P.J. Mathai @ Joly and Cicily v. Jaemon K.T. & Others (MACA No. 2341 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939** **MACA.No. 2341 of 2012 ()** **-----------------------OPMV 372/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA. .......** ## **APPELLANTS/PETITIONERS:** ## **----------------------** |**1.**|**P.J.MATHAI @ JOLY, S/O.JOSEPH,**| |---|---| ||**AGED 48 YEARS, PARANKAMALIL HOUSE,**| ||**NELLIMATTOM P.O., KOTHAMANGALAM.**| |**2.**|**CICILY, W/O.P.J. MATHAI @ JOLLY,**| ||**AGED 43 YEARS, PARANKAMALIL HOUSE,**| ||**NELLIMATTOM P.O., KOTHAMANGALAM.**| ||**BY ADV. SRI.SOORAJ T.ELENJICKAL**| ## **RESPONDENTS/RESPONDENTS: ------------------------** |**1.**|**JAIMON.K.T., S/O.RAMAN, KUZHIPPIL HOUSE,**| |---|---| ||**RAJAKKADU P.O., IDUKKI DISTRICT - 685 602.**| |**2.**|**P.C.UNNIKRISHNAN, PULICKAL HOUSE,**| ||**POOCHIRA PUDHUPARIYARAM,**| ||**PALAKKADU DISTRICT - 678 583.**| |**3.**|**UNITED INDIA INSURANCE CO. LTD,**| ||**JOSE TRUST BUILDINGS, P.S NO.3644,**| ||**CHITOOR ROAD, KOCHI - 682 035.**| |**4.**|**SANTHOSHKUMAR, S/O.DAMODARAN,**| ||**ANUKUNNEL HOUSE, RAJAKKADU P.O.,**| ||**IDUKKI DISTRICT - 685 602.**| ## **BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.2341 OF 2012 -------------------------------------------------DATED THIS THE 7[th] DAY OF JULY, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** This appeal is directed against the judgment and award dated 20.4.2012 in O.P.(MV)No.372/2004 passed by the Motor Accident Claims Tribunal, Muvattupuzha. The claim petition was filed by the appellants herein who are the parents of one Jisto Mathew who died in a motor vehicle accident occurred on 15.1.2004. In fact, on sustaining injuries he was taken to the MBMN Hospital, Kothamangalam and while undergoing treatment there, he succumbed to the injuries on 18.1.2004. He was a student in the V[th] standard and was aged 10 years. The appellants claimed an amount of 3,00,000/- as compensation and as per the impugned₹ award, the Tribunal granted a total compensation of 2,44,000/-₹ with interest @8% per annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been filed. 2. Heard. M.A.C.A.No.2341/2012 -2- 3. The main grievance of the appellants is with respect to the fixation of the compensation for loss of dependency. The Tribunal, without any discussion regarding the multiplicand or multiplier applicable, granted an amount of 1,80,000/- as compensation₹ under the said head, relying on a decision of the Hon'ble Apex Court in **New India Assurance Company Limited v. Satheendran and others** reported in **2007 SAR(Civil) 1** . It is further submitted that the Tribunal has granted only a meagre sum towards loss of love and affection. It is the further submission that towards damage to clothing, extra nourishment, bystander expenses and transportation expenses, no amount was granted by the Tribunal. It is based on such averments that the appellants claimed for enhancement of compensation. 4. On giving anxious consideration to the aforesaid contentions, the contra contentions and perusing the judgment and award, we are of the considered view that the appellants are justified in claiming for enhancement of compensation. It is to be noted that subsequent to the decision of the Hon'ble Apex Court in Satheendran's case (supra) in the matter of granting compensation in respect of death of school going children, the Apex Court had M.A.C.A.No.2341/2012 -3- rendered a decision in **R.K.Malik and another v. Kiran Pal and others [(2009) 14 SCC 1]** . In the said decision, the Hon'ble Apex Court held that for the purpose of identifying the multiplier and the multiplicand for granting compensation in such cases, the Second Schedule to the M.V. Act has to be looked into even when the compensation is claimed and payable under Section 166 read with Section 168 of the Motor Vehicles Act. Further, it was held therein that a deviation from the structured formula provided in the Schedule would not be permissible except in exceptional circumstances. The impugned judgment was passed by the Tribunal on 20.4.2012. In such circumstances, we are of the view that the Tribunal ought to have assessed the compensation for loss of dependency based on the decision of the Apex Court in R.K.Malik's case (supra). After holding as above in Para.12 of the said decision, virtually, the Hon'ble Apex Court fixed the annual income of the victim who was a school going student as ₹30,000/-, taking into account various aspects. The accident involved in that case had occurred prior to the accident in question. In such circumstances, we are of the view that for the purpose of calculating compensation for loss of dependency, the multiplicand M.A.C.A.No.2341/2012 -4- has to be taken as 30,000/- and the multiplier as '15'. A Division₹ Bench of this Court in **New India Assurance Company v. Vijayan (2016(1) KLT 704)** held that when compensation is worked out as given in the 2[nd] Schedule, 1/3[rd] of the amount arrived at, has to be deducted towards personal and living expenses of the deceased and the balance 2/3[rd] alone could be treated as the probable contribution. In such circumstances, in this case, the compensation for loss of dependency payable to the appellants will be 3,00,000/- (30000x15x2/3). The Tribunal has₹ already granted an amount of 1,80,000/- as compensation for₹ loss of dependency. Hence, after subtracting the said amount, the appellants will be entitled to get an amount of ₹ **1,20,000/-** additionally under that head. Towards loss of love and affection, the Tribunal has granted only 10,000/- each to the appellants₹ who are the parents of the deceased. Taking into account the fact that the appellants/petitioners are the parents who lost their son at the age of 10 years, we are inclined to grant 25,000/- each as₹ compensation towards love and affection to the appellants. After deducting the amount already granted, the appellants are entitled to get an amount of ₹ **30,000/-** additionally under that head. As M.A.C.A.No.2341/2012 -5- noticed hereinbefore, the Tribunal has not granted compensation towards damage to clothing, extra nourishment, bystander expenses and transportation expenses. Towards damage to clothing, we are inclined to grant 500/- . Taking into account the₹ fact that immediately after sustaining injuries on 15.1.2004, the child was taken to hospital and he remained there as an inpatient till 18.1.2004 and he breathed his last only on that date at 4.20 p.m., we are inclined to grant 400/- towards extra nourishment at₹ the rate of 100/- per day and 600/- towards bystander expenses₹ ₹ at the rate of 150/- per day. Towards transportation expenses an₹ amount of 1,500/- is granted. The total amount under the₹ aforesaid heads will come to 3,000/-. On perusing the schedule₹ of compensation, it is evident that no amount was granted towards expenses including transportation. This fact is discernible upon a scanning of the schedule of compensation. Evidently, as against a claim of ₹10,000/- towards funeral expenses, ₹5,000/- was granted. Towards loss of estate, 2,500/- was granted as against₹ a claim of 20,000/-. It appears that towards pain and suffering as₹ against a claim of 50,000/- an amount of 10,000/- was granted.₹ ₹ Towards medical expenses, 24,320/- was granted as against a₹ M.A.C.A.No.2341/2012 -6- claim of 29,000/-. Towards loss of love and affection, 10,000/-₹ ₹ each was granted to the petitioners or in other words, an amount of 20,000/- was granted as against a claim of 1,00,000/-. An₹ ₹ amount of 1,80,000/- was granted as compensation for loss of₹ dependency. Thus, the total compensation granted under the aforesaid heads is only 2,41,820/-. But, at the same time, it is₹ specifically stated therein that an amount of 2,43,820/- was₹ assessed as compensation payable. In such circumstances, it can only be taken that an amount of 2,000/- granted towards general₹ expenses including transportation was not specifically incorporated in the schedule. If the said amount is added to the aforesaid figure ₹2,41,820/-, the total compensation payable would become ₹2,43,820/-. It is this amount which is rounded off to 2,44,000/-.₹ Therefore, there is an excess of 2,180/-. We are adjusting the₹ same as against the compensation granted under the heads damage to clothing, extra nourishment, bystander expenses and transportation expenses and since the compensation granted under the aforesaid heads is 3,000/-, the appellants are entitled to get₹ ₹ **820/-** under the said heads. 5. In the light of the discussion as above, the appellants are M.A.C.A.No.2341/2012 -7- entitled to get a total additional compensation of ₹ **1,50,820/(Rupees One Lakh Fifty Thousand Eight Hundred and Twenty only)** . It is awarded. The said additional compensation will carry interest @8% per annum from the date of petition till realisation. Even as per the impugned award, taking note of the absence of any dispute regarding the liability to indemnify the insured owner, the insurer was made liable to compensate the petitioners. In such circumstances, the 3[rd] respondent is directed to deposit the amount of additional compensation along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. to Judge