M.K. Pathu and others v. The Managing Partner, Bosco Travels & others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934** **MACA.No. 1964 of 2008 ( ) ------------------------OPMV.2183/2002 of M.A.C.T.,PERUMBAVOOR APPELLANT(S)/APPELLANTS/PETITIONERS:** **----------------------------------** **1. M.K.PATHU, W/O. ALIYAR, METHARUKUDY HOUSE, CHEMBIRAKKY, SOUTH VAZHAKKULAM KUNNATHUNAD TALUK, ERNAKULAM DISTRICT.** **2. MUJEEB RAHMAN, S/O. ALIYAR, METHARUKUDY HOUSE,CHEBIRAKKY, SOUTH VAZHAKKULAM KUNNATHUNAD TALUK, ERNAKULAM DISTRICT.** **3. THAHIRA, D/O. ALIYAR, MEHARUKUDY HOUSE, CHEMBIRAKKY, SOUTH VAZHAKKULAM, KUNNATHUNAD TALUK ERNAKULAM DISTRICT.** **4. NADHEERA, (MINOR), AGED 16 YEARS, D/O. ALIYAR, METHARUKUDY HOUSE, CHEMBIRAKKY, SOUTH VAZHAKKULAM, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, REPRESENTED BY GUARDIAN AND NEXT FRIEND MOTHER M.K.PATHU.** **BY ADV. SRI.M.P.MOHAMMED ASLAM** ## **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. THE MANAGING PARTNER, BOSCO TRAVELS, KEEZHUMAD, ALUVA,ERNAKULAM DISTRICT.** **2. SAJIKUMAR, S/O. AYYAPPAN, CHIRAYIL HOUSE PANAMKUZHY, KOMBANAD, ERNAKULAM DISTRICT.** **3. M/S. NATIONAL INSURANC COMPANY LIMITED.** - **ALUVA DVISIONAL OFFICE, PUMP JUNCTION, ALUVA.** **4. ALIYAR, S/O. PAREED, AGED 48 YEARS, METHARUKUDY HOUSE, CHEMBARAKKY, SOUTH VAZHAKKULAM, ERNAKULAM DISTRICT.** **BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. HEMA & P.S. GOPINATHAN, JJ.** ...................................................... M.A.C.A.NO.1964 OF 2008 ...................................................... Dated this the 10[th] day of September, 2012 ## **JUDGMENT** ## **Hema, J.** Deceased Pareed Kunju is the sole earning member of the family consisting of his mother and siblings who are appellants 1 to 4. He died in a motor accident, consequent to the injury sustained in the accident. A claim petition was filed by his mother and three siblings before the Motor Accidents Claims Tribunal ('the Tribunal', for short) under Section 166 of the Motor Vehicles Act ('the MV Act', for short) claiming a total amount of Rs.4,51,700/- from respondents 1 to 3 who are the owner, driver and insurer of the vehicle. Fourth respondent is the father of the deceased, who is living separately. 2. The claim petition was jointly tried with other petitions and both oral and documentary evidence was adduced. The Tribunal on consideration of the contentions and evidence adduced in this case found that the appellants are entitled to get Rs.1,71,890/-. The 1[st] appellant is entitled to get 50% and the 4[th] respondent is found to be entitled to get 20% of the : 2: ## M.A.C.A.NO.1964 OF 2008 compensation. Remaining 30% was ordered to be divided equally among claimants 2 and 3. The 3[rd] respondent was directed to produce separate cheques towards compensation. 3. The appellants are challenging the quantum of compensation awarded and this appeal is filed only for enhancement. Heard both sides. Perused the records. The only point for consideration is whether the appellants are entitled to get enhanced compensation. 4. According to the appellants, the calculation of compensation for loss of dependency by learned Tribunal is wrong. It was pointed out that the compensation was calculated by splitting the compensation for 3 years and 12 years, on the basis of different multiplicands. In paragraph-11 of the impugned award, reasons are also shown for calculating the compensation for 3 years and 12 years differently on the basis of different multiplicands. According to the learned counsel for the appellants, such calculation is not legally acceptable. 5. Learned counsel also argued that the amount taken as Rs.2,000/- as monthly income of the deceased is on the lower side. The appellants have claimed Rs.4,500/- as monthly : 3: ## M.A.C.A.NO.1964 OF 2008 income the deceased being a lorry driver. The accident happened while he was driving the lorry. He was aged 25 years at the time of death and he was getting Rs.4,500/- as monthly income, it is submitted. Learned counsel for the 3[rd] respondent argued that in the absence of any evidence, learned Tribunal has correctly fixed Rs.2,000/- as notional monthly income. Learned Tribunal has also deducted one third of his income for computing the compensation, which is as per law, it is submitted. 6. On hearing both sides and going through the impugned award and the records, we find that in a case of this nature, learned Tribunal can fix notional monthly income especially in the absence of any evidence. The appellants have not produced any evidence to prove the income of the deceased. Hence, the income was notionally fixed at Rs.2,000/- as on the date of accident which occurred in 2002. It cannot be said that the amount is on the lower side especially in the absence of evidence. 7. After deducting one third towards personable expenses which is permissible under law, the multiplicand will : 4: ## M.A.C.A.NO.1964 OF 2008 be Rs.1,335/-. Learned counsel for the appellants argued in the light of the decision reported in **Sumathikutty v. Manoj** (2011 (4) KLT 304) of the Division Bench of this Court that the multiplier is to be fixed at 18, taking into account the age of the deceased. Learned counsel for the 3[rd] respondent however submitted that such multiplier cannot be adopted in this case taking into account the age of the mother, in the light of the decision reported in **Managing Director, TNSTC Ltd. v. K.I. Bindu** (2005 (8) SCC 473). It is held therein that the choice of the multiplier is determined by the age of the deceased or that of the claimant which ever is higher, in ascertaining the loss of dependency. There is no reason why this method should be departed from. 8. On hearing both sides and on perusal of the records, we find that since age of the mother is taken into account for fixing the multiplier which is higher than the age of the deceased, there is no reason why any further deduction is to be made while fixing multiplicand for different period. The amount notionally fixed at Rs.2,000/- is in the year 2002. The deceased being 25 years old at the time of death, it is also : 5: ## M.A.C.A.NO.1964 OF 2008 reasonable that, it is likely that, he would earn more income had he been alive. Therefore, on a balancing, there is no justification for deducting any amount for a different period in respect of multiplicand. Rs.1,335/- itself can be fixed as the multiplicand for computing the compensation while adopting the age of the mother. In such circumstances, the amount of compensation which is payable towards loss of dependency would be Rs.1335x12x15=2,40,300. 9. Deducting the amount which is ordered at Rs.1,44,540/- the additional amount of compensation which is payable towards loss of dependency will be Rs.95,760/(2,40,300-144,540). There is no challenge against any of the amounts awarded. We make it clear that out of the enhanced amount, the father will also be entitled to get 20%, as found by learned Tribunal. 20% of the amount will be given to the 4[th] respondent, who is the father of the deceased. The additional compensation also can be awarded on the same rate of interest as awarded by learned Tribunal. Therefore the following order is passed. : 6: ## M.A.C.A.NO.1964 OF 2008 - i. The 3[rd] respondent is directed to deposit Rs.95,760/- as additional compensation to the appellants and the 4[th] respondent within two months from the date of receipt of a copy of this judgment, with the same rate of interest and period as awarded by the Tribunal; failing which 9% interest per annum shall be paid on such amount for same period. - ii 20% of the additional amount awarded will be paid to the 4[th] respondent – father. The percentage fixed for other claimants will be the same as fixed by the Tribunal. This appeal is allowed. **K. HEMA, JUDGE.** **P.S. GOPINATHAN, JUDGE.** cl : 7: M.A.C.A.NO.1964 OF 2008 : 8: M.A.C.A.NO.1964 OF 2008