Madhu Sudan and Anne Madhu v Thankachan and Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 MACA.No. 382 of 2008 ( ) -----------------------OPMV.1652/1999 of MACT,PATHANAMTHITTA APPELLANT(S)/PETITIONERS:: ------------------------- 1. MADHU SUDAN, KALLIKKADU HOUSE, PUTHUMALA P.O., PATHANAMTHITTA DISTRICT. 2. ANNE MADHU, KALLIKKADU HOUSE, PUTHUMALA P.O., PATHANAMTHITTA DISTRICT. BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENT(S)/RESPONDENTS:: --------------------------- 1. Y.THANKACHAN, THONATHU PUTHEN VEEDU, KANNAMKODE, ADOOR, PATHANAMTHITTA DISTRICT. 2. ORIENTAL INSURANCE COMPANY LTD., PUNALUR BRANCH. R1 BY ADV. SRI.P.K.SOYUZ THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.HEMA & P.S.GOPINATHAN, JJ. ---------------------------------------------------MACA No.382 of 2008** **---------------------------------------------------Dated this the 11th day of September, 2012** ## **Judgment** ## **Hema, J.** This appeal is filed by parents of deceased Ultsa who met with a motor accident while she was studying in the 4[th] standard in the Central School, Adoor. A petition was filed under Section 166 of the Motor Vehicles Act ('M.V.Act', for short) by her parents before the Motor Accidents Claims Tribunal ('the Tribunal', for short) claiming a total amount of compensation of Rs.4 lakhs from the respondents 1 and 2 who are the driver-cum-owner and the insurance company. 2. The 1[st] respondent was set ex parte before the Tribunal. The 2[nd] respondent filed written statement and disputed the accident and various other facts such as the negligence of the driver, the entitlement for claim as legal heirs, liability of 2[nd] respondent for payment of compensation etc. No oral evidence was adduced by both sides. On the side of the appellants, Exts.A1 to A12 were marked. MACA 382/08 2 3. On consideration of the evidence the learned Tribunal found that the appellants are entitled for Rs.1,50,000/- towards loss of future dependency/loss of estate. Towards funeral expenses, pain and suffering, love and affection etc., various other amounts were also awarded. A total amount of Rs.1,75,000/- was awarded with 7.5 % interest. This appeal is filed challenging the quantum of compensation. 4. Heard. The only point arise for consideration is whether the appellants are entitled for enhanced compensation. Learned counsel for appellants argued that the appellants are entitled to get compensation towards “loss of life”. The deceased is aged 9 years and she was a bright student as revealed from the records and the impugned award itself. Therefore, some amount is to be given towards loss of life. 5. On going through the impugned award, we are of the view that since compensation is already granted under the head loss of dependency/loss of estate at Rs.1,50,000/- on multiplier method, in the case of death of a child aged 9 years, no further amount need be given for loss of life, as requested. It can also be seen that towards loss of love and affection an amount of MACA 382/08 3 Rs.10,000/- was granted and towards loss of dependency/loss of estate Rs.1,50,000/- was given. It is clear from the impugned award that the learned Tribunal was taking into account the loss sustained by the appellants by virtue of the death of their 9 year old child while awarding Rs.1,50,000/- under the head of loss of dependency/loss of estate. No amount was actually claimed under the head “loss of life”. 6. Learned counsel for the appellants argued that there is a mistake committed by the Tribunal in adopting the multiplier at 15. It was pointed out that learned Tribunal itself has found 16 as the multiplier, taking into account of the age of the parents. But the age of the deceased was considered for fixing the multiplier and thereby 15 was fixed as the multiplier. Based on this, a compensation of Rs.1,50,000/- was awarded towards loss of future dependency/loss of estate, taking Rs.15,000/- as notional annual income and deducting one-third for maintenance and personal expenses. The multiplicand adopted is Rs.10,000/-. 7. It is also argued in the light of the decision in **U.P.S.R.T.C. v. Krishna Bala** [(2006) 3 SCC(Cri) 90] that for assessing compensation the choice of the multiplier is to be MACA 382/08 4 determined by the the age of the deceased or that of the claimants whichever is higher. On going through the impugned award, it is clear that multiplier is not adopted as laid down in the decision cited by the learned counsel. The relevant portion from the above decision is extracted as hereunder: “The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed over the period for which the dependency is expected to last.” 8. On consideration of the dictum laid down in the decision cited above, we are of the view that the age of the claimants being on the higher side compared to the age of deceased, the higher age has to be adopted for determining the multiplier. Whether the age of the claimants is adopted to assess compensation, the appropriate multiplier is 16. Therefore, towards loss of dependency/loss of estate the appellants will be MACA 382/08 5 entitled to get Rs.1,60,000/- (Rs.10,000 x 16). 9. Learned counsel for appellants argued that interest may be enhanced. The interest awarded is 7.5%. We do not think that any increase in the interest is required, since the interest rate is only reasonable. Hence the following award is passed: The 2[nd] respondent is directed to deposit Rs.16,000/- with 7.5% interest per annum from 7.12.1999 till realisation as additional compensation to claimants. The amount will be deposited within two months from the date of receipt of copy of this award, failing which the amount will bear 9% interest per annum. This appeal is allowed. ## **K.HEMA, JUDGE.** ## **P.S.GOPINATHAN, JUDGE.** srd MACA 382/08 6 MACA 382/08 7