Roslind M.J. and Others v. Aliyar; V.P. Pradeep; The National Insurance Company Limited; M.R. Sunil

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939 MACA.No. 358 of 2010 ( ) ------------------------AGAINST THE AWARD IN O.P(M.V)2283/2004 of M.A.C.T.,ERNAKULAM DATED 13-10-2008 ## APPELLANTS/PETITIONERS: ------------------------------ ## 1. ROSLIND M.J., AGED 33 YEARS, WIFE OF LATE K.S.JOHNSON, 2. RINEESHA K.J. (MINOR) AGED 12 YERAS, DAUGHTER OF LATE K.S.JOHNSON, D.O.B 07.11.1997. 3. REBIN JOSE K.J., (MINOR) AGED 9 YEARS, SON OF LATE K.S. JOHNSON,, D.O.B.29.09.2000, (MINOR APPELLANTS 2 & 3 ARE REP., BY THEIR NEXT-FRIEND; MOTHER & GUARDIAN THE 1ST APPELLANT. ALL APPELLANTS ARE RESIDING AT KATTIKKADU HOUSE, 20/2637, PERUMPADAPPU, PALLURUTHY P.O., PALLURUTHY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.) BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. ALIYAR, S/O.IBRAHAM, 239/A, PARAMKUDY HOUSE, KUNNATHUNADU, (VIA) PERUMBAVOOR. 2. V.P.PRADEEP, S/O.PADMANABHAN NAIR, VALLOTHU VEETTIL, KAITHAKKADU,, PATTIMATTOM,KUMARAPURAM P.O., 3. THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ERNAKULAM, KOCHI 682016. 4. M.R.SUNIL, S/O.RAMAKRISHNAN, MANCHERY HOUSE, NALUKETTU P.O., TRICHUR DISTRICT. R3 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- **M.A.C.A.No.358 of 2010** -------------------------------- ## **Dated this the 22[nd ] day of June, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Ernakulam dated 13.10.2008 in O.P.(M.V)No.2283 of 2004, a claim petition filed by the appellants/claimants under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Johnson, husband of the first appellant and father of the second and third appellants, who died in a motor accident occurred on 13.5.2003 while proceeding on a motorcycle. When the motorcycle reached the place of accident, a mini lorry bearing Reg.No.KL-5A/331 owned and driven by the first and second respondents respectively, hit the motorcycle and the deceased sustained fatal injuries. The third respondent is the insurer and the 4[th] respondent is the registered owner of the said lorry. While undergoing treatment, the deceased succumbed to the injuries on the very next day. Alleging that the accident occurred due to the rash and negligent driving of the mini lorry by the second respondent driver, claim petition was filed before the Tribunal, claiming a M.A.C.A.No.358 of 2010 2 ## total compensation of 25,00,000/- under different heads. ₹ 2. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellants/claimants. The first appellant was examined as PW1 and an officer of the Cochin Port Trust, where the deceased was working as Tally Supervisor, was examined as PW2. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the evidence and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the mini lorry by the second respondent driver. Since the said vehicle was covered by a valid insurance policy at the time of accident, the third respondent insurer was held liable to indemnify the owner of the said vehicle. Under different heads, the Tribunal awarded a total compensation of 13,19,750/- and directed the third respondent₹ insurer to deposit the said amount before the Tribunal, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate costs, within one month from the date of the award, failing which the appellants/claimants will be entitled for interest at the rate of 9% per annum. The amount of compensation was directed to be apportioned between the appellants/claimants in the ratio 50:25:25. M.A.C.A.No.358 of 2010 3 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. 5. Heard arguments. 6. Admittedly, the accident occurred on 13.5.2003 while the deceased was travelling on a motorcycle. At the time of accident, the deceased was aged 36 years, who was working as Tally Supervisor in Cochin Port Trust, earning a monthly income of 13,333/-. It has also₹ come out in evidence that, but for the accident the deceased could have continued in service upto 31.5.2025. The Tribunal, after considering Ext.A8 salary certificate and the oral testimony of PW2, who is the Deputy Traffic Manager of Cochin Port Trust, took the monthly income of the deceased as 20,000/-, after taking into account future prospects of the₹ deceased, for the purpose of assessing dependency compensation. A deduction of 15% of the said amount was made towards statutory deductions (income tax, etc.) and a further deduction of 1/3[rd] towards the personal and living expenses of the deceased. A deduction of 50% of the monthly income was made towards personal and living expenses during post service period, stating that during old age there is a possibility of incurring additional expenditure for medicine, travel and for other M.A.C.A.No.358 of 2010 4 personal needs. Accordingly, applying the multiplier of '13', the Tribunal awarded a sum of 12,38,000/- ₹ under the head loss of dependency. The method adopted by the Tribunal in the matter of the assessment of compensation under the head loss of dependency at 12,38,000/- ₹ is not discernible from the impugned award. The fact that the Tribunal did not adopted a uniform multiplicand for that purpose is discernible from Para.11 of the award. 7. The accident occurred on 13.5.2003 and at the time of accident, the deceased was aged 36 years, who was working as Tally Supervisor in Cochin Port Trust, earning a monthly income of 13,333/-.₹ But for the accident the deceased could have continued in service upto 31.5.2025. Therefore, as on the date of accident, the deceased was having 22 years of remaining service. Going by the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104)** the multiplier applicable to persons in the age group 36 to 40 years is '15'. In **Puttamma v. Narayana Reddy (AIR 2014 SC 706)** the Apex Court held that, in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of the Apex Court in the case of **Sarla Verma** 's case ( _supra_ ) as affirmed in the case M.A.C.A.No.358 of 2010 5 of **Reshma Kumari [(2013) 9 SCC 65]** . Therefore, the assessment of compensation under the head loss of dependency made in the impugned award is patently illegal, which warrants interference in this appeal. 8. From the materials and evidence on record, we find that at the time of accident, the deceased was earning a monthly income of ₹13,333/-. After deducting 15% of the said amount (i.e., 1,999.95)₹ towards statutory deductions like income tax liability, the monthly income would come to ₹11,333.05, which can be rounded to 11,333/₹ -. In view of the law laid down by the Apex Court in **Rajesh** v. **Rajbir Singh (2013 (3) KLT 89)** , 50% of the monthly income of the deceased, who was aged 36 years at the time of accident, should be added towards future prospects, i.e., 5,666/- (11,333x50/100). Therefore, the multiplicand₹ should be taken as 16,999 (11,333+5,666). Applying the multiplier of '15' and deducting 1/3[rd] of the said amount towards the personal and living expenses of the deceased, the compensation payable under the head loss of dependency is reworked as 20,39,880/- (16,999x12x15x2/3). After₹ deducting ₹12,38,000/awarded by the Tribunal, the additional compensation payable under this head comes to **₹ 8,01,880/-** . 9. Towards funeral expenses, the Tribunal awarded a sum of 3,000/-. In₹ **Rajesh's case (supra)** , the Apex Court re-fixed the M.A.C.A.No.358 of 2010 6 compensation payable under this head as 25,000/-. In that case, the₹ accident was of the year 2007. In the instant case, the accident is of the year 2003. In such circumstances, we deem it appropriate to re-fix the compensation payable under the head funeral expenses as 15,000/-,₹ resulting an additional compensation of **₹ 12,000/-** . 10. Towards loss of love and affection, the Tribunal awarded a sum of 10,000/- each to the second and third appellants who are the₹ minor children of the deceased. In **Rajesh's case (supra)** , the Apex Court awarded a sum of 1,00,000/- under this head for three minor₹ children of the deceased in that case, who died in a motor accident occurred in the year 2007. In that case, the accident is of the year 2003 and the deceased is survived by two minor children, Therefore, we deem it appropriate to re-fix the compensation under this head as 75,000/-₹ payable to the second and third appellants, resulting an additional compensation of **₹ 55,000/-** . 11. Towards loss of consortium, the Tribunal awarded a sum of ₹15,000/-. In **Rajesh's case (supra)** , the Apex Court re-fixed the compensation payable under this head as 1,00,000/-. In that case, the₹ accident was of the year 2007 and the deceased who was aged 33 years was survived by his widow who was still younger. In the instant case, the M.A.C.A.No.358 of 2010 7 accident is of the year 2003 and at the time of accident, the first appellant widow was aged 28 years. In such circumstances, we deem it appropriate to re-fix the compensation under this head as **₹ 75,000/-** , resulting an additional compensation of **₹ 60,000/-** payable to the first appellant. 12. The compensation awarded by the Tribunal under other heads, namely, transportation expenses (₹2,000/-), pain and suffering (₹10,000/-), medical expenses (₹21,750/-), and loss of estate (₹10,000/-) represents just and reasonable compensation, which warrants no enhancement in this appeal. 13. In the result, the appellants/claimants will be entitled for an additional compensation of **₹ 9,28,880/-** (8,01,880+12,000+55,000+ 60,000) in this appeal. 14. This appeal is of the year 2010. The memorandum of appeal was presented on 21.12.2009 along with a C.M.Application to condone the delay of 56 days in filing the appeal, which was numbered as C.M.Appl.No.455 of 2010, wherein notice was ordered to the respondents by speed post on 1.3.2010. The notice issued to the first respondent owner was returned with an endorsement 'not known' and that issued to the second respondent driver was 'not returned after service'. Despite the M.A.C.A.No.358 of 2010 8 same, no steps were taken to complete service of notice on the said respondents. On 24.11.2016, when C.M.Appl.No.455 of 2010 was listed before the Bench in the 'defect list', the learned counsel for the third respondent insurer submitted that there is no dispute as to the liability of the said insurer to indemnify the first respondent owner. Based on the said submission, this Court by an order dated 24.11.2016 dispensed with the service of notice on the first and second respondents. Accordingly, C.M.Appl.No.455 of 2010 was allowed condoning the delay of 56 days in filing the appeal, however, subject to the condition that, owing to the inordinate delay in bringing up the C.M. Application, the right to get interest by the appellants/claimants for enhanced compensation, if any, granted in the appeal will be considered later. The appeal remained defective for more than six years on account of the failure to takeout fresh notice to the first and second respondents. Since the third respondent insurer never disputed the liability to indemnify the owner of the offending vehicle, the appellants could have filed an application to dispense with service of notice on the first and second respondents, once the notice issued to the said respondents in March, 2010 returned unserved. In such circumstances, we deem it appropriate to hold that, for the additional compensation awarded in this appeal, the appellants/ M.A.C.A.No.358 of 2010 9 claimants will be entitled for interest at the rate of **7%** per annum only, from the date of claim petition till realisation. 15. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS // true copy // P.S. To Judge