P.K. Alexander and Daisy Alexander v. V.T. Thomaskutty and Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 13TH DAY OF JANUARY 2014/23RD POUSHA, 1935 MFA.No. 177 of 2003 ( ) ------------------------ OPMV 1048/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,PUNALUR APPELLANT(S)/PETITIONERS:: ------------------------------------------- 1. P.K. ALEXANDER (FATHER) KIZHAKKEVEETTIL, THADATHIL, ANDOOR KOTTARAKKARA. 2. DAISY ALEXANDER (MOTHER) KIZHAKKEVEETTIL, THADATHIL, ANDOOR VALAKOM, KOTTARAKKARA. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT(S)/RESPONDENTS:: ------------------------------------------------ 1. V.T. THOMASKUTTY, VARAPURAYIL VEEDU, PERINGALLOOR, AYOOR. 2. THE BRANCH MANAGER, M/S. ORIENTAL INSURANCE CO.LTD., PUNALUR. 3. THE BRANCH MANAGER, M/S. ORIENTAL INSURANCE CO.LTD., KOTTARAKKARA. R1 BY ADV. SRI.D.JAYACHANDRAN R3 BY ADV. SRI.A.R.GEORGE THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON15-11-2013 , THE COURT ON 13-01-2014 DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **-------------------------------------M.F.A. No. 177 of 2003** **-------------------------------------Dated this the 13[th] day of January, 2014.** ## **JUDGMENT** ## A. Hariprasad, J. Appellants claimed compensation under Section 166 of the Motor Vehicles Act, 1988 (“the Act”, in short) before the Motor Accidents Claims Tribunal, Punalur (“the Tribunal”, in short) for the extremely sad and untimely death of their son, Praveen aged 19 years. He died in an accident on 17.05.1998. The deceased was riding a scooter on which the mini lorry owned and driven by the 1[st] respondent dashed against, inflicting fatal injuries to him. Respondents 2 and 3 are the insurance companies which issued the insurance policies in respect of the mini lorry and the scooter respectively. After considering the materials on record, the Tribunal awarded a total sum of `1,55,600/- as compensation with interest at the rate of 9% per annum from the date of petition till the date of realisation against respondents 1 and 2. Feeling aggrieved by the inadequacy of the award amount, appellants have come up in appeal. 2. We heard the learned counsel for the appellants and the 2 MFA No.177/2003 learned counsel for the respondents. We have carefully perused Exts.A1 to A9 and the oral evidence of PW1. 3. Learned counsel for the appellants submitted that the compensation awarded by the Tribunal is unjustifiably low. Deceased Praveen was a brilliant student, studying for degree at the time of his untimely death. His mother (2[nd] appellant) was aged 42 years and his father (1[st] appellant) was aged 46 years at that time. It is also submitted that both the appellants were employed in Dubai. Deceased Praveen had a bright future prospects as he was proposed to be sent to USA for higher studies. Unfortunate incident shattered all the dreams of the appellants, contended the learned counsel. 4. On perusal of the award passed by the Tribunal, it is seen that compensation was granted under following heads: Transportation expenses - `1,000/Funeral expenses - `2,000/- Compensation for pain and sufferings - `10,000/Loss of love and affection - `25,000/- Dependency compensation calculated, on the basis of notional income taken and using a multiplier 14, is as follows: For first seven years, dependency compensation is at the rate of `11,200/- per annum. Therefore, total compensation for that period is 3 MFA No.177/2003 `78,400/-. For the next seven years, dependency compensation is at the rate of `5,600/- per annum. This was fixed considering the fact that the deceased, had he been alive, would have married at the age of 28. Therefore, compensation under that head is `39,200/-. Hence the amount of total compensation worked out is `1,55,600/-. 5. Learned counsel for the appellants submitted that the award of the Tribunal is unsustainable in view of the binding precedents relating to payment of compensation. Learned counsel for the appellants placed reliance on the decision in **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (S.C.))** . That was a case wherein a scientist worked in the Indian Council of Agricultural Research (ICAR) on a monthly salary of `3,402/- died in an accident on 18.04.1988. Notwithstanding the fact that there is marked difference in facts between **Sarla Verma** 's case (supra) and this case, learned counsel for the appellants placed reliance on certain legal principles enunciated therein. In **Sarla Verma** 's case (supra) the Supreme Court, at paragraph 40 of the decision, tabulated the figures of the II Schedule applicable under Section 163A of the Act in juxtaposition with relevant judicial pronouncements. It shows thus : 4 MFA No.177/2003 |**_Age of the_**<br>**_deceased_**|**_Multiplier_**<br>**_scale as_**<br>**_envisaged_**<br>**_in Susamma_**<br>**_Thomas_**|**_Multiplier_**<br>**_scale_**<br>**_adopted by_**<br>**_Trilok_**<br>**_Chandra_**|**_Multiplier_**<br>**_scale in_**<br>**_Trilok_**<br>**_Chandra as_**<br>**_clarified in_**<br>**_Charlie_**|**_Multiplier_**<br>**_specified in_**<br>**_Second_**<br>**_column in_**<br>**_the table in_**<br>**_Second_**<br>**_Schedule to_**<br>**_the MV Act_**|**_Multiplier_**<br>**_actually_**<br>**_used in_**<br>**_Second_**<br>**_Schedule to_**<br>**_the MV Act_**<br>**_(as seen_**<br>**_from the_**<br>**_quantum of_**<br>**_compensaio_**<br>**_n)_**| |---|---|---|---|---|---| |1|2|3|4|5|6| |Upto 15 yrs.<br>15 to 20 yrs.<br>21TO25YRS.<br>26TO30YRS.<br>31TO35YRS.<br>36TO40YRS.<br>41TO45YRS.<br>46TO50YRS.<br>51TO55YRS<br>56TO60YRS.<br>61TO65YRS.<br>ABOVE65YRS.|-<br>16<br>15<br>14<br>13<br>12<br>11<br>10<br>9<br>8<br>6<br>5|-<br>18<br>17<br>16<br>15<br>14<br>13<br>12<br>11<br>10<br>08<br>05|-<br>18<br>18<br>17<br>16<br>15<br>14<br>13<br>11<br>09<br>07<br>05|15<br>16<br>17<br>18<br>17<br>16<br>15<br>13<br>11<br>8<br>5<br>5|20<br>19<br>18<br>17<br>16<br>15<br>14<br>12<br>10<br>8<br>6<br>5| 5 MFA No.177/2003 In paragraph 42, following observation is made regarding the application of multiplier: _“42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M- 15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”_ In **Sarla Verma** 's case (supra), the Supreme Court considered the scope of payment of compensation at an enhanced rate reckoning future prospects. It is to be remembered that the principles for calculating compensation in the case of death of an earning member cannot be bodily lifted and applied in this case as admittedly he was a student at the time of sad demise. 6. Learned counsel for the contesting respondent drew our attention to the decision rendered by the Supreme Court in **General** 6 MFA No.177/2003 **Manager, Kerala State Road Transport Corporation v. Susamma Thomas (1994 (1) KLT 67)** to advance a contention that the assessment of damages to compensate the dependants is beset by difficulties because from the nature of things, many imponderables in life, for eg., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live upto the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or he might have lost his employment or income altogether, etc. will have to be taken into account. Therefore, it is contended on behalf of the contesting respondent that the claim made in the petition is highly exorbitant. 7. Learned counsel for the appellants placed reliance on **Kishan** **Gopal & another v. Lala & others (2013 SAR (Civil) 1067)** . In this case, the Supreme Court considering the scope and applicability of II Schedule to the Act, reversed the finding of the High Court and granted compensation. Addition in income for future prospects was considered by the Supreme Court in **K.R.Madhusudan & others v. Administrative Officer & another (2011 SAR (Civil) 283)** . The application of **Sarla Verma** 's case (supra) was also considered therein. Later, in **Reshma** 7 MFA No.177/2003 **Kumari v. Madan Mohan (2013 (2) KLT 304)** three learned Judges of the Supreme Court approved the guidelines in **Sarla Verma** 's case (supra). 8. Applying the above principles of law, we find that certain modifications are to be made in respect of compensation granted under certain heads. The accident was on 17.05.1998. The rates in the II Schedule to the Act was fixed in the year 1994. Therefore, we find that an amount of `4,000/- would be the appropriate compensation towards funeral expenses. It is seen that the deceased survived for almost one day after the accident. The Tribunal awarded compensation to the tune of `10,000/- for pain and sufferings. We find that the proper amount would be `20,000/- in that head. Tribunal assessed compensation on the assumption that the deceased normally would have started earning at the age of 21 years and he would have got married at the age of 28. Even though this line of thinking adopted by the Tribunal cannot be said to be illogical, on applying the principles stated in paragraphs 31 and 32 in **Sarla Verma** 's case (supra), we find that this finding of the Tribunal is of not much relevance. It has been held by the Supreme Court in **Sarla Verma** 's case (supra) that where the deceased was a bachelor and claimants are the parents, the deduction would normally be 50% for his personal and living expenses. The possibility of deceased bachelor getting married in short time, had he survived, and reduction in contribution subsequent to 8 MFA No.177/2003 marriage were considered in the above case. Therefore, from the facts and circumstances revealed in this case and also by applying the principles in **Sarla Verma** 's case (supra), we are of the view that it can be safely assumed that 50% of income that the deceased would have earned, if he were alive, would have been spent for the appellants. The Tribunal took `15,000/- as notional income for calculating compensation. Considering the social strata of the deceased, and the financial background of the appellants and also the fact that the deceased could have acquired high educational qualifications, we find that `30,000/- per annum would be the proper notional income in this case. Going by the statement of law in **Sarla Verma** 's case (supra), it can be seen that the appropriate multiplier should have been '18'. When calculated so, dependency value will come to `2,70,000/-. Therefore, the total compensation that would have been payable is `2,94,000/-. The Tribunal has awarded `1,55,600/- as compensation. Therefore, the additional compensation payable in this case is `1,38,400/-. In the result, we allow the appeal. An additional compensation of `1,38,400/- (Rupees one lakh thirtyeight thousand and four hundred only) is granted to the appellants in the proportion stated by 9 MFA No.177/2003 the Tribunal. Additional compensation will carry interest at the rate of 9% per annum from the date of petition till actual payment. Appellants are also entitled to costs of this proceedings. ## **K.M.JOSEPH, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**