Prabhakaran and Indira v U.P. Krishnankutty, Shyju, and The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938** ## **MACA.No. 1986 of 2012 () -------------------------** ## **AGAINST THE AWARD IN OPMV 2383/2005 of MACT,THRISSUR DATED 16-05-2012** ## **/APPELLANT/PETITIONER:** **---------------------** ## **1. PRABHAKARAN** **AGED 47 YEARS, S/O. SIVARAMAN, PARAKKAL HOUSE, MANNUTHY, THRISSUR DISTRICT,** **2. INDIRA, AGED 42 YEARS, W/O. PRABHAKARAN, PARAKKAL HOUSE, MANNUTHY, THRISSUR DISTRICT.** ## **BY ADV. SRI.M.B.PRAJITH** ## **RESPONDENTS/RESPONDENTS:** ## **-----------------------** ## **1. U.P. KRISHNANKUTTY** **MANAGING PARTNER, U.P.MATERIALS, AMBALLUR, ALAGAPPA NAGAR, THRISSUR DISTRICT, PIN-680543.** **2. SHYJU, S/O. RAMAN, THOTTILAL HOUSE, KALAKALLU, VARAKKARA P.O., AMBALLUR, THRISSUR DISTRICT, PIN-680325.** **3. THE NATIONAL INSURANCE CO. LTD. NORTH PARUR, PIN-683513.** **R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.1986 of 2012 ....................................................... Dated this the 10[th] day of June, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimants in O.P.(MV)No.2383 of 2005 on the file of the Motor Accidents Claims Tribunal, Thrissur, are the appellants herein. The claimants filed the claim petition for compensation for the death of their son, Pramod, who died in a motor vehicle accident occurred on 17.8.2010. The case of the claimants was that on the fateful day, the deceased was driving an auto rickshaw with No.KL-8G-1679 along Thrissur-Palakkad National Highway and when it reached Mulayam, the tempo van with No.KL-8-T-2603 driven by the second respondent, owned by the first respondent and insured by the third respondent came in a negligent manner and hit against the auto rickshaw driven by the deceased. He sustained severe injuries and he died on the same day while undergoing treatment at Medical College Hospital, Thrissur. He was the eldest son of the petitioners. He was getting a monthly income of Rs.4,000/- per month as an auto rickshaw driver. They claimed a total compensation of Rs.6,30,000/- on various heads. 2. Respondents 1 and 2 remained absent. 3. Third respondent insurance company appeared and filed a written statement contending that the tempo van was insured with M.A.C.A.No.1986 of 2012 2 them, but according to them, the accident occurred due to the negligence of the deceased and he was not having driving licence to drive auto rickshaw. So there is contributory negligence on the part of the deceased. They denied the allegation of negligence on the part of the tempo driver. The quantum of compensation claimed is exorbitant. A petty case was registered under section 3(1) of the Motor Vehicle Act against deceased Pramod. They prayed for dismissal of the application. 4. No oral evidence was adduced on either side. Exts.A1 to A6 were marked on the side of the claimants. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the van by the second respondent and awarded a total compensation of Rs.2,84,000/- on various heads as follows: Transportation : Rs.2,000/Funeral expenses : Rs.5,000/Pain & sufferings : Rs.10,000/Loss of love ad affection : Rs.10,000/Loss of dependency : Rs.2,52,000/Loss of estate : Rs.5,000/--------------Total : Rs.2,84,000/========= The tribunal held that respondents 1 to 3 are jointly and severally liable to pay the amount and directed the insurance company/the third 3 M.A.C.A.No.1986 of 2012 respondent to deposit the amount. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellants/claimants before the court below. 5. Heard Sri. M.B. Prajith, learned counsel appearing for the appellants and Sri. Jacob Mathew, learned senior counsel appearing for the third respondent as notice to respondents 1 and 2 is dispensed with. 6. Learned counsel for the appellants submitted that the court below had taken only Rs.3,000/- as monthly income of the deceased which is very low. Further no future prospects have been taken into consideration for the assessing compensation. The court below had erred in taking the age of the mother for selecting multiplier which is against law. The amounts awarded under the heads pain and suffering, love and affection and funeral expenses are very low. Considering the circumstances, according to the counsel for the appellant, they are entitled to get the enhanced compensation on all heads. 7. On the other hand, learned counsel for the insurance company submitted that earlier the application was filed under section 163 A of the Motor Vehicle Act, but the tribunal had suo motu considered the application under section 166 of the Act, which is not correct. Further the amount awarded under various heads itself is M.A.C.A.No.1986 of 2012 4 excessive and the tribunal was not justified in not attributing negligence against the auto rickshaw driver, who had driven the vehicle without driving licence. So no interference is called for. 8. Though the submission made by the counsel for the insurance company was that the court below was not justified in converting the application under section 166 of the Act, that has no substance as even as per the allegations and the amount claimed as income, the application under section 163 A is not maintainable. So the court below perfectly justified in treating application under section 166 of the Motor Vehicles Act. 9. The insurance company has not filed any appeal against the finding of negligence. They cannot now attribute that aspect in the appeal filed by the claimant challenging the quantum of compensation alone. So we are not going into those aspects in this appeal. 10. The case of the claimants in the claim petition was that the deceased was aged 22 years and an auto rickshaw driver and getting Rs.4,000/- per month and he is their eldest son. It is fairly conceded that he was not having driving licence to drive auto rickshaw. They have not produced any document to prove his actual income as well. So under the circumstances, the court below was perfectly justified in taking Rs.3,000/- as monthly income of the deceased for the purpose M.A.C.A.No.1986 of 2012 5 of awarding compensation under the head loss of dependency. But the court below had not taken future prospects. It is settled law in view of the dictum laid down in _**Amrit Bhanu Shali & Others v.**_ _**National Insurance Company Ltd. & Others (2012 (11) SCC 738)**_ and _**Rajesh v. Rajbir Singh** [2013(3) KLT 89(SC)],_ even in cases where there is no permanent income, future prospects will have to be taken into consideration for that purpose and up to age of 40 years, it must be 50% of the income, upto the age of 50 years, it is 30% and upto the age of 60 years it is 15% and after 60 years they are not entitled to get the benefits of future prospects being added to the income taken. Further the court below also erred in taking the multiplier on the basis of the age of the mother. In _**Amrit Bhanu Shali's**_ case (supra) the Supreme Court has taken the view that for the purpose of selecting the multiplier, it is the age of the deceased and not the age of the claimants that has to be taken into consideration and that view has been affirmed by the three judges bench of the Supreme court in _**Munnalal Jain and Another**_ _**v. Vipinkumar Sharma and others**_ (JT 2015 (5) SC 1). So the tribunal was not justified in selecting the multiplier on the basis of the age of the mother. If the age of the deceased is taken, the multiplier as per _**Sarla Verma (Smt) and others v. Delhi Transport**_ 6 M.A.C.A.No.1986 of 2012 _**Corporation and another** (2009(6)SCC 121)_ will be 18. The tribunal was perfectly justified in deducting 50% of the monthly income for his personal expenses as the deceased was a bachelor. If a recalculation is made on the above materials, the appellants will be to get an amount of Rs.4,86,000/- [(3000x150%)=4500x12x18x1/2] and deducting Rs.2,52,000/- awarded by the tribunal, they will be entitled to get an additional amount of Rs.2,34,000/- under the head loss of dependency. The court below had awarded only Rs.10,000/under the head compensation for love and affection for the parents. They were aged only 47 and 42 years respectively at the time of the accident. It is averred in the petition that the deceased was the eldest son of the claimants. So they have lost the support of the eldest son for the remaining period of their lives. So considering this aspect, we feel that the amount of Rs.10,000/- awarded by the tribunal is on the lower side. We enhance the same to Rs.50,000/-, thereby the claimants will be entitled to get an additional amount of Rs.40,000/- under the head compensation for loss of love and affection. The tribunal has awarded only Rs.5,000/- under the head funeral expenses. In _**Amrit Bhanu Shali's**_ case the Supreme Court has held that apart from the actual funeral expenses, sum other amount will have to be incurred for conducting religious rites as well, M.A.C.A.No.1986 of 2012 7 which has to be taken into consideration while awarding compensation under the head funeral expenses. So we are inclined to enhance the same to Rs.10,000/- from Rs.5,000/- under that head and thereby they will be entitled to get an additional amount of Rs.5,000/-under the head funeral expenses. We are not inclined to enhance any amount under other heads as the amounts awarded under other heads appears to be just and proper. So the appellants will be entitled to get an additional compensation of Rs.2,79,000/-which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit the amount. The additional amount awarded also can be shared as directed by the tribunal among the claimants. Considering the circumstances, the parties are directed to bear their respective costs in the appeal. With the above modification of the impugned order of the tribunal, the appeal is allowed in part and disposed of accordingly. ## **Sd/** ## **P.N. RAVINDRAN, JUDGE.** ## **Sd/-** ## **K. RAMAKRISHNAN,JUDGE.** **cl** /true copy/ P.S to Judge