M.A.C.A. No. 30 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939 MACA.No. 30 of 2013 () ----------------------OPMV 156/2009 of II ADDL.D.C. & ADDL.MACT,KOLLAM ## APPELLANTS/PETITIONERS: ------------------------------------------ ## 1. KARUNAKARAN SREEJU VILASAM @ SREEJA VILASAM, PINUKKANNOOR CHERRY, KOTTAMKARA VILLAGE, KOLLAM DISTRICT. 2. VIJAYAMMA W/O.KARUNAKARAN, SREEJA VILASAM, PINUKKANNOOR CHERRY, KOTTAMKARA VILLAGE, KOLLAM DISTRICT. 3. SREEJA D/O.KARUNAKARAN, SREEJA VILASAM, PINUKKANNOOR CHERRY, KOTTAMKARA VILLAGE, KOLLAM DISTRICT. ## BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENTS: ------------------------ ## 1. SUDHAKARAN S/O.JANARDHANAN, KUNNATHU THODIYIL VEEDU, EZHUKONE P.O., KOTTAMKARA VILLAGE, KOLLAM DISTRICT, PIN-691505. ## 2. THE MANAGING DIRECTOR KSRTC, THIRUVANANTHAPURAM, PIN-695023. R2 BY ADV. SMT.BIMALA BABY, SC, KSRTC R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC R2 BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.30 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of November 2017 ## JUDGMENT ## **C.T.Ravikumar J.** , This appeal is filed against the judgment and award dated 27.8.2012 in O.P.(M.V.) No.156 of 2009 passed by the Motor Accidents Claims Tribunal, Kollam. The appellants herein were the petitioners in the said claim petition. It was filed under Section 166A of the Motor Vehicles Act seeking compensation of Rs.7,00,000/- by the legal heirs of the victim of the accident involved in that case. Deceased Sri.Sreelal was riding a motor cycle bearing Reg.No.KL-2/4-385 through Ezhukone - Puthur M.A.C.A. No.30 of 2013 2 public road. At the place of accident, the said vehicle was knocked down by a K.S.R.T.C. bus bearing Reg.No.KL 15/3513, driven by the first respondent. On the way to hospital, he succumbed to the injuries sustained. The claim petition was filed under the above said circumstances. As per the impugned award, the Tribunal had granted a total compensation of Rs.3,75,500/- with interest at the rate of 9% per annum from the date of petition till the date of realisation. It is seeking enhancement of the quantum of compensation awarded by the Tribunal that the captioned appeal has been filed. 2. Heard. 3. The main grievance of the appellant is that the Tribunal had erroneously fixed the monthly income as also the multiplier, for the purpose of calculating compensation 3 M.A.C.A. No.30 of 2013 for the loss of dependency. In the claim petition, it was specifically averred that the deceased was a Commission Agent of a Furniture Mart and at the time of accident, he was aged 23 years. Going by the averments he was earning Rs.6,000/- per month. The Tribunal had fixed the monthly income notionally as Rs.5,000/-. The contention is that the Tribunal had virtually ignored Ext.A11 certificate issued from Noushad Furniture, Perumpazha while fixing the monthly income. In this context, it is to be noted that even going by the claim petition, the deceased was only a commission agent of a furniture mart. In the strict sense in commerce, commission means the order by which any traffics or negotiates for another; also, and much more frequently, the percentage given to factors or agents for transacting the business of others. In that sense, a M.A.C.A. No.30 of 2013 4 commission agent can be treated as an agent employed by his principal to sell or otherwise to negotiate with another in the matter of sale of his goods. Hence, a commission agent cannot be said to be a salaried person and in fact his income would depend upon the business canvassed by him. In the said circumstances, we do not find any reason to hold that the Tribunal had erred in fixing the monthly income of the deceased, notionally without giving credence to Ext.A11. At the same time, taking note of the fact that the deceased was only 23 years at the time of the accident and the accident in question had occurred on 3.6.2008, we are of the view that it is only just and reasonable for us to fix the monthly income of the deceased notionally for purpose of calculating dependency compensation as Rs.6,000/-. We do so. As regards the grievance against the M.A.C.A. No.30 of 2013 5 adoption of the multiplier, there is substance in the contention. The contention is that the Tribunal went wrong in taking the average age of the parents for the purpose of identifying the multiplier. In the light of the decision of the Apex court in **Sarla Verma v. Delhi Transport Corporation** [2010(2) KLT 802 (SC)], in a claim for compensation for death, the multiplier has to be taken with reference to the age of the deceased. As noticed hereinbefore, the deceased was aged 23 years at the time of accidental death. Going by the schedule in **Sarla Verma (supra)** , the multiplier applicable in this case, taking into account of the age of the deceased, is '18'. Since the deceased was a bachelor, in the light of the above said decision, 50% of his income has to be deducted towards his personal and living expenses. Evidently, the Tribunal had M.A.C.A. No.30 of 2013 6 also effected 50% of the income of the deceased while calculating compensation for loss of dependency, without assigning any reason therefor. In short, the compensation payable towards loss of dependency has to be re-assessed by substituting the revised monthly income and also the proper multiplier viz., 18, on such re-assessment the amount payable under that head will be Rs.6,48,000/(6000x12x18x½) The Tribunal had already granted an amount of Rs.3,30,000/-. Hence, the appellants are entitled to get an amount of Rs.3,18,000/- additionally thereunder. Towards loss of love and affection, the Tribunal had granted Rs.25,000/- Taking into account of the fact that the claimants are the parents and the younger sister of the deceased, we are of the view that it is on the lower side and hence, we are inclined to grant Rs.25,000/- additionally M.A.C.A. No.30 of 2013 7 under that head. Towards loss of estate and funeral expenses, the Tribunal had granted only Rs.5,000/- each, certainly they are on the lower side. We are granting Rs.10,000/- each additionally under those heads. Towards pain and suffering, the Tribunal had granted an amount of Rs.5,000/-. True that the deceased had lost his life on the way to the hospital. But, at the same time, it is a fact that he had to suffer excruciating pain for sometime. Hence, we are inclined to grant Rs.5,000/- more towards pain and suffering. In the light of the enhancement made by us, the appellants are entitled to get an additional compensation of Rs.3,68,000/- (Rupees three lakh sixty eight thousand only). The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till reaslisation. The 2[nd] respondent shall deposit the said M.A.C.A. No.30 of 2013 8 amount along with interest, within a period of three months from the date of receipt of a copy of this judgment. The amount shall be apportioned between the appellants in the ratio 30 : 50 : 20 respectively. This appeal is disposed of as above. There is no order as to costs.. sd ## **C.T.RAVIKUMAR, JUDGE** sd **B.SUDHEENDRA KUMAR, JUDGE** _dl/13.12.16_ _// True copy // PA to Judge_