Kunjukrishnan and K.K. Ganga Krishnan v. Santamma and Soman and Divisional Manager, National Insurance Co. Ltd. (MACA 2865 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** ## **THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933** **MACA.No. 2865 of 2009() -------------------------------OPMV.1096/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ....................** ## **APPELLANTS/PETITIONERS :** **1. KUNJUKRISHNAN, KANNANS, MURUNTHAL, PERINAD P.O., KOLLAM.** **2. K.K.GANGA KRISHNAN, D/O.KUNJU KRISHNAN, MURUNTHAL, PERINAD P.O., KOLLAM.** **BY ADV. SRI.PRATHEESH.P** ## **1. SANTHAMMA, LAL BHAVANA, ANAYAM, ANAKKOTTOOR, NEDUVATHOOR.** **2. K.SOMAN, S/O.K.PONNAMMA, VADAKKETHOPPIL VEEDU, THEVALLY,** **3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., PULAMON P.O., KOTTARAKKARA.** ## **ADVS. SRI.ANCHAL C.VIJAYAN FOR R1 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE** **R. BASANT & M.C.HARI RANI, JJ. ----------------------------------------------------------------M.A.C.A. No.2865 of 2009 ---------------------------------------------------Dated this the 1[st] day of September, 2011** ## **JUDGMENT** ## **R. BASANT,J.** Claimants are the appellants. They are the father and sister respectively of the deceased, a young man aged 23 years, who suffered injuries in a motor accident, which took place on 23.02.2005. He succumbed to the injuries suffered by him in such accident. He was a post graduate. He was teaching as lecturer in a private college. He was earning an income of Rs.4,000/- per mensem. He had appeared for the PSC examination and was selected for appointment to the category of Junior Inspector in the Co-operative Department. A total amount of Rs.7 lakhs was claimed as compensation. 2. The Tribunal came to the conclusion that only first claimant/father of the deceased is entitled to claim compensation. The Tribunal proceeded to hold that the first appellant is entitled to a total amount of Rs.1,77,000/- as compensation as per the details, which we extract below: ## **M.A.C.A. No.2865 of 2009 2** ## - Part 1 |**_Heads of claims_**|**_Amount allowed_**| |---|---| |Loss of dependency(32,000 X5)|Rs.1,60,000.00| |Transport to Hospital|Rs. 1,000.00| |Damages to clothing|Rs. 1,000.00| |Funeral|Rs. 5,000.00| ## Part-II |Part-II|| |---|---| |**_Compensationforpain and sufferings_**|**_Rs.10,0000_**| |Compensation for loss of consortium|Nil| |Compensation for love and affection|Nil| |Total award|Rs.1,77,000.00<br>= = = = = = = = =| 3. We have heard the learned counsel for the appellants and the learned counsel for the Insurance Company. Learned counsel for the appellants/claimants assails the impugned award on the sole ground that the quantum of compensation awarded is inadequate. 4. Called upon to explain and be specific, the learned counsel for the appellants assails the impugned award on various grounds. ## **M.A.C.A. No.2865 of 2009 3** 5. First of all, it is contended that the Tribunal erred in reckoning only 5 as the multiplier. The 1[st] claimant, father was aged 61 years, it was found. The deceased, his son was aged 23 years. The learned counsel for the appellants has attempted to build up an argument that following the dictum in **Sarla Verma v.Delhi Transport Corporation [(2009) 6 SCC 1211],** which is followed in **Somanathan and others v. District Insurance Officer and another(2011 (3) SCC 566),** the multiplier applicable to the deceased alone should have been taken into reckoning while ascertaining the compensation payable for loss of dependency employing the multiplier multiplicand method. We have adverted to this aspect in detail in the judgment dated 01.09.2011 in **MACA No.307 of 2011** ( **Sumathikutty v. Manoj and others).** We have taken the view that when the claimant was older than the deceased, it is the multiplier applicable to the age of the claimant, which ought to be taken into consideration for ascertainment of compensation. We do not think it necessary to delve deeper into that aspect in this appeal. We have already given reasons in detail in the judgment referred ## **M.A.C.A. No.2865 of 2009 4** above. 6. The learned counsel for the appellants next contends that the Tribunal had gone grossly wrong in reckoning the multiplicand at Rs.4,000/- per mensem. The learned counsel argues that the deceased had passed M.Com Degree Examination. He had not entered any settled employment. Until he secured such settled employment, he was working temporarily as a lecturer in a private college and it was that engagement/employment which fetched him an amount of Rs.4,000/- per month. The Tribunal unrealistically reckoned the same as the multiplicand and attempted to ascertain the quantum of compensation. 7. The Tribunal did not at all take into reckoning the fact that the deceased was a post-graduate(M.Com Degree holder). The Tribunal did not take into account the fact that he had almost secured employment in Government service in the Co-operative Department. The Tribunal did not at all consider the possibility of the deceased improving the prospects in his employment. In any view of the matter, the learned counsel for the appellants ## **M.A.C.A. No.2865 of 2009 5** submits that the Tribunal must have reckoned the monthly income at a much higher amount. 8. The learned counsel for the appellants next contends that the multiplier (5) reckoned by the Tribunal is grossly inadequate. Actually, the 1[st] claimant/father was aged only 58 years. Even assuming that he had made an admission that he was aged 61 years on the date of the accident as indicated in the impugned award, the multiplier taken by the Tribunal at 5 is grossly inadequate. Going by the dictum in **Sarla Verma** (Supra) 7 must at any rate have been accepted as the multiplier, contends the learned counsel. We find merit in that contention. Learned counsel for the Insurance Company promptly points out that following the dictum in **Sarla Verma** (Supra) half the amount must have been deducted towards the personal expenses of the deceased, he being a bachelor. We find merit in that contention. The Tribunal only reduced 1/3[rd] towards the personal expenses. 9. The learned counsel for the appellants next contends that no amount has been awarded under the heads of loss of love and **M.A.C.A. No.2865 of 2009 6** affection and loss of estate. We are certainly of the opinion that the 1[st] claimant is entitled to compensation under those heads. 10. The learned counsel for the appellants finally makes an attempt to advance a contention that the amount payable under Section 163(A) must be calculated and it must be ensured that the amount awarded under Section 166 of the M.V.Act does not at any rate, fall below the amount that ought to be awarded under Section 163 A of the M.V.Act. The contention sounds impressive at the first blush, but we must alertly note that following the dictum in **Deepal Girishbhai Soni and others v. United Insurance Company Ltd, Baroda(2004 SC 2107)** , a person earning above Rs.40,000/- annually cannot succeed in claiming any amount under Section 163 (A) of the M.V.Act. The avenue of Section 163 (A) of the M.V. Act is therefore not available to the claimants/Appellants. The appellants had asserted and the Tribunal had accepted that the annual income of the deceased exceeds Rs.20,000/-. The appellants cannot hence claim any amount under Section 163 A of the Act. ## **M.A.C.A. No.2865 of 2009 7** 11. The above discussions, lead us to the conclusion that the 1[st] appellant is entitled to a further amount of Rs.1,12,000/in addition to the amount awarded by the Tribunal as per the details given below: 1.Loss of dependency :Rs.92,000.00 (Rs.4,000X150/100X12X1/2X7= 2,52,000 minus 1,60,000) 2. Compensation for loss of love and affection :Rs.15,000.00 3. Compensation for loss of estate :Rs. 5,000.00 ------------------Total Rs.1,12,000.00 =========== 12. We are not satisfied that the amounts awarded under any other heads warrant appellate interference. 13. In the result; - a. This appeal is allowed in part. - b. The 1[st] appellant is found entitled to a further - amount of Rs.1,12,000/-(Rupees one lakh and twelve thousand only) in addition to the amount awarded by the Tribunal. ## **M.A.C.A. No.2865 of 2009 8** - c. We make it clear that the entire amount of compensation shall carry interest at the rate and for the period specified by the Tribunal. - d. All other directions of the Tribunal are upheld. ## **R. BASANT, JUDGE** ## **M.C.HARI RANI, JUDGE** ## **ln**