New India Assurance Co. Ltd. v. Shaji Cheriyackal and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938 MACA.No. 275 of 2015 () ------------------------ AGAINST THE AWARD IN OPMV 2/2010 of M.A.C.T.,KOTTAYAM DATED 30-052014 APPELLANT(S)/4TH RESPONDENT: ------------------------------------- THE NEW INDIA ASSURANCE CO.LTD REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S)/RESPONDENTS/PETITIONERS 2 TO 12: ---------------------------------------------- 1. SHAJI CHERIYACKAL, NATTAKAM VILLAGE, NATTAKAM P.O., KOTTAYAM686013. 2. K.C.KOSHY, KIZHAKKEPARAMBIL, VELLOOR P.O., PAMPADY KOTTAYAM-686502. 3. MARIYAMMA PULIMOOTTIL (H), KANJIKUZHY, MUTTAMBALAM, KOTTAYAM686004. 4. SOSAMMA PAULOSE EDACKANNAL (H), HENNURU, BBMP PO, BANGALORE-560009. 5. ANNAMMA YOHANNAN VALIYAVEETTIL HOUSE, KARICKAMATTOM BHAGOM, PAMPADY686502. 6. SUJA SCARIA KOLLAPARAMBIL HOUSE, VADAVATHOOR PO., VIJAYAPURAM, KOTTAYAM-686010. 7. SHAJI K. JOHN CHERICKAL, NATTAKAM P.O., KOTAYAM-686013. 8. ALEYAMMA YOHANNAN KIZHAKKEPARAMBIL, MUTTAMABALAM, KOTTAYAM-686004. 9. BR. BINJ K. JOHN, KIZHAKKEPARAMBIL, MUTTAMBALAM, KOTTAYAM-686004. 10. BAIJU K. JOHN KIZHAKKEPARAMBIL, MUTTAMABALAM, KOTTAYAM-686004. 11. THOMAS CHANDAPILLAI CHERICKAL, KIZHAKKEPARAMBIL, NATTAKAM P.O., KOTTAYAM686013. R2,R 3 ,R6 BY ADV. SRI.PHILIP T.VARGHESE R2,R 3,R 6 BY ADV. SRI.THOMAS T.VARGHESE R2,R 3,R 6 BY ADV. SMT.ACHU SUBHA ABRAHAM R2,R 3,R 6 BY ADV. SMT.K.R.MONISHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KAV/ **“C.R.”** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.275 of 2015** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 19[th] day of May, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ The fourth respondent in O.P.(M.V.)No.2 of 2010 on the file of the Motor Accidents Claims Tribunal, Kottayam is the appellant herein. The claim petition was filed by original claimants 1 and 2, who are the mother and one of the brothers of deceased John K. Mathew seeking compensation for the death of their bread winner who died in a motor vehicle accident occurred on 7.4.2009. The case of the original claimants in the claim petition was that the deceased John K. Mathew, aged 36 years, while walking along the side of the M.C. Road was knocked down by a car bearing registration No.KL-30/3874 driven by the first respondent, owned by the second respondent and insured with the third respondent in the claim petition, which came in a negligent manner and caused severe injuries to him. He succumbed to the injuries after few hours while he was undergoing treatment in the hospital. According to the claimants, he was an energetic businessman, aged 36 years and a bachelor earning Rs.6,300/- per month as he was engaged in agriculture and poultry farming. ## **M.A.C.A.No.275 of 2015** ## **-:2:-** Claimants 1 and 2 are his legal heirs and dependents. They claimed a total compensation of Rs.10,00,000/-. They also contended that the accident occurred due to the negligent driving of the car by the first respondent and respondents 1 to 3 are jointly and severally liable to pay the compensation. 2. The first respondent entered appearance and filed a written statement denying the allegation that he was negligent in driving the vehicle. According to him, the accident occurred due to the negligence of the deceased himself. According to him, the vehicle was insured with M/s.New India Assurance Co. Ltd., who has been later impleaded as the additional fourth respondent. 3. Originally, the Oriental Insurance Company Ltd., Kottayam was impleaded as the third respondent on the averment that they were the insurer of the vehicle. They filed a written statement contending that the vehicle was insured with M/s.New India Assurance Co. Ltd., Kottayam and not with them and so they are not liable to pay the compensation. 4. Subsequently, the additional fourth respondent was impleaded as the insurer of the vehicle as per order in I.A.No.115 of 2012 and they filed a statement contending that the vehicle was insured with them not in the name of the second respondent but in the name of one ## **M.A.C.A.No.275 of 2015** ## **-:3:-** E.C.Varghese and that the first respondent was not having a driving licence. They also denied the negligence on the part of the first respondent. They denied the age, occupation, income of the deceased and dependency of the claimants as well. According to them, the amount claimed is excessive. They prayed for dismissal of the claim petition. 5. On the basis of the contentions of the additional fourth respondent, the additional fifth respondent was impleaded as the insured of the vehicle as per order in I.A.No.447 of 2013 and he remained exparte. 6. During the pendency of the claim petition, the first petitioner/ claimant died and the second petitioner was recorded as one of the legal heirs and her other legal heirs were impleaded as additional petitioners 3 to 12 as per order in I.A.No.17 of 2014. 7. No oral evidence was adduced on either side. Exts.A1 to A4 were marked on the side of the claimants. 8. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the first respondent and the respondents are jointly and severally liable to pay compensation and awarded a compensation of Rs.6,65,500/- under various heads as follows: **-:4:-** ## **M.A.C.A.No.275 of 2015** |_Heads_|_Amount Awarded_<br>_(in Rupees)_| |---|---| |_Transport to and from hospital_|_2000_| |_Damage to clothings_|_1000_| |_Funeral expenses_|_25000_| |_Loss of dependency_|_607500_| |_pain and sufferings_|_10000_| |_loss of love and affection_|_10000_| |_loss of estate_|_10000_| |_Total_|_665500_| The tribunal also directed the third respondent to pay the said amount to claimants 2 to 12 with interest and costs. Aggrieved by the quantum of compensation awarded, the present appeal has been preferred by the appellant/insurer of the vehicle namely the fourth respondent in the tribunal. 9. Heard Sri.V.P.K.Panicker, learned counsel appearing for the appellant and Smt.K.R.Monisha, learned counsel representing Sri.Philip T. Varghese, learned counsel appearing for the respondents. 10. Learned counsel appearing for the appellant submitted that the tribunal was not justified in awarding compensation beyond the life span of the deceased first claimant, who is the only dependent legal heir of the deceased John K. Mathew. Further she died within four years of filing of the application and the other petitioners are not dependents and as such, the normal yardstick for taking the multiplier ## **M.A.C.A.No.275 of 2015** ## **-:5:-** should not have been taken in this case. The tribunal should have taken note of the fact that the first petitioner died during the pendency of the proceedings and that should have been taken into account while selecting the multiplier for awarding compensation under the head loss of dependency. Further the annual income taken is high and even if the monthly income taken is proper, no future prospects should have been taken, taking note of the fact that the mother died during the pendency of the proceedings. So according to the learned counsel, the amount awarded under the head loss of dependency is on the higher side. 11. On the other hand, learned counsel appearing for the respondents submitted that the tribunal has considered all the aspects in the right perspective and the compensation awarded is just and proper. 12. Since there is no dispute regarding the negligence aspect and only the quantum of compensation has been disputed by the appellant, we are not going into the aspect of negligence in this appeal. The case of the original claimants, who are the mother and one of the siblings of the deceased, was that they are the legal heirs and dependents of deceased John K. Mathew. According to the claimants, the deceased was a bachelor aged 36 years and was getting ## **M.A.C.A.No.275 of 2015** ## **-:6:-** a monthly income of Rs.6,300/- by doing agricultural work and also from poultry farming as well. It is true that no evidence was adduced on the side of the petitioners to prove this fact. However considering the fact that he was aged 36 years and the accident occurred in the year 2009, it cannot be said that the monthly income of Rs.4,500/taken by the tribunal is on the higher side, as even in the year 1994 the Legislature has fixed the notional income as Rs.15,000/- per annum for a non-earning member for the purpose of assessing compensation payable under section 163-A of the Motor Vehicles Act, in the second schedule attached. Though more than two decades has lapsed after introducing the second schedule, there was no attempt on the part of the Legislature in amending the notional income and raise income slab provided in the schedule in tune with the raise in wages, cost of living, decrease in money value and inflation as the intention of the Legislature was to increase the income slab from time to time taking into consideration the above factors. Taking note of the cost of living and increase in wages, the amount of Rs.4,500/- fixed by the tribunal as monthly income cannot be said to be exorbitant or excessive. 13. Further in the decision reported in **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)] which was later confirmed by subsequent ## **M.A.C.A.No.275 of 2015** ## **-:7:-** decision of the Apex Court in **Munna Lal Jain and Others v. Vipin Kumar Sharma and Others** [JT 2015 (5) SC 1], it was held that even in cases where the deceased had no permanent income, considering the age of the person, proportionate future prospects will have to be taken into consideration for taking the multiplicand for the purpose of assessing the compensation under the head loss of dependency. Considering the fact that the deceased was aged only 36 years, going by the dictum laid down in **Rajesh v. Rajbir Singh** [supra], the tribunal was perfectly justified in taking 50% as the future prospects and adding that amount towards the monthly income for the purpose of arriving at the multiplicand to award compensation under the head loss of dependency cannot be said to be wrong. 14. The other contention taken by the learned counsel is that the mother was aged 65 years and the other supplemental petitioners and the second petitioner were not dependents. Since the mother died during the pendency of the proceedings, the tribunal should not have taken the age of the deceased as a factor for taking the multiplier. But in the decision reported in **Amrit Bhanu Shali and Others v. National Insurance Company Limited and Others** [(2012) 11 SCC 738] which was later confirmed by the Supreme Court in **Munna Lal Jain and Others v. Vipin Kumar Sharma and Others** [supra] , the ## **M.A.C.A.No.275 of 2015** ## **-:8:-** Supreme Court has held that for the purpose of selection of multiplier for assessing compensation, it is the age of the deceased that has to be taken into consideration as relevant factor and not the age of the claimants. If that be the case, the multiplier taken by the tribunal taking the age of the deceased, relying on the decision in **Sarla Verma and Others v. Delhi Transport Corporation and Another** [(2009) 6 SCC 121] and confirmed in **Reshma Kumari and Others v. Madan Mohan and Another** [(2013) 9 SCC 65] is perfectly justifiable. 15. The other contention taken by the learned counsel for the insurance company was that the mother died during the pendency of the proceedings and that should have been taken note of by the tribunal for fixing the multiplier. We are afraid that the proposition is correct and so that the said contention cannot be accepted. The cause of action for claiming compensation arises for the claimants as on the date of the death of the victim of the accident. So on the death of the victim, a right had accrued to the dependent mother for claiming compensation and merely because she died during the pendency of the proceedings that will not abrogate her right to claim just and reasonable compensation on the basis of the principles laid down by the Supreme Court by taking the multiplier of the deceased for fixing ## **M.A.C.A.No.275 of 2015** ## **-:9:-** the compensation under the head loss of dependency. Further the quantification of compensation payable has to be ascertained on the date on which the cause of action arose for filing the application for compensation. On her death, that right will survive to her legal heirs in view of sections 2 and 3 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 which reads as follows: - _“_ _**2. Effect of death on certain causes of action** .- On the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery._ _**3. Damages recoverable in such cases** .- Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person-_ - _(a) shall not include any exemplary damages;_ - _(b) in the case of a breach of promise to marry, shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry;_ - _(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.”_ 16. The scope of this provision in the case of death of injured claimant to his/her legal heirs has been considered by a Division Bench of this court in the decisions reported in **Anuradha Varma v. State of Kerala** (1993 (2) KLT 777) and in **Jaya v. Shaji** (2014 (1) KLT 31) where it has been held that the right of the deceased claimant will ## **M.A.C.A.No.275 of 2015** ## **-:10:-** devolve on his legal heirs and they can continue the application for compensation. This was followed by the decision of a learned single Judge of this court in **Ali (Late) v. Sumesh** (2010 (3) KLT 70) and **Sreerangan v. New India Assurance Co. Ltd.** (2014 (4) KLT 378). The observation in **Sreerangan v. New India Assurance Co. Ltd.** (supra) that the compensation payable to the mother of the deceased in an application filed by her as one of the legal heirs will be limited to her date of death to her legal heirs who came on record after her death cannot be treated as a general proposition of law laid as it was not required to be considered in that case at that stage for disposal of the case. The question that arose in that case was whether the legal heirs of the deceased mother who was shown as one of the legal heirs, on her death, are entitled to come to record and that was upheld. The question of quantum of compensation payable to her share as one of the legal heirs ought to be left open to be considered by the tribunal on the basis of evidence. Further, the earlier view that the age of the dependent has to be considered for selecting the multiplier and the period of dependency should not outweigh the life span of the dependent has been changed in view of the dictum laid down in the decision reported in **Sarla Verma and Others v. Delhi Transport Corporation and Another** [supra], **Reshma Kumari and Others v.** ## **M.A.C.A.No.275 of 2015** ## **-:11:-** **Madan Mohan and Another** [supra], **Amrit Bhanu Shali and Others v. National Insurance Company Limited and Others** [supra] and **Munna Lal Jain and Others v. Vipin Kumar Sharma and Others** [supra]. So the age of the dependent has no relevance for selecting the multiplier and the age of the deceased alone has to be considered for that purpose and once the quantification has to be done on that basis, the mother/dependent will be getting a vested right to get that amount and on her/his death that her/his legal representative will succeed that right. So the contention of the learned counsel for the insurance company is unsustainable and the same is rejected. The tribunal had taken all these aspects into consideration and rightly taken the age of the deceased for selecting the multiplier and rightly awarded compensation deducting half of the monthly income of the deceased for his personal expenses relying on the decision reported in **Sarla Verma and Others v. Delhi Transport Corporation and** **Another** [supra]. The amount awarded under the head loss of dependency in such circumstances cannot be said to be excessive. The amount awarded under the other heads is also reasonable as the death of the mother has been taken into consideration and that was the reason why the compensation for loss to the estate as well as the compensation for loss of love and affection has been restricted to a ## **M.A.C.A.No.275 of 2015** ## **-:12:-** nominal amount of Rs.10,000/- each. Under the circumstances, the submissions made by the learned counsel for the appellant for interfering with the award passed by the tribunal are without any merit and substance and the same are liable to be rejected. In the result, the appeal fails and the same is hereby dismissed. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. To Judge ## **vpv**