Kuttappan and others v. R. Kalimuthu and others and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** **MACA.No. 2809 of 2008 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 2160/2002 of M.A.C.T.,KOTTAYAM DATED 22-04-2008** ## **APPELLANT(S)/PETITIONERS:** **------------------------** **1. KUTTAPPAN, S/O. NARAYANAN, NJARALIKOTTIL, PAROLICKAL, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE.** **2. AMMINI, W/O. KUTTAPPAN, NJARALIKOTTIL, PAROLICKAL, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE.** **3. SINDHU, D/O. KUTTAPPAN, NJARALIKOTTIL, PAROLICKAL, PADINJATTUM BHAGOM KARA,** **ATHIRAMPUZHA VILLAGE.** **4. SURESH, S/O. KUTTAPPAN, NJARALIKOTTIL, PAROLICKAL, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT. SUBHA ABRAHAM** ## **RESPONDENT(S)/RESPONDENTS:** ## **--------------------------** **1. R. KALIMUTHU, S/O. RAMACHAMY, 10, KALIMIL ROAD, JAMEN, UTHUKUZHY, POLLACHI, TAMILNADU STATE.** **2. K. KUZHANTHAVEL, S/O. PAZHANIRAPPU THEVAR, Q/888 ATHIL POLLACHI, MANAKADAVU, POLLACHI.** **3. THE ORIENTAL INSURANCE CO. LTD., UDUMALI BRANCH, TAMIL NADU STATE** **R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sou.** ## **P.N. RAVINDRAN, J. & K. RAMAKRISHNAN, J.** **--------------------------------------M.A.C.A. No.2809 of 2008 ----------------------------------------Dated this the 30[th] day of May 2016** ## **J U D G M E N T** ## **Ramakrishnan, J.** The claimants in OP(MV)No.2160 of 2002 in the Additional Motor Accident Claims Tribunal, Kottayam are the appellants herein. The appellants are the parents and siblings of deceased Sathish, who died in a motor vehicle accident occurred on 31.12.2000. According to the claimants, the deceased was travelling in a mini van bearing registration No.TN-49/Z 4228 inside the cabin as accompanying the goods as agent of the owner of the goods and when the vehicle reached the place of occurrence, it hit against a tree and overturned. According to the claimants, the accident occurred due to the rash and negligent driving of the vehicle by the first respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was working as a clerk-cum-accountant and getting `5,500/- per month as his income. They claimed a total compensation of `7,00,000/- on various heads. ## M.A.C.A. No.2809 of 2008 ## -: 2 :- 2. Respondents 1 and 2 remained absent. 3. The 3[rd] respondent insurer entered appearance and filed a written statement, admitting the insurance of the vehicle involved in the accident. They denied the allegation of negligence on the part of the first respondent. According to them, the deceased was travelling in the platform of the vehicle as such they are not liable to compensate the petitioners and there is no liability for them to indemnify the insured as persons carried in the platform are not covered by the policy. They denied the income, occupation of the deceased and dependancy of the petitioners as well and prayed for dismissal of the petition. 4. PWs.1 and 2 were examined and Exts.A1 to A9 were marked on the side of the claimants. Ext.B1, copy of the policy certificate was marked on the side of the 3[rd] respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligence of the first respondent in driving the vehicle and also found that the deceased was travelling in the cabin of the vehicle and not on the platform, accompanying the goods carried in the vehicle as authorised agent of the owner of the goods and awarded a total compensation of `2,64,000/- on various heads as follows :- ## M.A.C.A. No.2809 of 2008 ||-: 3 :-|| |---|---|---| |“Loss of dependency|-|`1,98,000/-| |Transportation|-|`5,000/-| |Damage to clothings and||| |other articles|-|`1,000/-| |Funeral expenses|-|`5,000/-| |Loss of estate|-|`10,000/-| |Pain and sufferings|-|`10,000/-| |Loss of love and affection|-|`20,000/-| |Loss of expectation of life|-|`15,000/-”| The Tribunal held that respondents 1 to 3 are jointly and severally liable to pay the compensation and directed the 3[rd] respondent to pay the compensation to the petitioners as the insurer of the vehicle being indemnified by the insured as per the contract of indemnity. Dissatisfied with the quantum of compensation, the present appeal has been preferred by the appellants/claimants before this Court. 5. Since the liability of the insurance company is admitted and only quantum of compensation need be gone into in the appeal, we thought it fit to admit and dispose of the appeal, after hearing learned counsel for the claimants and insurance company. 6. Heard Smt.Monisha K.R., learned counsel representing Sri.Philip T. Varghese, learned counsel appearing for the appellants and Sri.V.P.K.Panickar, learned counsel appearing for the third respondent. Notice to respondents 1 and 2 dispensed with as the M.A.C.A. No.2809 of 2008 -: 4 :- liability to indemnify the insured is not disputed by the Insurance Company. 7. Learned counsel for the appellants submitted that since the deceased was travelling in the vehicle as the authorised agent of the owner of the goods, the Tribunal ought to have accepted the evidence regarding his monthly income of `5,500/- instead of fixing the monthly income as `3,000/-. Further, no future prospects have been taken into consideration for the purpose of awarding compensation. The Tribunal has awarded only `20,000/- under the head 'loss of love and affection', which is low as the deceased was aged only 26½ years and his parents were aged only 48 and 45 years respectively. Further, there are two siblings and at time of accident his sister was not married as well and he is the only bread winner in his family. So, according to her, the amounts awarded under the heads pain and suffering, loss of estate etc. are also on the lower side. The claimants are entitled to get enhancement on all heads. 8. On the other hand, learned counsel for the Insurance Company submitted that once the notional income has been taken, the question of adding future prospects does not arise. Further, the accident in this case occurred in the year 2000 and the M.A.C.A. No.2809 of 2008 -: 5 :- decisions were of the year 2009 and the Tribunal has taken the law as on that time and awarded just and reason compensation and as such, the award does not call for any interference. 9. Since the accident in question and liability to pay compensation are not in dispute, we are not going into those aspects in this appeal. The case of the claimants in the claim petition was that the deceased was aged only 26½ years and was working as clerk-cum-accountant and working in a private concern and getting `5,500/- per month and while he was accompanying with the goods of the owner from Tamil Nadu that the accident occurred. It is true that there is no documentary evidence to prove the income of the deceased. The fact that he was travelling in the vehicle as authorised agent of the owner of the goods shows that he was employed under someone else and he was getting some income from them. It is settled law that even in cases, where there is no permanent income for the deceased, future prospects will have to be taken into consideration for the purpose of quantifying the amount for fixing the multiplicant for calculating the amount under the head 'loss of dependency'. In the absence of any evidence adduced to prove his annual income, we feel that the amount of `3,000/- fixed by the court below without considering future M.A.C.A. No.2809 of 2008 -: 6 :- prospects appears to be on the lower side. Considering the fact that the accident occurred in the year 2000 and the deceased was aged only 26½ years at that time, including future prospects, we fix the monthly income of the deceased as `4,000/- per month. 10. Further, the Tribunal has taken the age of the parents for the purpose of selecting multiplier, which was said to be not correct as per the decision reported in **Amrit Bhanu Shali and Others** v. **National Insurance Company Limited and Others** [(2012) 11 SCC 738] and the same view has been reiterated in the decision reported in **Munna Lal Jain and Others** v. **Vipin Kumar Sharma and Others** [JT 2015 (5) SC 1]. So, the court below ought to have taken the age of the deceased as basis for selecting suitable multiplier. Further, in this case, the deceased was a bachelor. The Tribunal has deducted 1/3[rd] for his personal expenses, which also is not correct in view of the dictum laid down in **Sarla Verma and Others** v **. Delhi Transport Corporation and Another** [(2009) 6 SCC 121]. As per the **Sarla Verma's case** (cited supra) half of the amount has to be deducted for personal expenses in the case of a bachelor died in an accident and his parents being the claimants. If a recalculation is made on that basis, the appellants will be entitled to `4,08,000/- (4,000 x 12 x 17 x ½) instead of `1,98,000/- M.A.C.A. No.2809 of 2008 -: 7 :- awarded by the Tribunal, thereby, they will be entitled to get an additional amount of `2,10,000/- under the head 'loss of dependency'. The Tribunal has awarded only `20,000/- for 'loss of love and affection' and `15,000/- under the head 'loss of expectation'. In a case where, future prospects has to be taken into consideration for the purpose of awarding compensation, there is no question of awarding separate compensation under the head 'loss of expectation of life'. Considering the fact that in the decision reported in **Amrit Bhanu Shali's case** (cited supra) the Supreme Court has held that in the case of parents, a consolidated amount of `1,00,000/- will have to be awarded as compensation under the head 'loss of love and affection'. In this case, the parents were aged only 48 and 45 years respectively at the time of death of their son and it is seen from the allegations in the petition that their other two children were not employed and the sister was unmarried as well. So, considering those aspects, we feel that a consolidated amount of `1,00,000/- can be awarded under the head 'loss of love and affection' to the parents as well as the siblings and we do so. Deducting `35,000/- awarded by the Tribunal under the heads 'loss of love and affection' and 'loss of expectation in life', the appellants will be entitled to get an additional amount of `65,000/- under that M.A.C.A. No.2809 of 2008 -: 8 :- head. We are not inclined to award any amounts under other heads as considering the year of accident and the amounts awarded under the other heads appears to be just and proper. As such, the appellants are entitled to get an additional amount of `2,75,000/-, which the 3[rd] respondent Insurance Company is liable to pay with interest at the rate of 9% from the date of petition till payment. The enhanced compensation shall be shared between the parents as they are the legal heirs and actual dependents. Three months time is granted to the Insurance Company to deposit the enhanced amount. With the above modification in the award passed by the Tribunal, this M.A.C.A. is allowed in part and disposed of accordingly. **Sd/-** **P.N. RAVINDRAN JUDGE** **Sd/K. RAMAKRISHNAN** **JUDGE** //True copy// P.A. To Judge Jvt/7.6.2016