New India Assurance Co. Ltd. v. P.K. Chacko and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 27TH DAY OF JUNE 2012/6TH ASHADHA 1934 MACA.No. 923 of 2008 (E) & CROSS OBJECTION NO.99/08 ------------------------------OPMV.637/2005 of MACT,KASARAGOD ------------- APPELLANT/3RD RESPONDENT: ------------------------------------- THE NEW INDIA ASSURANCE CO. LTD. PAYYANNUR NOW REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S)/PETITIONERS: ----------------------------------- 1. P.K.CHACKO, S/O KURUVILLA, PATHIYIL HOUSE, PADIMARUTHE P.O., VIA.ANANDASHRAMAM HOSDURG TALUK, KASARAGOD DISTRICT. 2. ANNAMMA CHACKO, W/O.CHACKO, DO. DO. 3. P.C.ALICE ABRAHAM, D/O.CHACKO, POOTHAMPURAYIL HOUSE, MALAKALLE P.O. VIA RAJAPURAM, KALLAR VILLAGE, KASARAGOD DISTRICT. 4. SISTER JOLLY, SVM, D/O.CHACKO, VISITATION CONVENT, RANIPURAM P.O., HOSDURG TALUK. 5. P.C.ELSAMMA, D/O. CHACKO, BEHIND GOVT. HOSPITAL, PAYYANNUR, KANNUR DISTRICT. 6. P.C.KURUVILLA, S/O.CHACKO, PATHIYIL HOUSE, PADIMARUTHE P.O., VIA. ANANDASHRAMAM HOSDURG TALUK, KASARAGOD DISTRICT. MACA.No. 923 of 2008 (E) & CROSS OBJECTION NO.99/08 -2- 7. P.C.JOSE, S/O.CHACKO, DO. DO. 8. P.C.JOBY, S/O.CHACKO, DO. DO. (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). BY ADV. SRI.M.SASINDRAN SRI.M.V.BIPIN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2012, ALONG WITH CO. 99/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -----------------------------------------------Dated this the 27[th] day of June, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ M.A.C.A No.923/08 is filed by the Insurance Company and the Cross Objection No.99/08 is filed by the claimant. The claim petition pertains to the claim for compensation for the death of one Geo, a Barman-cum-Driver who lost his life while the autorickshaw which has been driven by him was hit by a lorry duly insured with the third respondent Insurance Company. The claimants claim a total compensation of ` 7 lakhs as compensation under various heads. The learned Tribunal under the impugned judgment allowed them ` 2,30,700/- together with interest from the date of accident till date of realisation at the rate of 9% per annum with the rider that if the entire compensation is not M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -2- deposited by the Insurance Company within one month the interest rate will stand escalated to 12%. The Insurance Company in the appeal preferred by them challenges the quantum of compensation awarded under various heads, particularly under the head of dependency. There is challenge also regarding the directions in the award concerning the rate of interest on the awarded compensation. 2. The claimants in the memorandum of Cross Objections are contending that the total compensation awarded by the learned Tribunal is inadequate. It is urged that the learned Tribunal went wrong in adopting the multiplier applicable to the age group of the mother who was the junior among the parents of the deceased. The multiplier to be adopted was the one applicable to the age group of the deceased 23. 3. We have heard the submissions of Sri.Mathews Jacob M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -3- the learned Senior Counsel for the appellant Insurance Company and those of the learned counsel for the claimants Cross Objectors. 4. Sri.Mathews Jacob, the learned senior counsel would make arguments on the basis of the various grounds raised in the appeal and submit that at any rate the award of the learned Tribunal warrants interference in respect of the award towards dependency and also in respect of the rate of interest awarded. The submission of the learned counsel for the Cross Objectors was that the dependency compensation requires an upward revision as the proper multiplier to be adopted is the multiplier applicable to the deceased. 5. We have considered the rival submissions addressed at the Bar very anxiously. We have carefully read through the impugned award. We have kept in mind various judicial precedents including the judgment of the Supreme Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -4- 802 SC). We are unable to agree with the counsel for the Cross Objectors that the correct multiplier to be adopted in this case of death of Sri.Geo, a bachelor was the multiplier applicable to the age group of the deceased. We are of the view that as the father was aged 70 and the mother was aged 68 ideally the multiplier to be adopted is that of the mother, which is 5. We find that in the present case as against the claim of the claimants that late Geo was deriving a monthly income of ` 3,000/- towards his employment as Barman and was getting ` 300/- per day when he drove the autorickshaw, the learned Tribunal adopted a notional amount of ` 2,000/- per mensem for determining the dependency compensation. The learned Tribunal however, would deduct one third towards personal expenses of the deceased and adopted a very higher multiplier of 12. We are of the view that having regard to the facts and circumstances attending on this case, the monthly income of M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -5- the deceased can be adopted safely at ` 4,000/-. However, the deduction to be made is one half as the deceased was a bachelor. The multiplier to be adopted as already stated is 5. When dependency compensation is so re-determined the same will stand reduced to ` 1,20,000/- as against ` 1,92,000/-. This means that the dependency compensation will stand reduced by ` 72,000/-. 6. But we find inadequacy in the compensation awarded by the learned Tribunal to the claimants towards other heads. It was not an instantaneous death that Sri.Geo died. He died after four days of excruciating pain and agony. We find gross inadequacy in the compensation awarded towards pain and suffering. We award to the claimants ` 15,000/- more towards pain and suffering. 7. Towards funeral expenses the claimants have been awarded only ` 3,000/-. We award to the claimants ` 2,000/more. M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -6- 8. We find that towards transportation charges the claimants have not been awarded adequate compensation. We award to the claimants ` 2,000/- more. 9. We are surprised to find that the claimants were not awarded any compensation towards loss of love and affection. We award to them ` 25,000/- towards loss of love and affection. 10. The deceased was admittedly in hospital for four days prior to his death. For these four days, the claimants are awarded a total amount of ` 1,000/- towards bystander's charges. 11. Thus over and above what is awarded by the learned Tribunal under heads indicated above, we have awarded to the claimants a total amount of ` 45,000/-. However, when this amount is offset against the sum of ` 72,000/- which we have reduced from the compensation awarded towards dependency the total compensation to M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -7- which the claimants become eligible will stand reduced by ` 27,000/-. 12. The appeal as well as the memorandum of Cross Objections are disposed of as above. There will be a further modification that the total compensation to which the claimants become eligible by virtue of this judgment (the entire compensation) the same will carry interest at the rate of 8% per annum from the date of accident till date of realisation. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A No.923 of 2008 & Cross Objection No.99 of 2008 -8-