Leena and others v Thanakamani N and Elanko and The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933 MACA.No. 2212 of 2011 (E) -------------------------------OP(MV).648/2007 of M.A.C.T OTTAPPALAM --------------------- APPELLANT(S)/PETITIONERS: --------------------------------- 1. MRS. LEENA, AGED 41 YEARS, - W/O.LATE BENNY, CHEMPADAMKALAM, PIRIVUSALA CHANDRA NAGAR (P.O), PALAKKAD. 2. ITHAPPIRI, AGED 71 YEARS, - S/O.PAILY, CHEMPADAMKALAM, PIRIVUSALA CHANDRA NAGAR (P.O), PALAKKAD. 3. MARY, AGED 66 YEARS, - D/O.ANNAMMA, CHEMPADAMKALAM, PIRIVUSALA CHANDRA NAGAR (P.O), PALAKKAD. 4. NITHIN B.ISSAC (MINOR), - S/O.(LATE)BENNY, D.O.B.(16.05.1999) REPRESENTED BY IST APPELLANT MOTHER MRS.LEENA AGED 41 YEARS, W/O.LATE BENNY, CHEMPADAMKALAM PIRIVUSALA, CHANDRA NAGAR (P.O), PALAKKAD. 5. NINI B.ISSAC (MINOR), S/O.(LATE)BENNY, D.O.B.(01.08.2006) REPRESENTED BY IST APPELLANT MOTHER MRS.LEENA AGED 41 YEARS, W/O.LATE BENNY, CHEMPADAMKALAM PIRIVUSALA, CHANDRA NAGAR (P.O), PALAKKAD. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) ## RESPONDENT(S)/RESPONDENTS: ------------------------------------- ## 1. THANAKAMANI N AGED NOT KNOWN, W/O.NACHIMUTHU, 109 PALANIAPPAN STREET, POLLACHI TALUK TAMIL NADU.642 001. (R.C.OWNER TN-38-Z-8338 TEMPO) MACA.No. 2212 of 2011 (E) -2- 2. ELANKO, AGED 28 YEARS, S/O.MOORTHY, 33/31 P.K.S.COLONY, OOTHUKADU ROAD POLLACHI, 642 001 TAMIL NADU.(DRIVER OF TN-38-Z-8338 TEMPO) 3. THE NEW INDIA ASSURANCE CO.LTD., BRANCH AT SREEVALLI BUILDING, ANIKKODE, CHITTUR PALAKKAD-678 001. (INSURER OF TN-38-Z-8338 TEMPO) 4. THE NEW INDIA ASSURANCE CO.LTD., - N.S.TOWER, NEAR STADIUM BUS STAND PALAKKAD.678 001. (INSURER OF KL-07-X-8791 JEEP) R3 BY SMT.M.HEMALATHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A. No.2212 of 2011 -----------------------------------------------Dated this the 10[th] day of February, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The claimants who preferred the claim on account of the death of one Benny in a road traffic accident occurred on 02/05/06 are the appellants. The claim was for an amount of ` 13,66,144/-. The learned Tribunal after considering the evidence, awarded a sum of ` 13,25,650/- under various heads. 2. Allegedly the deceased was travelling by a jeep and enroute it collided with a tempo van which was coming from the opposite side. The deceased who sustained grievous injuries succumbed to those injuries instantaneously. It is alleged that the deceased was aged only 40 years and was working as junior Supervisor in Milma earning a monthly salary of ` 9,126/-. The appellants are the wife, aged parents M. A. C. A. No.2212 of 2011 -2- and two minor children of the deceased. The appellants are challenging the adequacy of the compensation awarded by the learned Tribunal. 3. We have heard the learned counsel for the appellants as well as the learned counsel for the 3[rd] respondent Insurance Company. 4. The main argument advanced by the learned counsel for the appellants was that the learned Tribunal went wrong in limiting the compensation for loss of dependency to ` 13,14,150/- though the amount arrived at was ` 14,23,680/-. The aforesaid amount was arrived at fixing the monthly income of the deceased at ` 11,864/- adding 30% of the salary of the deceased taking into account the future prospects in his job relying on the principle laid down in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC). The multiplier 15 was adopted considering all relevant aspects. One third of the income was also deducted in consideration of the expenses which the deceased would have incurred had he been alive. M. A. C. A. No.2212 of 2011 -3- 5. In support of the argument advanced, the learned counsel for the appellants invited our attention to the decision of the Apex Court in Nagappa v. Gurudayal Singh (2003(1) KLT 115 SC) wherein it was held that under the Motor Vehicles Act there is no restriction that the Tribunal cannot award compensation amount exceeding the claim amount. It was observed that the function of the Tribunal is to award 'just' compensation which is reasonable on the basis of evidence on record. It was also observed that in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. 6. What can be discerned from the aforesaid decision is that a compensation, which is justifiable on the basis of evidence on record, cannot be denied to the claimant merely because the claimant failed to make a proper claim. 7. In the present case, the learned Tribunal following the principle in Sarala Verma's Case (cited supra) gave a hike of 30% in the monthly income of the deceased by M. A. C. A. No.2212 of 2011 -4- applying the rule of thumb, taking into account the future prospects in the job. Though we are of the view that it is slightly on the higher side, we do not propose to interfere with the same, in the absence of an appeal or cross objection by the insurance company. 8. The learned Tribunal so relied on the testimony of PW4, the General Manager and Managing Partner in charge of Milma, who deposed that the deceased was expected to reach up to the post of Manager (Procurement). Thus, the learned Tribunal fixed the monthly income of the deceased at ` 11,864/-, though he earned only a monthly salary of ` 9,126/- at the time of his death. 9. Though, there is no convincing evidence on record regarding the age at which the deceased would have attained promotion, had he been continuing in the job, the learned Tribunal adopted the uniform multiplicand of ` 11,864/- for the entire period of 15 years, which was taken as the multiplier. Thus, the figure ` 14,23,680/- was arrived at after deducting one third of the amount in consideration M. A. C. A. No.2212 of 2011 -5- of the expenses which the deceased would have incurred, had he been alive. This according to us was not at all justifiable and we are of the view that the learned Tribunal ought to have split up the entire period of 15 years and should have adopted two multiplicands i.e., one for prepromotion period and another for post promotion period for arriving at the quantum of compensation. Had it been done, the amount of compensation for loss of dependency would have been lesser than that was arrived at as per the calculation made by the learned Tribunal. 10. We do feel that the payment of the entire amount arrived at by the learned Tribunal would be an unjust enrichment. It is common knowledge that any wise investment would fetch interest at least at the rate of 10% per annum. We do note that the amount of ` 14,23,680/would fetch a monthly income more than the amount that was adopted as multiplicand. It is relevant to note that the deceased was earning only a monthly income (` 9,126/-) far below than the amount which was adopted as the M. A. C. A. No.2212 of 2011 -6- multiplicand. Hence, we feel that the learned Tribunal was perfectly justified in limiting the award amount to ` 13,14,150/- for the reason we have pointed out above. 11. On a consideration of the entire facts and circumstances of the case, we are of the definite view that the award does not call for an interference. 12. In the result, the Appeal fails and accordingly, it is dismissed. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns & krj/- //TRUE COPY// P.A. TO JUDGE M. A. C. A. No.2212 of 2011 -7-