required to be satisfied with interest at the rate of 9% per annum from the
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date of claim petition, till realization. Since the policy is admitted, the due amount shall be deposited by the respondent Insurance Company at the earliest, at any rate, within 'one month' from the date of receipt of a copy of this judgment. On effecting the deposit as directed above, it is open for the claimants to get the due amount released from the Tribunal by filing necessary proceedings.
**P.R.RAMACHANDRA MENON Judge**
**A.M.BABU Judge** sks/6.4.2017
