MACA.No. 1721 of 2005 (D)

# 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 THURSDAY, THE 23RD DAY OF FEBRUARY 2012/4TH PHALGUNA 1933 MACA.No. 1721 of 2005 (D) --------------------------------OP(MV).1809/2000 of M.A.C.T., MANJERI ---------------- APPELLANT(S)/PETITIONER:: -------------------------------- 1. VEERANKUTTY, S/O. SAIDALAVI C.V., AGED 48 YEARS, CHEDUPALLIYALIL HOUSE, VIP ROAD MANJERI COLLEGE P.O., MANJERI. 2. M.A. LAILA, W/O. C. VEERANKUTTY, AGED 43 YEARS, VIP ROAD, MANJERI COLLEGE MANJERI. BY ADVS.SRI.IMTHIYAZ AHAMED SRI.SHIRAZ ABDULLA RESPONDENT(S): -------------------- 1. ABDUL NAZAR, S/O. MOHAMMED, ADHIKARATHIL HOUSE, KARUVAMBRAM WEST P.O. MANJERI. (DRIVER). 2. MUSLIYAR MOHAMMED, MOOCHIKKANDI HOUSE, MELMURI P.O. MALAPPURAM DISTRICT. (OWNER). 3. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, ARAFA BUILDING, COURT ROAD MANJERI. R3 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.1721 of 2005 -----------------------------------------------Dated this the 23[rd] day of February, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The appellants are the unfortunate parents of an eighteen year old student by name Yasser who succumbed to the injuries sustained by him in a road traffic accident occurred on 13/07/2000. 2. Allegedly while the deceased was riding a motorbike he was hit down by a pick up van which was coming from the opposite direction. Against the claim of ` 10 lakhs, the learned Tribunal awarded a sum of ` 1,25,500/- under various heads finding that the accident occurred due to the combined negligence of the driver of the pick up van as well as the deceased, the contribution of the deceased being 25%. Aggrieved by the finding regarding the negligence and the inadequacy of compensation, the appellants have come M. A. C. A No.1721 of 2005 -2- up in appeal. 3. We have heard the learned counsel for the appellants and the learned counsel for the 3[rd] respondent Insurance Company. We have also perused the impugned award. 4. The learned counsel for the appellants made a frontal attack on the finding of the Tribunal that the accident had occurred due to the combined negligence of the driver of the pick up van as well as the deceased. It was contended by the learned counsel for the appellants that though there was no negligence on the part of the deceased the learned Tribunal has deducted 25% of the amount awarded towards loss of dependency on account of the negligence of the deceased. 5. The learned counsel for the 3[rd] respondent per contra inviting our attention to Ext.A4 Scene Mahazar would submit that the deceased was on the wrong side at the time of the accident. A copy of the Scene Mahazar was made available M. A. C. A No.1721 of 2005 -3- for our perusal at the time of hearing. The Scene Mahazar would reveal that the road at the accident spot is lying in the east west direction. Allegedly the deceased was proceeding from west to east and the pickup van was coming from east to west. The Scene Mahazar would reveal that the accident had occurred on the northern half of the road. Thus what could be discerned from the contents of the Scene Mahazar is that deceased was on the wrong side. However, the police after detailed investigation laid charge against the driver of the pick up van. Thus on a totality of the evidence, the learned Tribunal has arrived at the finding that the accident had occurred due to the combined negligence of the driver of the pick up van as well as the deceased at the ratio 3:1. We see no justifiable reason to interfere with the said finding. 6. For computation of the compensation for loss of dependency, the notional income of the deceased was fixed at ` 15,000/- per year. It was pointed out that since the M. A. C. A No.1721 of 2005 -4- accident had occurred in the year 2000, the Tribunal should have adopted a higher income as multiplicand to arrive at a compensation for loss of dependency. It was also pointed out that the deceased had only aged 18 and he was doing his plus one course. According to the learned counsel for the appellants, the deceased was good at studies. As the accident had occurred in the year 2000, we are of the definite view that the notional income of the deceased would have been fixed at ` 2,500/- per month. We also note that the learned Tribunal has committed a mistake in deducting only one third of the amount awarded in consideration of the expenses which the deceased would have incurred for maintaining himself had he been alive. Applying the principle laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC) one half of the amount should have been deducted towards personal expenses of the deceased as the deceased was unmarried. The Tribunal had adopted the correct multiplier 15 which M. A. C. A No.1721 of 2005 -5- was applicable to the age group of the mother who is the younger claimant. We note that the first appellant who is the father of the deceased was aged 43 years and the second appellant who is the mother of the deceased was aged 38 years at the time of the accident. When the compensation for loss of dependency is re-calculated fixing the notional monthly income of the deceased at ` 2,500/- adopting the multiplier 15 and after deducting one half in consideration of the personal expenses that would have been incurred by the deceased the amount of compensation for loss of dependency would come to ` 2,25,000/-. The learned Tribunal has awarded only a sum of ` 1,25,500/- as compensation for loss of dependency after deducting 25% for contributory negligence. Thus, we find that the appellants are entitled to get an additional sum of ` 1 lakh towards compensation for loss of dependency. 7. Towards funeral expenses only a sum of ` 2,000/was awarded by the Tribunal. We are of the view that the M. A. C. A No.1721 of 2005 -6- appellants are entitled to get an additional sum of ` 3,000/for funeral expenses. It is in evidence that the deceased was the only son of the appellants. This is not disputed at all. However, the learned Tribunal has not awarded any sum for compensation for loss of love and affection. Considering the age of the parents and also considering the fact that the deceased was the only son, we award a sum of ` 30,000/- for compensation for love and affection. Thus, the aforesaid calculation would take us to the conclusion that the appellants are entitled to an additional sum of ` 1,33,000/-. 8. However, as we have upheld the finding of the learned Tribunal that the accident had occurred due to the combined negligence of the driver of the pick up van as well as the deceased, the contribution of the deceased being 25%, the additional compensation arrived at as above shall stand reduced to 75%, which will come to ` 99,750/-. Thus, the appellants are entitled to get an additional sum of ` 99,750/- together with interest at the rate of 7% per M. A. C. A No.1721 of 2005 -7- annum from the date of claim petition till realisation. 9. The appeal is allowed. The award shall stand modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE