MACA No. 3308 of 2014; MACA No. 169/2015 (Chaco Paulose & Chinnamma Chacko vs. Dilipkumar P.V. & Others)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939 MACA.No. 3308 of 2014 () ------------------------AGAINST THE AWARD IN OPMV 126/2012 of M.A.C.T.,ERNAKULAM DATED 16.08.2014 APPELLANT(S):CLAIMANTS ----------------------------- 1. CHACO PAULOSE, AGED 60 YEARS, S/O.PAULOSE, THADATHIL HOUSE, NECHOOR P.O, ERNAKULAM 686 664. 2. CHINNAMMA CHACKO, AGED 55 YEARS, W/O.CHACKO PAULOSE, THADATHIL HOUSE, NECHOOR P.O, ERNAKULAM 686 664. BY ADVS.SRI.SANTHOSH PETER (MAMALAYIL) SRI.P.N.ANOOP RESPONDENT(S):RESPONDENTS ----------------------------------- 1. DILIPKUMAR P.V, MANAGING DIRECTOR, M/S. OPAC ENGINEERING PVT. LTD, SREESILAM, ARAKKUNNAM P.O, ERNAKULAM 682 313. 2. SREEJITH D NAIR, AGED 19, S/O.P.V.DILEEPKUMAR, SREEKRISHNA VILASAM, EDAKKATUVAYAL P.O, ERNAKULAM DISTRICT. 682 313. 3. NATIONAL INSURANCE COMPANY LTD SECOND FLOOR, DAMODER CHAMBERS, STATUE JUNCTION, TRIPUNITHURA, ERNAKULAM- 682 301. 4. VINU K.THUDIYAN, AGED 21 YEARS, S/O.T.V.KURIAN, THUDIYAN HOUSE, KANDANAD P.O, TRIPUNITHURA, ERNAKULAM DISTRICT 682 305. (DRIVER OF MOTOR CYCLE NO.KL-07-AU-1493) 5. THE UNITED INDIA INSURANCE CO.LTD TRIPPUNITHURA ERNAKULAM DISTRICT. 682 301. R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN R5 BY ADV. SRI.MATHEWS JACOB (SR.) R5 BY ADV. SRI.P.JACOB MATHEW R5 BY ADV. SMT.PREETHY R.NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-06-2017, ALONG WITH MACA. 169/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ==========================** ## **M.A.C.A. Nos.3308 OF 2014 &169 OF 2015** **==========================** Dated this the 23[rd ] day of June, 2017 ## **JUDGMENT** _Ravikumar, J._ These appeals arise from the judgment and award dated 16.8.2014 in O.P.(MV).No.126 of 2012 passed by the Motor Accidents Claims Tribunal, Ernakulam. The former appeal has been preferred by the petitioners seeking enhancement of the quantum of compensation awarded by the Tribunal and the latter appeal has been preferred by the third respondent/the insurer of the offending vehicle involved in the accident, mainly challenging the adoption of the multiplier by the Tribunal while assessing compensation under the head 'loss of dependency'. The petitioners had filed the said claim petition under section 166 of the Motor Vehicles Act seeking a total compensation of Rs.30,00,000/- for the death of their son Sri. Ebin **M.A.C.A.Nos.3308/2014 & 169/2015** 2 Jacob in a motor vehicle accident that occurred on 25.5.2011. 2. Before the Tribunal, Exts.A1 to A8 were marked on the side of the petitioners. No oral evidence was adduced by both sides and on the side of the respondents, there was no documentary evidence as well. 3. After considering the rival contentions and the evidence on record, the Tribunal passed the impugned award granting an amount of Rs.7,03,000/- with interest @ 8% per annum from the date of the petition till realisation. It is feeling aggrieved by the said judgment and award, as aforesaid, that the captioned appeals have been filed. 4. Heard both sides. 5. A brief narration of facts is essential for the disposal of these appeals. On 25.5.2011, while the petitioners' son, Sri.Ebin Jacob, was travelling as a pillion rider on a motor cycle bearing Reg.No.KL07/AU-1493, ridden by the fourth respondent, from Vattukunnu to Mulanthuruthy, the offending vehicle which is a car bearing Reg.No.KL-39/B-6868 driven by the second respondent dashed **M.A.C.A.Nos.3308/2014 & 169/2015** 3 against the said motor cycle. The deceased sustained injuries and enroute to the hospital, he succumbed to the injuries. The petitioners claimed an amount of Rs.30,00,000/- as compensation for his death. 6. In the claim petition, it is averred that the deceased was a singer and was earning an amount of Rs.6,000/- per month. However, no evidence was adduced by the appellants to establish such averments regarding the occupation and income of the deceased. In such circumstances, the Tribunal fixed the monthly income of the deceased notionally as Rs.4,000/- and taking into account the age of the deceased, made an addition of 50% to the income reckoning the future prospects. With reference to the age of the deceased, the Tribunal adopted the multiplier as '16' for the purpose of calculating compensation for loss of dependency. Since the deceased was a bachelor, 50% of the income was deducted towards personal and living expenses. As noticed hereinbefore, the main contention of the third respondent/insurer is that the Tribunal had wrongly adopted the multiplier as '16'. According to the third respondent/insurer, the **M.A.C.A.Nos.3308/2014 & 169/2015** 4 multiplier ought to have been adopted by the Tribunal with reference to the age of the claimants who are the parents of the deceased. The contention is that since they are aged 60 years and 55 years respectively, the multiplier ought to have been fixed with reference to the average of their age. The said contention cannot be sustained in the light of the decisions of the Hon'ble Apex Court in **Sarla Verma** **v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** and also in **Munna Lal Jain v. Vipin Kumar Sharma** reported in **(2015)** **6 SCC 347.** In the said decisions, the Apex Court, in unambiguous terms, held that in a claim for compensation for death, the multiplier is to be adopted with reference to the age of the deceased. In the light of the decisions referred (supra), the contention of the third respondent/insurer that the Tribunal went wrong in adopting the multiplier cannot be upheld. 7. In the former appeal, the grievance of the petitioners is that the Tribunal erroneously fixed the monthly income of the deceased and thereby denied them the just compensation. In the claim petition, **M.A.C.A.Nos.3308/2014 & 169/2015** 5 it was averred that the deceased was a singer and he was earning a monthly income of Rs.6,000/-. The petitioners have failed to adduce evidence to establish the occupation and income of the deceased. When that be so, the Tribunal cannot be found fault with in fixing the monthly income notionally for calculation purpose. However, the question is whether the fixation of monthly income notionally as Rs.4,000/- requires interference. Evidently, Sri.Ebin Jacob was aged 31 years at the time of his accidental death. The Tribunal fixed the monthly income notionally as Rs.4,000/-. The accident occurred on 25.5.2011. While considering the adequacy or otherwise of the monthly income fixed by the Tribunal for calculation purpose, we are of the view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** can act as guidance. Even in the case of a coolie who met with an accident in the year 2004, the Apex Court notionally fixed the monthly income as Rs.4,500/-. Evidently, the deceased was maintaining a family **M.A.C.A.Nos.3308/2014 & 169/2015** 6 consisting himself and his parents. Therefore, the claim of the petitioners that the deceased was earning Rs.6,000/- as monthly income cannot be said to be unreasonable. In short, we do not find any reason to disbelieve the claim of the petitioners that the deceased was earning Rs.6,000/- per month in the year 2011. In such circumstances, we are inclined to re-fix the monthly income of the deceased notionally as Rs.6,000/-, for calculation purpose. 8. Then the question to be considered is whether an addition of 50% is to be made to the said income reckoning the future prospects. When the occupation of the deceased was not established, we are not in a position to treat the deceased as a salaried person or a self employed person. At best it can be taken that he was a manual worker. In such circumstances, the dictum laid down by the Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** for the purpose of making addition to the income could not be followed, as such. At the same time, we are of the view that the factors which persuaded the Hon'ble Apex Court in making an **M.A.C.A.Nos.3308/2014 & 169/2015** 7 addition to the income reckoning future prospects viz., cost of living, price index etc. and such other factors would have reflection in the case of persons eking their livelihood by engaging in other activities, as well. It is to be noted that in the case of such persons, there will not be any retirement on superannuation. As long as they are hale and hearty, they could continue to work. Taking into account all aspects, it will be just and proper to make an addition of 30% to the income so fixed. In that view of the matter, the monthly income of the deceased for calculation has to be taken as Rs.9,000/-. We have already upheld the fixation of multiplier by the Tribunal as '16'. Since the deceased was a bachelor, 50% has to be deducted towards personal expenses and living expenses. Taking into account such aspects and factors, the amount of compensation under the head 'loss of dependency' has to be re-assessed. On such re-assessment, the amount payable under the aforesaid head would be Rs.8,64,000/- (9000x12x16x½). The Tribunal has already granted a sum of Rs.5,76,000/- under that head. After deducting the said amount, the petitioners would be entitled to **M.A.C.A.Nos.3308/2014 & 169/2015** 8 get an additional compensation of Rs.2,88,000/- under the head 'loss of dependency'. On a perusal of the schedule of compensation given in the impugned award, it can be seen that the Tribunal had not granted any amount towards loss of estate. Evidently, no specific claim was made under that head. That cannot be a reason for not granting a conventional amount under the head 'loss of estate'. In such circumstances, we are inclined to grant Rs.5,000/- under that head. Evidently, the deceased breathed his last enroute to the hospital. In such circumstances, we are inclined to grant an amount of Rs.5,000/- towards pain and suffering. The nature of the injuries sustained by him would indicate that the dresses worn by him at the time of the accident must have been spoiled. In such circumstances, we are inclined to grant Rs.1,000/- towards damage to clothing. Under other heads, the petitioners have been awarded just and reasonable compensation. Evidently, we have, by this judgment, enhanced the quantum of compensation granted by the Tribunal. At the same time, we have interfered with the percentage of addition **M.A.C.A.Nos.3308/2014 & 169/2015** 9 made by the Tribunal to the monthly income of the deceased fixed for calculation purpose. In such circumstances, the appellants in the former appeal are entitled to get an additional compensation of Rs.2,99,000/-. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. The third respondent/insurer shall deposit the said amount within a period of two months from the date of receipt of a copy of this judgment. No order as to costs. Appeals are disposed of as above. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.Nos.3308/2014 & 169/2015** 10 The following corrections are carried out in the common judgment dated 23-06-2017 in MACA Nos.3308/2014 and 169/2015 as per order dated 07-03-2018 in I.A.No.3491/2017 in MACA No.3308/2014: 1. The figure “Rs.9000” occurring in the 9[th] line at page No.7 of the judgment is corrected and substituted as “Rs.7800/-” 2. The figures “Rs.8,64,000/- (9000x12x16x½)” occurring in the 15[th] line at page No.7 of the judgment are corrected and substituted as “Rs.7,48,800/- (Rs.7800x12x16x½)”. 3. The figure “Rs.2,88,000/-” occurring in the 1[st] line at page 8 of the judgment is corrected and substituted as “Rs.1,72,800/-”. 4. The figure “Rs.2,99,000/-” occurring in the 4[th] line at page 9 of the judgment is corrected and substituted as “Rs.1,83,800/- (Rupees One lakh eighty three thousand and eight hundred only)”. Sd/REGISTRAR (JUDICIAL) 11 ## **M.A.C.A.Nos.3308/2014 & 169/2015** **C.T. RAVIKUMAR, J.** **M.A.C.A.Nos.3308/2014 & 169/2015** 12 **JUDGMENT September, 2010**