MACA No. 2377 of 2007 (OPMV.3863/1990 of M.A.C.T., Perumbavoor)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 30TH DAY OF MARCH 2012/10TH CHAITHRA 1934 MACA.No. 2377 of 2007 ( ) ------------------------OPMV.3863/1990 of M.A.C.T.,PERUMBAVOOR APPELLANTS/APPELLANTS/PETITIONERS 2 TO 10: ------------------------------------------ 1. JANAKI, AGED 75 YEARS, W/O. LATE VELAYUDHAN 2. SATHI, AGED 53 YEARS, D/O. LATE VELAYUDHAN. 3. OMANA, AGED 51 YEARS, D/O.LATE VELAYUDHAN. 4. SUKUMARAN, AGED 49 YEARS, S/O LATE VELAYUDHAN. 5. NALINI, AGED 47 YEARS, D/O.LATE VELAYUDHAN. 6. THANKAM, AGED 45 YEARS, D/O.LATE VELAYUDHAN. 7. VIJAYAN, AGED 43 YEARS, S/O.LATE VELAYUDHAN. 8. SASI, AGED 41 YEARS, S/O.LATE VELAYUDHAN. 9. SANTHA, AGED 41 YEARS, D/O.LATE VELAYUDHAN ALL APPELLANTS ARE RESIDING AT KOZHIKKATTIL HOUSE S.N.PURAM, THAIKKATTUKARA, ALWAYE - 6. BY ADVS.SRI.ANIL S.RAJ SMT.MANJUSHA MOHANDAS SMT.ANILA PETER RESPONDENTS/RESPONDENTS: -------------------------- 1. M.J.XAVIER, S/O.JOHN, MATTUPURATH VEEDU, CHOTTANIKKARA KARA, CHOTTANIKKARA. 2. KUTTAN, S/O.DANIEL, KANNANKOTTU VEEDU, KANDANADU KARA, (VIA) THIRUVANKULAM. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, TRIPUNITHURA. BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **K.HEMA & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * *** M.A.C.A.No.2377 of 2007 ---------------------------------------Dated this the 30[th] day of March 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** Appellants are the claimants in O.P.(M.V) No.3863/1990 of the Motor Accidents Claim Tribunal, Perumbavoor. They are the legal heirs of late Sri.Shanmughan who died in a motor vehicle accident involving collusion of two vehicles, on 08/09/1990. It is alleged that the accident occurred on account of the rash and negligent act of the 2[nd] respondent in driving the bus bearing Reg.No.KEE-4944 owned by the 1[st] respondent. The 3[rd] respondent is the insurer of the said vehicle. The 1[st] respondent admitted the accident, but denied the negligence on the part of the 2[nd] respondent. The 2[nd] respondent remained ex parte. The 3[rd] respondent admitted the policy, but denied the negligence of the 2[nd] respondent. Before the tribunal, Exts.A1 to A6 were marked. No oral evidence was adduced by either parties. 2 M.A.C.A.No.2377 of 2010 2. The claimants claimed a total amount of Rs.3,00,000/under different heads. But the Tribunal awarded only an amount of Rs.69,200/- under the following heads: |||**_Rupees_**| |---|---|---| |Loss of dependency||48,000/-| |Pain and suffering||5,000/-| |Transportation expenses||2,000/-| |Funeral expenses||2,000/-| |Damage to clothing||200/-| |Love and affection||10,000/-| |Loss of estate||2,000/-| ||**Total**|**69,200/-**| 3. The Tribunal further ordered interest @ 12% per annum from the date of application till 31/12/1995, 9% from 01/01/1996 to 31/12/2000 and thereafter at 7% per annum till the date of realisation from respondents 1 to 3 jointly and severally. Insurance company was directed to deposit the amount. 4. The claimants, being dissatisfied with the aforesaid award, have filed the appeal. The main contention urged by the learned counsel for the appellants are as follows: i) Income of the deceased was not properly fixed by the Tribunal. 3 M.A.C.A.No.2377 of 2010 - ii) Multiplier fixed by the Tribunal as 5 is wrong. Hence the amount awarded towards loss of dependency is to be enhanced. - iii) That the amount awarded towards pain and suffering, love and affection, loss of estate etc. are not commensurate with the damage suffered. 5. It is seen from records that the claim petition was originally settled between the parties and on the basis of an application filed by the 3[rd] respondent as I.A.No.1452/1994, the award was set aside which was later confirmed by this Court as per judgment dated 25/2/2005 in O.P.No.9992/1995. 6. The point to be determined in this case are as follows: - a) Whether the monthly income of the appellant as fixed by the Tribunal is correct? - b) Whether the Tribunal went wrong in applying 5 as the multiplier? - c) Whether the amount awarded towards pain and suffering, love and affection, loss of estate etc. are commensurate with the injury suffered. 4 M.A.C.A.No.2377 of 2010 7. Admittedly, the petitioner was aged 25 years and was a bachelor. No evidence was seen adduced to show that he had any particular income during the relevant time. However, in view of the fact that there was an allegation that the petitioner was an L.I.C agent and was earning Rs.2,000/- per month, the Tribunal fixed the notional monthly income as Rs.1,200/- per month. This is an accident which occurred in 1990 and considering the nature of employment and the income that could be derived during the relevant time, we are of the view that fixation of monthly income at Rs.1,200/- is proper and does not require any modification. Hence the Tribunal is justified in deducting one third for personal expenses and fixing Rs.800/per month as contribution to his family, for the purpose of computing loss of dependency. 8. The next question is whether the multiplier adopted for ascertaining the loss of dependency is proper. It is held in **National Insurance Co.Ltd v. Shyam Singh & Othrs. [2011 (7) S.C.C 65]** relying upon **Sarla Verma v. Delhi Transport Corporation [2009(6) S.C.C 121]** that the average of the age of the parents is to be taken for fixation of multiplier of an 5 M.A.C.A.No.2377 of 2010 unmarried person. The father of the deceased was aged 68 years and mother was aged 58 years during the relevant time and considering the multiplier that are normally adopted for a person above 58 years and a person above 68 years, we feel that it is reasonable to fix the multiplier in this case as 7 which would render justifiable award to the claimants. Computing the multiplier at 7, the loss of dependency would be Rs.67,200/(Rs.800/- x 12 x 7). Therefore on that count, claimants would be entitled for an additional compensation of Rs.19,200/-. 9. In regard to pain and suffering, transportation and funeral expenses, damage to clothing, love and affection, loss of estate etc., we do not think that the compensation awarded on these counts are in any way unreasonable. 10. Hence the appellant is entitled for a further amount of Rs.19,200/- as per the details shown below: Loss of dependency **Rs.19,200/-** (Rs.67,200/- minus Rs.48,000) In the result, a) This appeal is allowed in part. b) The appellants are allowed to recover a further amount of **Rs.19,200/-** (Rupees 6 M.A.C.A.No.2377 of 2010 Nineteen thousand two hundred only) in addition to the amount already awarded by the Tribunal, with interest at the rate of 7% per annum from the date of petition till realisation. - c) The 3[rd] respondent is directed to deposit the amount before the Tribunal. ## **(K.HEMA, JUDGE)** **(A.M.SHAFFIQUE, JUDGE)** jsr //True Copy// PA to Judge M.A.C.A.No.2377 of 2010 7 8 M.A.C.A.No.2377 of 2010 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010