MACA.No.1222 of 2011 (Against the Award in OPMV 101/2007 of MACT, Irinjalakuda dated 28-02-2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935** ## **MACA.No. 1222 of 2011 ( )** **-------------------------AGAINST THE AWARD IN OPMV 101/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 28-02-2011** **------** ## **APPELLANT/PETITIONERS:** - **----------------------** **1. PUSHKARAN, S/O.NARAYANAN, VALIYAPARAMBIL HOUSE, KUTTICHIRA DESOM & VILLAGE, KUTTICHIRA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **2. MANI, W/O.PUSHKARAN,VALIYAPARAMBIL HOUSE, KUTTICHIRA DESOM & VILLAGE, KUTTICHIRA P.O.** **3. IQBAL S/O.PUSHKARAN,VALIYAPARAMBIL HOUSE, KUTTICHIRA DESOM & VILLAGE,KUTTICHIRA P.O..** **4. LALCY, D/O.PUSHKARAN,VALIYAPARAMBIL HOUSE, KUTTICHIRA DESOM & VILLAGE, KUTTICHIRA P.O.** **BY ADVS.SRI.P.V.BABY** **SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** **-------------------------------** **1. LIZA ANTONY, W/O.ANTONY, AGED 2 YEARS THEETHAI HOUSE, KUTTICHIRA P.O., PIN 680724.** **2. JOSE A.P., AGED 32 YEARS, S/O.POULOSE, ALUKKA HOUSE, PULINKARA DESOM KUTTICHIRA VILLAGE, THRISSUR, PIN 680724.** **3. UNITED INDIA INSURANCE CO.LTD., SOUTH JUNCTION, CHALAKUDY, PIN 680307.** **R3 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** -----------------------------------------------------------M.A.C.A.No.1222 of 2011 -----------------------------------------------------------Dated this, the 15[th] day of November 2013 ## Judgment ## Ramakrishnan, J. The claimants in O.P.(M.V).No.101/07 before the Motor Accidents Claims Tribunal, Irinjalakuda, are the appellants herein. The appellants, who are the parents and major siblings of deceased Syamlal Pushkarji filed the OP claiming compensation for his death, which was caused on account of the negligent driving of a vehicle by the first respondent, owned by the second respondent and insured with the third respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.3,02,000/- on various heads as follows : MACA 1222/11 2 |**_Head_**|**_Amount ₹_**| |---|---| |**_Funeral expenses_**|**_4,000.00_**| |**_Transportation expenses_**|**_1,000.00_**| |**_Pain and sufferings_**|**_5,000.00_**| |**_Loss of dependency_**|**_272,000.00_**| |**_Loss of love and affection_**|**_20,000.00_**| |**_Total_**|**302,000.00**| Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have come before this court with the above appeal, claiming enhanced compensation. 2. We heard the learned counsel for the appellants and also the learned counsel for the insurance company. 3. The learned counsel for the appellants submitted that the deceased was aged 22 years and he was a graduate and working as a Marketing Manager in the Silver Storm Amusement Park, Athirapally and getting Rs.3,500/- per month as income and they have produced Ext.A11 certificate to prove this fact. But, the Tribunal has arbitrarily fixed the monthly income as Rs.2,000/-, which is palpably low. Further, the proper multiplier applicable to the age group of 22 years as per the decision in **Sarla Varma v. Delhi Transport Corporation** (2010 (2) KLT 802 (SC) is 18 and not 17 as taken by the Tribunal. The MACA 1222/11 3 amount awarded under the head pain and sufferings is also on the lower side. No amount was awarded under the head loss of estate. The amounts awarded under the head loss of love and affection is also on the lower side and the appellant is entitled to enhancement of compensation on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that the deceased was a bachelor and as per the decision in **Sarla Varma** 's case (supra), the Tribunal ought to have deducted half for his personal expenses instead of 1/3rd as done in this case and the multiplier is to be reckoned on the basis of the age of the dependants and not the age of the deceased in such cases. The total compensation awarded is just and proper and no interference is called for with the same at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellants was that the deceased was aged 22 years and working as Marketing Manager in the Silver Strom Amusement Park and getting Rs.3,500/- per month MACA 1222/11 4 as income and they have produced Ext.A11 to prove this fact. But, the certificate was not proved through the person, who issued the same. At the same time, considering the fact that the accident occurred on 14.10.2006 and he was a graduate aged 22 years, one can expect that he may be getting at least Rs.3,000/- per month as income and not as assessed by the Tribunal. So, we are inclined to enhance the monthly income of the deceased as Rs.3,000/- per month. There is some force in the submission made by the counsel for the appellants that the Tribunal has committed error in taking the multiplier. In view of the dictum laid down in the decision reported in **Amrit Bhanu Shali and others v. National Insurance Company Limited** and others (2012 ACJ 2002), followed by this Court in **Annamkutty v. United India Insurance Company** (2013(4) KLT 160), in the case of bachelors, it is the age of the deceased and not the age of the dependants that is to be reckoned for the purpose of fixing the proper multiplier.In view of the dictum laid down in **Sarla Varma** 's case (supra), the proper multiplier for the age group of 22 years as the deceased was, 18 and not 17. MACA 1222/11 5 There is equal force in the submission made by the counsel for the insurance company that being a bachelor and the actual dependants being the parents alone, the deduction ought to have been made for personal expenses to the extent of half and not 1/3rd as done by the Tribunal in view of the dictum laid down in **Sarla Varma** 's case (supra). If a re-calculation is made on that basis, the appellants will be entitled to get an additional compensation of Rs.3,24,000/- (3000 x 12 x 18 x ½) instead of Rs.2,72,000/- awarded by the Tribunal. The appellants will be entitled to get an additional compensation of Rs.52,000/- under that head and we award the same under that head. 7. The amount awarded under the head pain and sufferings is very low, which, we enhance to Rs.10,000/- from Rs.5,000/- awarded by the Tribunal. No amount has been awarded under the head loss of estate. Normally, a conventional amount will be awarded under that head. So, we award Rs.10,000/- under the head loss of estate. In spite of persuasive arguments made by the learned counsel for the appellants to enhance the compensation under other heads, we are not MACA 1222/11 6 impressed by the same as the amounts awarded by the Tribunal under other heads appear to be just and proper. In all, the appellants will be entitled to Rs.67,000/- over and above what has been awarded by the Tribunal, which the third respondent insurance company is liable to pay with 9% interest per annum from the date of claim petition till the date of payment. Since appellants 3 and 4 are majors, we are directing payment of the additional compensation to the parents alone, who are appellants 1 and 2. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. ## **S.SIRI JAGAN, JUDGE** ## **K.RAMAKRISHNAN,JUDGE** sta MACA 1222/11 7 MACA 1222/11 8