Narayanan, Sarada and Shree Mol (minor) through her Grand Father Narayanan v. Mohammed Basheer, Rajagopalan and The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938 MACA.No. 589 of 2011 ( ) ------------------------AGAINST THE AWARD IN OPMV 730/2008 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 14-12-2009 APPELLANT(S)/PETITIONERS: ------------------------ 1. NARAYANAN, AGED 76 YEARS, 2. SARADA, W/O.NARAYANAN, AGED 64 YEARS, 3. SHREE MOL (MINOR), AGED 7 YEARS, D/B 7.12.2002, REPRESENTED BY HER GRAND FATHER, NARAYANAN. (ALL ARE RESIDING AT KARUTHEDATH (H), P.O.PANTHEERANKAVU, KOZHIKODE) BY ADVS.SRI.V.S.CHANDRASEKHARAN KUM.D.MINI RAJAN RESPONDENT(S)/RESPONDENTS: -------------------------- 1. MOHAMMED BASHEER, S/O.ABOOBACKER, AGE NOT KNOWN, PATHAYAPURAKKAL (H), P.O.KODUR, MALAPPURAM-678010. 2. RAJAGOPALAN, S/O.THEYYAN, AGED 41 YEARS, MELEPURAKKAL (H), P.O.PONMALA, MALAPPURAM-678 005. 3. THE NEW INDIA ASSURANCE CO. LTD., MALIYEKKAL BUILDING, 1ST FLOOR, MANJERY UP HILL, MALAPPURAM-678008. ## R3 BY ADV. SMT.P.K.SANTHAMMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.589 OF 2011 ==========================** Dated this the 8[th] day of December, 2016 ## **JUDGMENT** ## _Jyothindranath, J._ This appeal is preferred by the claimants in O.P.(MV).No.730 of 2008 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The challenge is against the quantum of compensation awarded by the Tribunal. 2.When this appeal came up for admission, the learned counsel for the appellants submitted before us that, here is a case where the accident occurred on 18.08.2007 and in that accident, one Prasanth succumbed to the injuries. The legal heirs who are the parents and minor child of the deceased are the petitioners/appellants. The case is **M.A.C.A.589/2011** 2 that the deceased was a driver by profession and was earning `8,000/per month. Considering a monthly income of `3,500/-, against a claim of `6,00,000/-, the Tribunal awarded a total compensation of `4,78,000/-. In this case, the wife of the deceased is not a party. She was not a party to the claim petition also. The learned counsel for the appellant provided copy of the order in O.P.No.79 of 2005 on the files of the Family Court, Kozhikode which would reveal that their relationship was dissolved by the said order. The said order was made available on query by the Bench as the wife of the deceased was not a party to the claim petition. 3.The learned counsel, Smt.P.K.Santhamma, appearing for the insurance company, submitted before us that the legal heirs are the aged parents and the minor child. No materials produced either to show how the accident occurred or the actual occupation of the deceased. Under such circumstances, the compensation awarded is a just compensation and an interference is not required. **M.A.C.A.589/2011** 3 4.In this case, the accident occurred on 18.08.2007. Surely, no positive evidence was adduced by the appellants to show the actual occupation of the deceased. But at the very same time, the income considered by the Tribunal for assessment purpose is on a lower side. In an accident occurred in 2004, that also in the case of a coolie, the Apex Court considered a monthly income of `4,500/- for calculation purpose [ **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** . Thus, it will be only just and proper to consider `5,000/- as the monthly income for assessment purpose as the accident in question occurred in the year 2007. In this case, the age of the deceased is shown as 38 years. On perusal of the award, the multiplier used is seen as 16. As per the dictum laid down in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** it can be seen that appropriate multiplier will be 15. Thus, re-assessing the compensation by taking the monthly income as `5,000/- and multiplier as 15 and also deducting **M.A.C.A.589/2011** 4 1/3 of the income towards personal expenses, the amount available towards loss of dependency will be `6,00,000/-. Additional compensation entitled on this head after considering the amount already awarded will be `1,52,000/- (5000x12x15x2/3-448000). On two other heads also, the compensation awarded is seen on a lower side. Towards funeral expenses only `3,000/- is seen awarded. The appellants will be entitled for at least `25,000/- towards the said head. In this case, no evidence adduced to show that a higher amount was actually expended by appellants for future expenses. In such circumstances, an additional sum of `22,000/- awarded towards funeral expenses. Towards loss of love and affection, only a sum of `10,000/- is seen awarded. In this case, one of the petitioners/appellants is the minor child of the deceased and was aged only 5 years at the time of the accident. Thus, she will be entitled for a sum of `50,000/- and if `10,000/- each is considered for the parents, the appellants will be entitled for a total sum of `70,000/-. In this case, the Tribunal awarded only `10,000/- on this head. Thus, **M.A.C.A.589/2011** 5 deducting the amount already awarded, the appellants will be entitled for an additional sum of `60,000/- towards loss of love and affection. Thus, on the above three heads, the appellants will be entitled to an additional compensation of `2,34,000/-. The compensation awarded on other heads are only just and proper. Thus, the appeal is disposed of awarding an additional compensation of `2,34,000/-. The additional compensation will bear 8% interest from the date of the petition till realisation. The insurance company shall pay the amount within two months from the date of receipt of a copy of this judgment. On deposit, the Tribunal shall realise additional court fee payable by the appellants. From the additional compensation, a lumpsum amount of `25,000/- each shall be paid to appellants 1 and 2 who are the parents of the deceased. The balance amount shall be paid to the minor which shall be deposited in a nationalised bank with maximum benefits till she attains majority. As per order dated 11.11.2016 in C.M.Appln.No.992 of 2011, it was held by this Court that the enhanced compensation will not carry interest for a period of 372 days **M.A.C.A.589/2011** 6 of delay caused in moving the appeal. It is made clear that the said period shall not bear any interest. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge **M.A.C.A.589/2011** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.589/2011** 8