Maniraj and Others v. P.K. Saidalavi and The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944** **MACA NO. 2417 OF 2012** **AGAINST THE AWARD DATED 15.11.2010 IN O.P.(MV)NO.981/2009** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS :** **1 MANIRAJ AGED 49 YEARS S/O.RARICHAN, RESIDING AT POTHOOTTIKANDI HOUSE, P.O.ELATHUR, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** **2 SMITHA AGED 39 YEARS W/O.MANIRAJ, RESIDING AT POTHOOTTIKANDI HOUSE, P.O.ELATHUR, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** **3 VYSHNAVI (MINOR), AGED 13 YEARS D/O.MANIRAJ, RESIDING AT POTHOOTTIKANDI HOUSE, P.O.ELATHUR, KOZHIKODE TALUK, KOZHIKODE DISTRICT. (3RD APPELLANT REPRESENTED BY MOTHER AND GUARDIAN 2ND APPELLANT).** ## **BY ADV SRI.K.MUHAMMED SALAHUDHEEN** ## **RESPONDENTS/RESPONDENTS :** **1 P.K.SAIDALAVI S/O.KUTTIALI, 9/424, PULIKKALAKATH KANNAPPANTHODI, FEROKE, KOZHIKODE DISTRICT, PIN-673 631.** MACA No.2417 of 2012 **==> picture [46 x 8] intentionally omitted <==** **2 THE NEW INDIA ASSURANCE COMPANY LTD., SILVER PLAZA I.G.ROAD, CALICUT-4.** **R2 BY ADV RENIL ANTO KANDAMKULATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2417 of 2012 ..3.. ## **MACA No.2417 of 2012** ## **-----------------------------------------------** ## **J U D G M E N T** This appeal is at the instance of the petitioners in O.P.(MV)No.981 of 2009 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellants as well as the learned Standing Counsel for the insurance company. 3. Brief facts of the case are as follows: Consequent on the death of one 'Vishnu' aged 13 years, who was studying in 8[th] standard at the time of accident, the parents and minor sibling approached MACA No.2417 of 2012 **==> picture [46 x 8] intentionally omitted <==** the Tribunal and pressed for granting compensation to the tune of Rs.2,50,000/- on the ground that the above said Vishnu died in an accident occurred on 15.11.2008 at about 7.00 a.m., while he was pedaling his cycle on the public road near Pavangad junction and when he was hit down by a car bearing Registration No.KL-11-Z2627 came from Calicut side driven by the first respondent, owner cum driver of the car. 4. R1 was set ex-parte by the Tribunal. 5. R2, the insurance company filed written statement disputing the accident and negligence, while admitting policy. Quantum also was disputed. 6. The Tribunal adjudicated the claim, acting on documentary evidence marked as Exts.A1 to A6 and Ext.C1. No evidence let in by the respondents. Finally, MACA No.2417 of 2012 **==> picture [46 x 8] intentionally omitted <==** Rs.1,50,300/- was granted as compensation along with 7% interest and Rs.2,000/- as cost. 7. While assailing award, it is submitted by the learned counsel for the appellants that the Tribunal wrongly assessed the award and wrongly fixed the notional income at Rs.15,000/-. The Tribunal applied '18' as the multiplier. 8. The learned counsel placed a decision of the Apex Court reported in [(2014) 1 SCC 244], **Kishan Gopal and Another v. Lala and Others.** The said case, while considering the case of a minor aged 10 years, the Apex Court after following the ratio in [(2001) 8 SCC 197], **Lata Wadhwa v. State of Bihar** applied multiplier '15' and fixed the notional income at Rs.30,000/- without any deduction. The learned counsel MACA No.2417 of 2012 **==> picture [46 x 8] intentionally omitted <==** for the appellants pressed for calculating compensation based on the ratio in **Kishan Gopal** 's case (Supra). After dictating the case, he also placed a latest decision of the Apex Court reported in [2022 ACJ 166], **Kuruvan Ansari and another v. Shyam Kishore Murmu and another** . In this decision, the Apex Court held that we deem it appropriate to take notional income of the deceased at Rs.25,000/- per annum. Accordingly, when the notional income is multiplied with applicable multiplier '15', as prescribed in Schedule II for the claims under Section 163-A of the Motor Vehicles Act, 1988, it comes to Rs.3,75,000/- (Rs.25,000xmultiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs.40,000/- each towards loss of filial consortium and Rs.15,000/- towards funeral MACA No.2417 of 2012 ..7.. expenses. Thus, the appellants are entitled to the following amounts towards compensation: (a) Loss of dependency Rs.3,75,000 Rs.80,000 Rs.15,000 - Total Rs.4,70,000/ (b) Loss of filial consortium(Rs.40,000x2) (c) Funeral expenses 9. A Division Bench of this Court in the decision reported in [2016(1) KLT 704], **New India Assurance Co.Ltd. v. P. Vijayan** considered the compensation payable in cases of death under Sections 166 and 163A of Motor Vehicles Act in cases of minors. Thereafter, it was held that proper multiplier is '15' relying on the decision reported in [2010 (2) KLT 802], **Sarla Verma v. Delhi Transport Corporation** . Similarly, this Court considered the application of deduction in cases of minor. It was held that deduction MACA No.2417 of 2012 **==> picture [46 x 8] intentionally omitted <==** towards the probable personal expenses should have been 1/3[rd] or 50%, as contended by the insurance company. It was held further that, in order to fill up the lacuna in **Sarla Verma** 's case(Supra) with regard to the multiplier for children upto 15 years, the three number Bench of the Apex Court held in [2013 KHC 4253], **Reshma Kumari and Others v.Madan Mohan and Another,** this Court considered Rs.3,000/- as the monthly income of the minor aged 13 years, who was a student and 1/3[rd] deduction was made. Since the learned counsel for the appellants pressed for following the ratio in **Kuruvan Ansari'** s case(Supra), I am inclined to follow the same. Following the ratio in **Kuruvan Ansari'** s case(Supra), the compensation in this case also requires re-calculation. Therefore, MACA No.2417 of 2012 ..9.. ## compensation is re-calculated as under; 25,000x15= **3,75,000/-** is granted under the head 'loss of dependency income'. 10. Apart from that, the claimants 1 and 2 are entitled to get loss of consortium to the tune of **Rs.80,000/-** at the rate of Rs.40,000/- each and **Rs.15,000/-** towards funeral expenses, following the ratio in **Kuruvan Ansari'** s case(Supra). In the result, this appeal is allowed. It is ordered that the appellants are entitled to get total compensation to the tune of **Rs.4,70,000/-** (Rupees Four lakh Seventy Thousand only) at the rate of 7% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 370 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.2 of 2012 dated 07.12.2021. MACA No.2417 of 2012 ..10.. It is noticed that court fee for Rs.2,50,000/- alone was paid by the appellants and they are liable to pay court fee for the enhanced compensation to the tune of Rs.2,20,000/-. Therefore, the insurance company is directed to deposit Rs.2,200/- in the name of M.A.C.T., Kozhikode as additional court fee by a separate cheque. Further, the insurance company is directed to deposit the balance amount in the name of the appellants in the proportion 50:35:15, within two months from today and on deposit, the appellants are at liberty to release the same. Sd/- **A.BADHARUDEEN, JUDGE** rkj