M/S ICICI General Insurance Co. Ltd. v. P. Abdul Salam and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 MACA.No. 628 of 2011() ---------------------OPMV.240/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): 3RD RESPONDENT IN OP(MV) -------------------------------------- M/S.ICICI GENERAL INSURANCE CO.LTD., ZENITH HOUSE, KESAVARAO KHAIDE MARG, MAHALAKSHMY, MUMBAI-400034, REPRESENTED BY ITS MANAGER. BY ADV. SRI.R.AJITH KUMAR (128/84) SRI.K.B.RAMANAND RESPONDENT(S): CLAIMANTS 1 TO 3 AND RESPONDENTS 1 AND 2 IN OP(MV) ----------------------------------------------------------------- 1. P.ABDUL SALAM, S/O.ABOOBACKER, MANORAMMAL HOUSE,NANMANDA POST, NANMANDA VILLAGE, KOZHIKODE-673613. 2. AMINA, W/O.P.ABDUL SALAM, MANORAMMAL HOUSE,NANMANDA POST, NANMANDA VILLAGE, KOZHIKODE-673613. 3. RUKSANA, D/O.P.ABDUL SALAM, MANORAMMAL HOUSE,NANMANDA POST, NANMANDA VILLAGE, KOZHIKODE-673613. 4. V.R.MADHU, S/O.RAJAPPAN.P.K., VILAKKUMOOLA HOUSE,MANIVAYAL, KARIAMBADI, POOTHADI AMSOM, PIN 673596. 5. C.A.JOSE,CHENAKALLEL HOUSE, NADAVAYAL POST, PANAMARAM, WAYANAD-670721. ADV. SMT.CELINE JOSEPH FOR R1 TO R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.628 of 2011 ---------------------------------------Dated this the 29[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Insurance company is the appellant. Claimants are the father, mother and sister of the deceased. The deceased was a young man aged about 24 years at the time of his death. He was employed as a sales representative with a private establishment. He allegedly was drawing a monthly income of Rs.12,000/-. He was unmarried. The claimants staked a claim for a total amount of Rs.10,00,000/-. 2. The claimant/father was examined as a witness. Documents were marked. The tribunal proceeded to pass the impugned award directing payment of an amount of Rs.5,53,500/- as compensation as per the details given in paragraph 9 of the impugned award which we extract below: |1.|Transportation expenses|Rs.5,000/-| |---|---|---| |2.|Damage to clothing|Rs.500/-| |3.|Pain and suffering|Rs.5,000/-| 2 M.A.C.A.No.628 of 2011 4. Loss of dependency Rs.5,28,000/(Rs.6,000/- x 2/3 x 12 x 11) 4. Loss of love and affection Rs.10,000/5. Funeral expenses Rs.5,000/----------------------- **Total Rs.5,53,500/=========** 3. We have heard the learned counsel for the appellant/insurance company and respondents/claimants. The learned counsel for the insurance company assails the impugned award on the short ground that the quantum of compensation awarded under the head of loss of dependency is excessive. The tribunal had reckoned Rs.6,000/- as the monthly income. This is totally unjustified, contends counsel. No evidence whatsoever was made available before the tribunal to satisfy the tribunal that he was getting a monthly income of Rs.6,000/-. In these circumstances, the quantum of monthly income reckoned by the tribunal is unjustified, contends the counsel. The learned counsel for the appellant further contends that in respect of a bachelor, only 1/3[rd] of the amount has been deducted towards his personal expenses. This is incorrect and unjustified. This is contrary to the dictum in **Sarla Verma v. D.T.C [(2009)6 SCC** 3 M.A.C.A.No.628 of 2011 **121]** . Going by the said decision, 1/2 must have been deducted as personal expenses of the unmarried/bachelor deceased. 4. The learned counsel for the claimants contends that the tribunal has not committed any error in reckoning Rs.6,000/as the monthly income. Even if one were to go by the dictum in **Sarla Verma** (Supra) as contended by the learned counsel for the appellant, the tribunal had erred grossly in not making due provision for improvement of future prospects in employment. When that is taken into consideration, the total amount awarded by the tribunal does not, at any rate, warrant interference, even accepting the contention of the counsel that 1/2 will have to be deducted from the monthly earnings towards the personal expenses of the deceased. The learned counsel for the claimants further submits that the tribunal had erred in reckoning only 11 as the multiplier. Going by the dictum in **Sarla Verma** (Supra), in respect of the second claimant/mother, 13 must have been taken as the multiplier considering the fact that she was aged between 45 and 50 years at the time of death of the deceased. The learned counsel for the claimants further contends that the deceased was the only son of the claimants and that the amount 4 M.A.C.A.No.628 of 2011 of Rs.10,000/- awarded under the head of loss of love and affection is grossly inadequate. 5. We have considered all the relevant inputs. We accept the submissions of the learned counsel for the respondents/claimants that the respondents, even in the absence of an appeal or cross objection on their part, are entitled to support the impugned award for other reasons. 6. Rs.6,000/- has been reckoned as the monthly income. Except news paper cuttings which showed that the deceased was employed as a salesman in a private Vehicle Dealer's establishment, there is absolutely nothing to throw light on the quantum of income of the deceased. Of course, one of the claimants had examined himself as PW1. We agree with the learned counsel for the respondents that due provisions must be made for improvement of prospects in employment. We have no reason to assume that the tribunal had fixed the monthly income of Rs.6,000/- without taking note of the possibility of future increase in wages. We are not, in these circumstances, persuaded to agree that the multiplicand of Rs.6,000/- reckoned by the tribunal does need interference on any ground. 5 M.A.C.A.No.628 of 2011 7. We agree with the learned counsel for the respondents/claimants that 13 and not 11 must be reckoned as the multiplier taking into consideration the age of the 2[nd] claimant/mother (47 years). We take note of the submission that the deceased was the only son of the claimants. We are satisfied that Rs.15,000/- could have been reckoned as the compensation under the head of loss of love and affection. 8. We agree with the learned counsel for the appellant that 1/2 and not 1/3 has to be deducted towards the personal expenses of the deceased, an unmarried/bachelor. 9. The above discussions lead us to the conclusion that the impugned award deserves to be modified as shown below: i) Deduction under the head of Loss of dependency Rs.5,28,000/- minus Rs.4,68,000/(Rs.6,000/- x 12x 1/2 x 13) Rs.60,000/- ## less ii) Increase under the head of Loss of love and affection Rs.5,000/(Rs.15,000/- minus Rs.10,000/-) --------------------- **Total Rs.55,000/=========** 6 M.A.C.A.No.628 of 2011 10. The appeal succeeds to the above extent. We are not satisfied that the amount awarded under any other head deserves/warrants interference. 11. In the result, a) This appeal is allowed in part. b) The claimants/respondents will now be entitled only for an amount of Rs.4,98,500/- (Rs.5,53,500/- minus Rs.55,000/-) (Rupees four lakhs ninety eight thousand five hundred only). c) All other directions of the tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.628 of 2011 7 8 M.A.C.A.No.628 of 2011 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010