Kunhimon and others v. Bhaskar P., Madhusoodanan M.V. and The Oriental Insurance Company Limited

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 MACA.No. 1726 of 2010() ----------------------OPMV.761/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... ## APPELLANTS/ PETITIONERS ------------------------- 1. KUNHIMON, AGED 65 YEARS,F/O.LATE NOUPHAL NADUKATTIL HOUSE, P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 2. MARIYA, AGED 61 YEARS, M/O.LATE NOUPHAL, NADUKATTIL HOUSE, - P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 3. ASHARAF, AGED 42 YEARS, B/O.LATE NOUPHAL NADUKATTIL HOUSE, - P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 4. LATHEEF, AGED 40 YEARS, B/O.LATE NOUPHAL NADUKATTIL HOUSE, - P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 5. SUHARA, AGED 38 YEARS, S/O.LATE NOUPHAL, NADUKATTIL HOUSE, - P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 6. KHADIJA, AGED 36 YEARS, S/O.LATE NOUPHAL NADUKATTIL HOUSE, - P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 7. RAFI, AGED 34 YEARS, B/O.LATE NOUPHAL NADUKATTIL HOUSE, - P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 8. SHAMEER, AGED 32 YEARS, B/O.LATE NOUPHAL NADUKATTIL HOUSE, P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. 9. NAZEER, AGED 30 YEARS, B/O.LATE NOUPHAL NADUKATTIL HOUSE, - P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. ## MACA.NO.1726/2010 10. UNAS, AGED 26 YEARS, B/O.LATE NOUPHAL NADUKATTIL HOUSE, P.O.VELLIYAMKODE, PONNANI, MALAPPURAM DISTRICT. BY ADV. SRI.M.R.NANDAKUMAR SMT.M.SINDHU THANKAM RESPONDENTS/ RESPONDENTS IN OPMV ---------------------------------- 1. BHASKARAN P., PARTNER PIPE FIELD, 35/762, NORTH JANATHA ROAD, PALARIVATTOM, COCHIN, ERNAKULAM DISTRICT (R.C.OWNER)-25. 2. MADHUSOODANAN M.V., S/O.RAGHAVAN NAIR, MEETHAL VEETTIL HOUSE, P.O.PALATH, KOZHIKODE DISTRICT (DRIVER). 3. THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PRAMOD BUILDING, CHEROOTTY ROAD, CALICUT-673001. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2011, THE COURT ON 30/06/2011 PASSED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1726 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of June , 2011 ## **JUDGMENT** ## Barkath Ali, J. The short question which arise for consideration in this appeal under section173 of the Motor Vehicles Act by the claimants is while assessing compensation for loss of dependency under section 163A of the Motor Vehicles Act in a fatal accident case, what is the multiplier that has to be adopted i.e., whether on the basis of the age of the deceased or on the basis of age of parents of the deceased. 2. Appellants are the parents, brothers and sisters of deceased Nouphal who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated February 23, 2010 awarding a compensation of Rs.1,83,700/- for the loss caused to them on account of the death of Nouphal in that accident. 3. Deceased Nouphal was aged 22 at the time of the accident and was a bachelor and used to earn Rs.3,200/- per month as an Autorickshaw Mechanic, according to the appellants. On May 30, 2008 at about 11.15 p.m. while Nouphal was standing on the side of the road in MACA.No.1726/2010 2 Thavalakulam Centre, he was knocked down by a lorry bearing registration No.KL-07-AZ-6802. He sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. Alleging negligence against the second respondent, the driver of the offending lorry, the claimants filed the O.P. before the Tribunal claiming a compensation of Rs.5,76,000/-. 4. Respondents 1 and 2, the owner and the driver of the offending lorry, remained absent before the Tribunal. The third respondent, insurer of the offending lorry, filed a written statement admitting the policy. 5. This O.P. was jointly tried along with other Original Petitions filed by the legal heirs of other deceased persons in the accident and a common award was passed. Exts. A1 to A25 were marked on the side of the claimants. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to negligence of the second respondent, the driver of the offending lorry and awarded a compensation of Rs.1,83,700/- with interest @ 7.5% per annum from the date of petition till realization and a cost of Rs. 5,000/-. The MACA.No.1726/2010 3 claimants have come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the claimants and the counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent, driver of the offending lorry, and that the deceased died as a result of the injuries sustained in the accident are not challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimants are entitled to any enhanced compensation. 8. The Tribunal awarded a total compensation of Rs.1,83,700/-. Break up of the compensation awarded is as under:- Funeral expenses : Rs. 2,000/Loss of estate : Rs.2,500/Loss of dependency : Rs. 1,79,172/-----------------Total : Rs.1,83,672/Rounded to : Rs.1,83,700/======== 9. Counsel for the claimants sought enhancement of MACA.No.1726/2010 4 compensation for loss of dependency. 10. The Tribunal took the monthly income of the deceased as Rs.3,200/- and after deducting 1/3 for his personal expenses, took the balance amount of Rs.2,133/- as his monthly contribution to his family which comes to Rs.25,596/- per annum. The Tribunal adopted a multiplier of 7 taking into consideration the fact that claimants 1 and 2, the parents were aged 65 and 61 respectively at the time of the accident and awarded Rs.1,79,172/- towards loss of dependency. 11. Learned counsel for the appellant Sri.M.R.Nandakumar argued that the multiplier adopted by the Tribunal is erroneous as the same was fixed on the basis of the age of the parents of the deceased, that this being a claim under Section 163 A of Motor Vehicles Act, the multiplier as shown in Second Schedule of the Act has to be adopted on the basis of the age of the deceased. 12. Sri.George Cherian, learned counsel for the Insurance Company supported the award of the Tribunal and further contended that the Tribunal deducted only 1/3 of the income of the deceased for his personal expenses, but as the deceased was a bachelor, ½ of his MACA.No.1726/2010 5 income should have been deducted towards his personal expenses. 13. Learned counsel for the Insurance Company cited the following decisions in support of his case : 1. U.P.State Road Transport Corporation and others v. Trilok Chandra and others ( 1996 (4) Supreme Court Cases 362) 2. Unni v. Baby John ( 2008(2) KLT 78) 3. Ramesh Singh v. Satbir Singh ( 200891) KLT 614 (SC) 4. Syed Basheer Ahamed and others v. Mohammed Jameel and another ( 2009 (2) Supreme Court Cases 225) 5. United India Insurance Co.Ltd v. Mathai ( 2009(3) KLT 231) 6. Supe Dei (Smt) and others v. National Insurance Company Limited and another ( 2009(4) Supreme Court Cases 513) 7. National Insurance Company Limited v. Gurumallamma and another ( 2009 (16) Supreme Court Cases 43) 8. Mohd.Ameeruddin and another v. United India Insurance Company Limited and another ( 2011(1) Supreme Court Cases 304) MACA.No.1726/2010 6 14. Of the above decisions, Mohd.Ameeruddin and another v. United India InsuranceCompany Limited and another (Supra) and Syed Basheer Ahamed and others v. Mohammed Jameel and another (Supra) and Unni v. Baby John (Supra) would not apply to the facts of the present case. Those decisions deal with the claim under Section 166 of Motor Vehicles Act, while in the present case, the claim is made under Section 163 A of Motor Vehicles Act. 15. In U.P.State Road Transport Corporation and others v. Trilok Chandra and others (Supra), the three Judge Bench of the Apex Court has held that selection of multiplier cannot be solely dependent on the age of the deceased following the principles laid down in G.M., KSRTC v. Susamma Thomas ( 1994(2) SCC 176). The Apex Court has also followed the same principles in Ramesh Singh v. Satbir Singh (Supra) and held that if a young man is killed in an accident leaving behind aged parents who may not survive long enough to match with a high multiplier provided by Second Schedule, Court has to offset such high multiplier and balance same with short life expectancy of claimants. A Division Bench of this court followed these principles in MACA.No.1726/2010 7 United India Insurance Co.Ltd v. Mathai ( Supra). 16. But in a recent decision in National Insurance Company Limited v. Gurumallamma and another (Supra), the Apex Court has held that in a claim under Section 163A of Motor Vehicles Act, multiplier stricto sensu is not applicable. The Apex Court has observed further therein thus : _“ Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs.3300 per month, the amount of compensation payable would be somewhat between Rs.6,84,000 to Rs.7,60,000._ _As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunal in a proceeding under Section 163-A of the Act is required to determine the_ MACA.No.1726/2010 8 _amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities.”_ 17. In the light of the principles laid down in Gurumallamma's case (Supra), we are of the view that the multiplier as shown in Second Schedule to the Motor Vehicles Act on the basis of the age of the deceased has to be applied in the case of a claim under Section 163-A of the Act. 18. Thus considered, in the present case, the deceased was aged 22 at the time of the accident. Therefore, the proper multiplier that has to be adopted in this case is 17 as shown in Schedule II of the Motor Vehicles Act. As regards the income taken by the Tribunal and the deduction of 1/3 towards his personal expenses, we find the same to be justifiable. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 4,35,132/- (2133 x 12 x 17). Thus on this count, the claimants are entitled to an additional compensation of Rs.2,55,960/-. 19. In the result, the claimants are found entitled to an additional compensation of Rs.2,55,960/- with interest @ 7.5% per MACA.No.1726/2010 9 annum from the date of petition till realisation and proportionate cost. The 3[rd] respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** mn/sv. MACA.No.1726/2010 10