Sainabha and Ajeeba v. Nanda Kumar and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932** **MACA.No. 230 of 2009()** - **----------------------** ## **OPMV.596/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR** **....................** ## **APPELLANT(S): PETITIONERS 2 AND 3** **---------------------------------** **1. SAINABHA, W/O. MOIDU, KALAMBAN HOUSE, EDAYAOOR AMSOM, POOKKATTIRI DESOM, TIRUR TALUK.** ## **2. AJEEBA, D/O. MOIDU,** **-DO-** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT(S): RESPONDENTS** **--------------------------** **1. NANDA KUMAR, S/O. SUKUMARAN, PADIKAVEETIL HOUSE, PATHTHRAMANGALAM, VELLARAKKAD, TRICHUR.** **2. CHANDRA SETHARAN, S/O. PANANISWAMI, PAX WILLA, JAYAPRAKASH LANE, POTTAKKUNNAM, THRISSUR. (DELETED)** **3. THE NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, THRISSUR.** **4. MOIDU, S/O. SAIDALI.K, KALAMBAN HOUSE, EDAYOOR AMSOM, POOKKATTIRI DESOM, TIRUR TALUK.** **The 2[nd] respondent is removed from the party array at the risk of the appellant as per order dated 19-03-2010 in I.A.No.760/2010.** **ADV. SRI.M.A.GEORGE FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.230 OF 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of March, 2010 ## **JUDGMENT** ## Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.596/2005 of Motor Accidents Claims Tribunal, Tirur challenge the judgment and award of the Tribunal awarding a compensation of Rs.1,50,000/- for the loss caused to them on account of the death of deceased Noushad Babu in a motor accident. 2. The facts leading to this appeal in brief are these : Petitioners are parents and sister of deceased Noushad Babu. Deceased was aged 22 at the time of the accident and was a bus driver. On April 3, 2005, deceased was driving the bus bearing Reg.No.KL10/L/1531 from Kuttippuram to Valanchery. At about 5.45 p.m. when he reached the place called Moodal, another bus bearing Reg.No.KL11/M 3135 came at a high speed from the opposite side and dashed against the bus of the deceased. Deceased sustained serious injuries. He succumbed to the injuries sustained while undergoing treatment in MACA.No.230/09 2 the hospital. According to the claimants, the accident occurred due to the negligence on the part of the first respondent who was the driver of the bus bearing Reg.No.KL 11/M 3135. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants who are the dependents and legal heirs of the deceased. 3. Respondents 1 and 2, the driver and owner of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending bus filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the deceased. 4. Exts.A1 to A10 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 1,50,000/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimants and the counsel for the Insurance Company. MACA.No.230/09 3 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation ? 7. The Tribunal awarded a total compensation of Rs. 1,50,000/-. The break up of the amount awarded is as under : Transport to hospital -Rs. 1,500/Pain and suffering of the deceased -Rs. 10,000/Loss of dependency -Rs.1,32,000/Loss of love and affection -Rs. 5,000/Funeral expenses -Rs. 1,500/-------------------Total -Rs. 1,50,000/=========== 8. Counsel for the claimants sought enhancement of compensation for the loss of dependency on the ground that the Tribunal took the monthly income of the deceased as Rs. 3,000/-and his monthly contribution to the claimants as Rs. 1,000/- only which is very low and that as a bus driver, the deceased used to earn Rs.4,000/- per MACA.No.230/09 4 month and also that the Tribunal adopted a multiplier of 11 only which is very low. 9. In the case of death of an individual in a motor accident, multiplier method is the appropriate method to decide the loss of dependency as held by the Apex Court in **Sarala Varma v. Delhi Transport Corporation and another** ( 2009(6) SCC 121). Under this method pecuniary loss is calculated upon an annual basis and total award is arrived at by multiplying the figure assessed as the amount of annual dependency by number of years purchase i.e. number of years benefit was expected to be lost. In the light of the principles laid down in Sarala Varma's case (Supra), the income of the deceased per annum should be determined. Out of the said income, a deduction should be made in regard to the amount which deceased would have spent by himself by way of personal and living expenses. The balance which is considered to be contribution to the dependent family constitutes the multiplicand. Having regard to the age of the deceased and period of active career, appropriate multiplier should be selected. The annual contribution to the family multiplicand when multiplied by such multiplier gives loss of dependency to the family. MACA.No.230/09 5 10. In the present case, the Tribunal took the monthly income of the deceased as Rs. 3,000/-. Admittedly, the claimant was a bus driver by profession. Ext.A10 is the copy of his driving licence which also shows his date of birth as January 1, 1983. In our view, as a bus driver deceased would have been earning a minimum of Rs. 4,000/- per month. Therefore, his monthly income can be reasonably fixed at Rs. 4,000/- per month. 11. The next question is what is the amount to be deducted towards his personal expenses. Admittedly, deceased is a bachelor. The Tribunal deducted 2/3 for his personal expenses and took only Rs. 1,000/- per month as the contribution to the claimants which appears to be not correct. Of course, in the case of a Bachelor 50% of his monthly income has to be deducted towards personal expenses in the normal case. In Sarala Varma's case (Supra), referring the earlier decision of the Apex Court in **Fakeerappa v. Karnataka Cement Pipe Factory** (2004(2) SCC 473, the Apex Court has observed that what would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application and that it would depend upon circumstances of each case. MACA.No.230/09 6 In the present case, the Tribunal deducted 2/3 for his personal expenses taking into consideration the fact that he was a Bachelor and the claimants 1 and 2, the parents were aged 54 and 44 respectively at the time of the accident. The deceased is the only son of the claimants 1 and 2. Therefore, in the normal course, he would have looked after them in their old age. Therefore, we are of the view that only 1/3 of the income of the deceased should be deducted towards personal expenses. Thus calculated, the annual contribution to his family comes to Rs.32,000/- ( (4000 x 12) - 16,000). 12. The next question for consideration is what is the proper multiplier to be adopted in this case. The Tribunal adopted a multiplier of 11. Taking into consideration the fact that first claimant, the father , was aged 54 and second claimant, the mother, was aged 44 at the time of the accident. But deceased was aged 22 at the time of the accident and the second claimant, the mother, was aged only 44 at the time of the accident. Further, the deceased was the only son of claimants 1 and 2. If alive, he would have looked after them in their old age. Therefore, we feel that the proper multiplier that can be adopted in this case is 13. MACA.No.230/09 7 13. Thus calculated, loss of dependency comes to Rs. 4,16,000/- (32,000 x 13). As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 14. Thus, the claimants are entitled to an additional compensation of Rs. 2,84,000/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.230/09 8