Laila v. The Manager, 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 B.SUDHEENDRA KUMAR THURSDAY, THE 14TH DAY OF SEPTEMBER 2017/23RD BHADRA, 1939** **MACA.No. 1222 of 2013 ()** **------------------------OPMV 348/2007 of M.A.C.T.,ATTINGAL** **APPELLANT/2ND PETITIONER:** **-------------------------------------------** **LAILA, AGED 50 YEARS W/O.SALIM, CHETTAKAVIL PUTENVEEDU, PALAYAMKUNNU PO VARKALA, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN SMT.NIMA JACOB** **RESPONDENT/3RD RESPONDENT:** **--------------------------------------------------** **THE MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED ASH HAR BUILDING, MAIN ROAD, ATTINGAL 695 101 THIRUVANANTHAPURAM** **R1 BY ADV. SRI.A.A.ZIYAD REHMAN(B/O,NO MEMO) R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 1222/2013 2 ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.1222 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of September 2017 ## JUDGMENT ## **C.T.Ravikumar J.,** This appeal is directed against the award dated 30.6.2012 in O.P.(M.V.) No.348 of 2007 passed by the Motor Accidents Claims Tribunal, Attingal. The 2[nd] applicant therein is the appellant. She, along with her husband filed the above said claim petition seeking compensation for the death of their son in a motor vehicle MACA 1222/2013 3 accident, under Section 166 of the Motor Vehicles Act. The first applicant is no more. 2. The accident which led to the filing of the said claim petition had occurred on 12.12.2006 at about 12.20 p.m. The deceased Habeeb was a pillion rider on the motor cycle bearing Registration No.KL-16/C 2480. At the place of accident, it was collided with the private stage carriage bearing Reg.No.KL-16/C-5506, driven by the 2[nd] respondent. On sustaining injuries, Habeeb was taken to a hospital, from where he succumbed to the injuries, on the same day. It is in the said circumstances that the above said claim petition was filed claiming Rs.8,00,000/-. As MACA 1222/2013 4 per the impugned award, the Tribunal had awarded an amount of Rs.3,07,500/- as compensation with interest at the rate of 7.5% per annum from the date of petition till realisation. It seeking enhancement of the said quantum of compensation, that the captioned appeal has been preferred. 3. We have heard the learned counsel for the appellant and also the learned counsel for the respondent Insurance Company. 4. Obviously, there is no dispute regarding the cause of accident as also the liability of the respondent Insurance Company to indemnify the insured owner of the vehicle involved in the accident. In short, we are only called upon MACA 1222/2013 5 to consider whether or not the appellant is entitled to get the enhanced compensation. 5. The learned counsel appearing for the appellant submitted that mainly the erroneous fixation of the monthly income as also the wrong identification of the multiplier that deprived the appellant the 'just compensation'. It is submitted that disregarding the averments in the claim petition as to the occupation and income of the deceased the tribunal had fixed his monthly income notionally as Rs.3,000/- as against the claim of Rs.4,500/-. It is further submitted that in deviation of the dictum laid down by the Honourable Apex Court in **Sarla Verma v. Delhi** MACA 1222/2013 6 **Transport Corporation** [2010(2) KLT 802 (SC)], the Tribunal had adopted the multiplier with reference to the average of age of the claimants, who are the parents of the deceased. It is submitted by the learned counsel for the appellant that in the light of the decision in **Sarla Verma** 's case (supra), the multiplier ought to have been identified with reference to the age of the deceased. It is further submitted that the Tribunal had granted only meager amounts towards funeral expenses, compensation for pain and suffering and also compensation for loss of love and affection. Shortly stated, according to the learned counsel for the appellant an upward modification of the quantum of MACA 1222/2013 7 compensation under those heads, is required. 6. Per contra, the learned counsel appearing for the respondent Insurance Company contended that a glance at the schedule of compensation given in the judgment would reveal that the was appellant granted adequate compensation under all heads. It is the further submission that the appellant had failed to adduce any evidence to establish her averments regarding occupation and income of the deceased. In such circumstances, the fixation of the monthly income by the tribunal notionally requires no interference, it is submitted. The learned counsel would further submit that the identification of the multiplier with MACA 1222/2013 8 reference to the age of the claimants also cannot be said to be an error committed by the tribunal, taking into account of the fact that at the time of the accident the claimants were aged 54 and 44 respectively. Having given our anxious consideration to the rival contentions, we have no hesitation to hold that an appellate interference is called for, in this case. **7.** We will firstly consider whether the fixation of the monthly income by the Tribunal invites interference. True that in the claim petition, it is averred that the deceased was a salesman in a Textile shop and that he was earning Rs.4,500/- per month. At the same time, it is evident that MACA 1222/2013 9 the appellant had not adduced any evidence to establish those averments. When that be so, the Tribunal cannot be said to have committed an error in fixing the monthly income notionally. But at the same time, the question is whether the fixation of the monthly income notionally as Rs.3,000/- warrants interference. While considering the said issue, certain factors viz., the year of the accident as also the age of the deceased at the time of accident have to be taken into account. The deceased Habeeb was aged only 19 years at the time of accidental death viz., on 12.12.2006. While considering the said issue, it is only proper and profitable to refer to the decision of the Apex MACA 1222/2013 10 Court in **Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951). In that case in respect of a coolie, who met with an accident in the year 2004, the Hon'ble Apex court had fixed the monthly income as Rs.4,500/- for calculation purpose. Taking into account of aforesaid aspects, we do not find any reason to disbelieve the claim of the appellant regarding the monthly income of the deceased. In short, for calculation purpose, we fix the monthly income of the deceased as Rs.4,500/-. The next question to be considered is whether any addition is to be made to the said income reckoning his future prospects. True that the MACA 1222/2013 11 decision of the Apex Court in **Rajesh v. Rajbir Singh** [2013(3) KLT 89(SC)] is not applicable in this case, for the reason that he is not a salaried person or a person with a fixed income. But at the same time, we are of the view that even in the case of persons who earn their livelihood by engaging themselves in some manual works, cost of living, rise in price index etc. would have some reflection. To cope up with such situation and to make a living they may also be constrained to seek for enhanced rate of wages. In short, we are of the view that the appellant is entitled to get 30% addition to the income fixed reckoning future prospects of the deceased. In short, for the calculation MACA 1222/2013 12 purpose, the monthly income has to be taken as Rs.5,850/-. 8. The next question to be considered is whether the Tribunal had committed an error in identifying the multiplier. Obviously in this case, the multiplier was identified with reference to the average age of the parents of the deceased. The question as to how the multiplier has to be adopted in an application for compensation filed under Section 166 of the Motor Vehicle Act seeking compensation for death, is no more _res integrae_ in the light of the decision of the Apex Court in **Sarla Verma** 's case (supra) and which was got confirmation in the decision in **Munna Lal Jain and another v. Vipin Kumar Sharma** MACA 1222/2013 13 **and others** (2015 (6) SCC 347). In the light of the aforesaid decisions of the Hon'ble Apex Court, the multiplier has to be adopted with reference to the age of the deceased and not with reference to the average age of the parents. As noticed herein before, in this case, at the time of accidental death, Habeeb was aged only 19 years. In such circumstances, in view of the schedule in **Sarla Verma** 's case (supra) the multiplier applicable is '18'. Since in the light of the **Sarla Verma** 's case (supra), in the case of a bachelor 50% of the income has to be deducted towards personal and living expenses of the deceased, the monthly income has to be taken as Rs.2,925/- viz., 50% of MACA 1222/2013 14 Rs.5,850/-. Taking into account, all the aforesaid aspects, compensation payable towards loss of dependency has to be re-assessed. On such re-assessment, the amount payable will be Rs.6,31,800/- (2,925x12x18). The Tribunal had already granted an amount of Rs.2,34,000/under the said head. After deducting the said amount, the appellant is entitled to get an amount of Rs.3,97,800/additionally. 9. Now, we will consider whether the appellant is entitled to enhanced compensation under any other heads. Towards funeral as the claim of expenses against Rs.15,000/-, only an amount of Rs.5,000/- was granted by MACA 1222/2013 15 the Tribunal. Though the appellant cannot as a matter of right, claim the benefits flowing from the decision in **Rajesh** 's case (supra), we find no reason to decline the claim of the appellant under the said head. In short, we are inclined to grant an amount of Rs.10,000/- additionally funeral expenses. Towards compensation for pain and suffering, the Tribunal had not granted any amount. Though the accident had occurred at 12.20 p.m. on 12.12.2006, he succumbed to the injuries from the hospital only at about 7.30 in the evening, on the same day. Thus, it is evident that the deceased had to suffer excruciating pain due to the injuries sustained in the accident for a MACA 1222/2013 16 considerable long time. Taking into account the said fact, we are inclined to grant Rs.10,000/- towards compensation for pain and suffering. Towards compensation for loss of love and affection, the Tribunal had granted Rs.25,000/-. As noticed herein before the claim petition was moved by the parents of the deceased. They lost their son when he was aged only 19 years. They were aged 54 and 44 years respectively. In such circumstances, we are of the view that there was no reason to deny the amount claimed towards compensation for loss of love and affection, viz., Rs.50,000/-. In short, we are inclined to grant an additional amount of Rs.25,000/- under that head. Despite MACA 1222/2013 17 the persuasive arguments of the learned counsel appearing for the appellant, we do not find any reason to interfere with the compensation granted under any other heads, as the Tribunal had granted reasonable compensation under all the other heads. In the result, this appeal is allowed. The appellant is granted an amount of Rs.4,42,800/- as additional compensation. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till reaslisation. Since there is no dispute regarding the liability of the respondent Insurance company to indemnify the insured owner of the MACA 1222/2013 18 vehicle, the respondent Insurance Company is directed to deposit the additional said amount along with interest therein, within a period of two months from the date of receipt of a copy of this judgment. There is no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** ## **sd/ B.SUDHEENDRA KUMAR, JUDGE** _dl/14.9.2017_ _// True copy // PA to Judge_