New India Assurance Company Limited v. Sabeena and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938** **MACA.No. 240 of 2016 ()** **------------------------** **AGAINST THE AWARD IN OPMV 1275/2012 of ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL- IV, PATHANAMTHITTA** **APPELLANT/3RD RESPONDENT:** **------------------------** **THE NEW INDIA ASSURANCE COMPANY LIMITED TRIVANDRUM NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENTS/PETITIONERS:** **-----------------------** **1. SABEENA** - **KURUVIKKATTIL HOUSE, MUNDUKOTTAKKAL P.O., PATHANAMTHITTA.** **2. ALAAF ABDUL SALAM (MINOR) KURUVIKKATTIL HOUE, MUNDUKOTTAKKAL P.O., PATHANAMTHITTA RESPRESENTED BY HIS MOTHER IST RESPONDENT.** **3. SULEKHA BEEVI** - **KURUVIKKATTIL HOUSE, MUNDUKOTTAKKAL P.O., PATHANAMTHITTA** **4. MUHAMMED KASSIM KURUVIKKATTIL HOUSE, MUNDUKOTTAKKAL P.O., PATHANAMTHITTA** **R1-R4 BY ADV. SRI.T.K.KOSHY R1-R4 BY ADV. SRI.ABE RAJAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.240 of 2016 ....................................................... Dated this the 20[th] day of May, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The third respondent insurance company in O.P.(MV)No.1275 of 2012 on the file of the Additional Motor Accidents Claims Tribunal, IV, Pathanammthitta is the appellant herein. The claimants , who are the wife, children and parents of deceased Abdul Salam, filed the application for compensation for the death of their breadwinner, who died in a motor vehicle accident occurred on 1.10.2012. 2. It is alleged in the petition that the deceased was riding on his motor cycle with registration No.KL-03-U-7528 from west to east along Pathanamthitta-Kozhencherry public road and when he reached the place of occurrence, a KSRTC bus bearing registration No.KL-158581 driven by the first respondent, owned by the second respondent and insured with the third respondent came from the opposite direction and hit against him and he died on account of the injury sustained. According to the claimants, the accident occurred due to the negligent driving of the bus by the first respondent. He sustained severe injuries and succumbed to the same. He was a head-load worker, aged 40 years getting Rs.18,000/- per month. The claimants claimed a total compensation of Rs.32,00,250/- as compensation on various 2 M.A.C.A.No.240 of 2016 heads. 3. The first respondent remained absent. The second respondent entered appearance and filed a written statement contending that the petition is not maintainable. The accident occurred due to the negligence of the deceased, who was driving the vehicle without wearing the helmet. There was no negligence on the part of the first respondent. He was also not having the driving licence to drive the motor cycle. The amount claimed under various heads are high and excessive. The total compensation claimed is also excessive. Since the vehicle was insured with the third respondent, they are liable to indemnify the petitioner. 4. The third respondent filed a written statement admitting the insurance denying negligence on the part of the first respondent. They also contended that the deceased was negligent and the claimants are not entitled to get any compensation. They prayed for dismissal of the application. 5. No oral evidence was adduced on either side. Exts.A1 to A10 were marked on the side of the claimants. After considering the evidence on record, the tribunal found that the accident occurred due the the negligent driving of the KSRTC bus by the first respondent and awarded a total compensation of Rs.17,23,250/- on various 3 M.A.C.A.No.240 of 2016 heads as follows: |Loss of dependency|: Rs.13,16,250/-| |---|---| |Pain and sufferings|: Rs.20,000/-| |Funeral expenses|: Rs.25,000/-| |Transport to Hospital|: Rs.1,000/-| |Damage to cloths|: Rs.1,000/-| |Loss of love and affection|: Rs.1,60,000/-| |Loss of consortium|: Rs.1,00,000/-| |Loss of estate|: Rs.1,00,000/-| ||-----------------| |Total|: Rs.17,23,250/-| ||==========| and directed respondents 1 to 3 jointly and severally liable to pay the amount, but directed the third respondent insurer to deposit the amount on behalf of respondents 1 and 2. Challenging the quantum of compensation awarded, the above appeal has been preferred by the third respondent insurance company. 6. Since respondents entered appearance and only quantum is in dispute, we felt that the appeal can be admitted and disposed of on merit today itself. 7. Heard Sri.Mathews Jacob, learned senior counsel appearing for the appellant and Sri.T.K.Koshi, learned counsel appearing for respondents 1 to 4. 8. Learned counsel for the appellant submitted that the tribunal has taken Rs.7,500/- per month and taken 30% future prospects and awarded compensation, which is on the higher side. M.A.C.A.No.240 of 2016 4 Further, the amount awarded under the head loss of love and affection, consortium and loss of estate are also on the higher side. So he prayed for dismissal of the petition. He also submitted that the deceased being 41 years, the multiplier ought to be 14 and not 15 as taken by the court below. 9. Learned counsel for the respondents submitted that the documents produced will go to show that the compensation awarded is just and proper. No interference is called for. 10. Since the accident and the negligent aspect are not disputed, this court is not going into that aspect in this appeal. The case of the claimants in the claim petition was that the deceased was a head-load worker and getting Rs.18,000/- per month. Except producing Ext.A10, true copy of the identity card issued from the Kerala Headload Workers Welfare Board, no document has been produced on the side of the claimants to prove the income of the deceased. However, the accident occurred in the year 2012. Even in the year 1994, the legislature has taken the annual notional income of a non earning person as Rs.15,000/- per annum. The deceased is aged only 41 years as per the postmortem certificate and also the identity card issued. He had to look after a family consists of four persons. So considering the circumstances, the amount of Rs.7,500/- M.A.C.A.No.240 of 2016 5 taken by the tribunal as his national income cannot be said to be on the higher side especially when he had produced Ext.A10 to show that he was a member of the Kerela Headload Workers Welfare Fund Board and that shows that he was a headload worker. 11. Further, in the decision reported in _**Rajesh v. Rajbir Singh** [2013(3) KLT 89(SC)],_ the Supreme Court has held that even in cases where there is no permanent income, future prospects will have to be taken into consideration and upto the age group of 40 years 50%, from 40 to 50, 30% and 50 to 60, 15% has to be added for future prospects. In this case, the deceased was aged 41 years. So 30% will have to be added to the income as future prospects to fix the monthly income of the deceased for assessing compensation under the head loss of dependency. So the court below was perfectly justified in taking 30% for future prospects, which cannot be said to be wrong in view of the dictum laid down in the decision referred to above. There is some force in the submission made by the learned counsel for the appellant as court below ought to have taken only 14 as multiplier, as per the decision reported in _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another** (2009(6) SCC 121)_ , the multiplier applicable to the age group of 41 to 45 is 14 and not 15. If a recalculation is made on that basis, the claimants 6 M.A.C.A.No.240 of 2016 will be entitled to get an amount of Rs.12,28,500/- in stead of Rs.13,16,250/- awarded under the head loss of dependency and an amount of Rs.87,750/- has been awarded in excess under that head, which has to be deducted from that head. As regards the other amounts are concerned, the court below had awarded the amount, on the basis of the dictum laid down by the Apex Court on this aspect. So it cannot be said that the amount awarded under the head compensation for loss of consortium, love and affection and loss of estate are on the higher side. Though the loss of estate appears to be on the higher side, the amount awarded under the head loss of love and affection considering the age of child and parent, is on the lower side. So, over all, the compensation awarded under other heads appears to be just and proper and only an amount of Rs.87,750/which was awarded in excess under the head loss of dependency has to be deducted. If that amount is deducted from the total compensation of Rs.17,23,250/- awarded by the tribunal, the claimants will be only entitled to get an amount of Rs.16,35,500/as total compensation. So the total compensation awarded by the tribunal has to be modified as follows: The claimants are entitled to get a total compensation of Rs.16,35,500/-, which respondents 1 to 3 are jointly and severally M.A.C.A.No.240 of 2016 7 liable to pay and the third respondent being the insurer is liable to deposit the amount. On all other aspects, the finding of the tribunal is hereby confirmed. So the award passed by the court below is modified to the extent mentioned above and the appeal is disposed of accordingly. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- ## **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge **cl**