Sajeevan, Ananda Jyothi and Darsana v. Simon, Ashok Kumar J., Oriental Insurance Company Ltd., Matha Amruthanandamaaji Matha, National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937 MACA.No. 760 of 2013 () -----------------------AGAINST THE AWARD IN OP(MV)No.766/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM DATED 14-11-2012 ## APPELLANTS/PETITIONERS:- ------------------------------ 1. SAJEEVAN, AGED 52 YEARS, S/O.VELUTHAKUNJU, KOCHUTHOPPIL VEEDU, AZHEEKKAL THURA, ALAPPADU VILLAGE, KARUNAGAPALLY. 2. ANANDA JYOTHI, AGED 46, W/O.SAJEEVAN, KOCHUTHOPPIL VEEDU, AZHEEKKAL THURA, ALAPPADU VILLAGE, KARUNAGAPALLY. 3. DARSANA, AGED 21 YEARS, D/O.ANANDA JYOTHI, KOCHUTHOPPIL VEEDU, AZHEEKKAL THURA, ALAPPADU VILLAGE, KARUNAGAPALLY. ## BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENTS/RESPONDENTS:- ---------------------------------- 1. SIMON, S/O.PONNUMUTHU NADAR, PARAYARUKULATHU PUTHEN VEEDU, KALAPPAKONAM, VELLAI SAKUM, MANALI - 695 505. 2. ASHOK KUMAR J., S/O.GEORGE, PLANKALAPUTHEN VEEDU, VELLARADA, NEYYATTINKARA, PIN - 695 505. 3. THE MANAGER, ORIENTAL INSURANCE COMPLAY LIMITED, LIC BUILDING, CHINNAKKADA, KOLLAM - 691 001. 4. SECRETARY, MATHA AMRUTHANANDAMAJI MATHA, VADAKKE KUNNUMPURAM, EDAPPALLY NORTH P.O., KOCHI - 682 024. 5. THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, PARAMESHWARAN PILLAI BHAVAN, HOSPITAL, KOLLAM - 681 001. R3 BY ADV. SRI.AGI JOSEPH R1 & 2 BY ADV. SRI.V.J.JAYAKUMAR ABRAHAM R5 BY ADV.SRI.M.A.GEORGE,STANDING COUNCIL FOR NATIONAL INSURANCE COMPANY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.760 of 2013 -------------------------------Dated 11[th] March, 2016 ## **JUDGMENT** ## **Mary Joseph, J.** The parents and younger sister of one Vaisak who died in a motor vehicle accident have come up before this Court in appeal seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Kollam (for short 'the Tribunal') in O.P.(M.V) No.766 of 2010 filed under Section 166 of the Kerala Motor Vehicles Act, 1988 (for short 'the Act'). The appellants will be referred to hereinafter as 'the claimants' and the respondents as 'the respondents'. 2. Vaisak met with a motor vehicle accident on 4.2.2010 at Sithara Junction in Adichanalloor Village when a lorry bearing Reg.No.KL-01/H 4489 driven by the 2[nd] respondent dashed on the car bearing Reg.No.KL-07/BE-2463 which was driven by him through Kollam - Thiruvananthapuram National Highway. He sustained fatal injuries in the accident and succumbed to the injuries on 5.2.2010 at Holy Cross Hospital, Kottiyam whereto he was taken after the accident for treatment. Contending that the driver of the lorry was rash and negligent in driving and accordingly, the death of Vaisak was occurred, M.A.C.A.No.760/2013 2 the claimants approached the Tribunal seeking 5,00,000/- as₹ compensation. The Tribunal after appreciating the evidence let in by the claimants as Exts.A1 to A12 passed an award for 4,50,000/- and₹ directed the third respondent to deposit the said sum with interest at the rate of 7.5% per annum from 29.7.2010, the date of the claim petition till realisation. Aggrieved by the said award that the claimants have approached this Court seeking enhancement of the compensation vehemently contending that the Tribunal failed to appreciate the evidence adduced by them in its proper perspective. 3. Sri.Thyparambil Thomas Thomas, the learned counsel appearing for the claimants and Sri.Agi Joseph, the learned counsel appearing for the third respondent, insurer of the offending lorry were heard. 4. It is contended by Sri.Thyparambil Thomas Thomas that the compensation awarded by the Tribunal under various heads is too low and arbitrary. According to him, the deceased was working as a driver in Amrita Television, a Malayalam Channel in India and was getting a salary of 20,000/- therefrom. It is submitted by the learned₹ counsel that though claimed to be earning 20,000/- monthly, in the₹ absence of any material substantiating the same, the Tribunal took ₹ 5,000/- as his monthly income and deducted half of the amount M.A.C.A.No.760/2013 3 towards personal expenses to fix the multiplicand for arriving at the compensation payable to the claimants under the head loss of dependency. According to him, the Tribunal ought to have considered the future prospects of the deceased and deducted only one-fourth from the monthly income to arrive at the proper multiplicand. 5. The learned counsel has drawn our attention to the fact that by awarding a sum of 5,000/- each under the heads, loss of love₹ and affection and loss of estate and by declining compensation under the heads damages to clothing and other articles, pain and suffering, funeral expenses, bystander expenses and extra nourishment, the Tribunal has committed grave error and rectification of the same in appellate interference is expedient in the interest of justice. 6. Per contra, Sri.Agi Joseph, the learned counsel appearing for the third respondent took the contention that the grievance of the claimants has been considered by the Tribunal and awarded just and reasonable compensation as contemplated under Section 166 of the Act and interference of any nature is unwarranted in this appeal. 7. We have gone through the impugned award. It is seen from the description in the impugned award that the claimants have not let any materials in evidence to prove the job and income of the deceased. Ext.A9 the driving licence, Ext.A10, the copy of the SSLC M.A.C.A.No.760/2013 4 Book, Exts.A11 and A12, certificates respectively indicative of completion of VHS education and ITI are produced by the claimants, but none of those documents support their claim that the deceased was a driver earning 20,000/- monthly at the relevant time of his death.₹ But, on the basis of the statement lodged by the First informant, which formed the basis of the registration of Ext.A1, FIR that the deceased was driving the car which belongs to Amritanandamayi madom at the relevant time when he lost his life, the Tribunal concluded that he was a driver by profession and in the total absence of any document evidencing his monthly income fixed the same notionally as 5000/-.₹ On a reading of the impugned award, we see substance in the contention of the learned counsel that the Tribunal deducted half of the monthly income towards personal expenses of the deceased but failed to add any amount to the monthly income towards future prospects while fixing the multiplicand. We could also see that the multiplier was also wrongly taken by the Tribunal as '14' on the basis of the age of the mother of the deceased. Therefore, we have no hesitation to hold that the Tribunal by deviating from the legally accepted mode of calculation has gone wrong and the compensation so arrived at in a totally strange way is liable to be interfered with. In view of the dictum laid down by the Hon'ble Apex Court in **Munna Lal Jain** v. **Vipin Kumar Sharma** M.A.C.A.No.760/2013 5 **((2015) 6 SCC 347),** the Tribunal ought to have taken the multiplier based on the age of the deceased. In the case on hand, the claimants have produced Exts.A9 and A10, which would reveal the date of birth of the deceased and accordingly, his age as 24 years. The appropriate multiplier as per the dictum laid down in the decision in **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))** is `18'. In view of the dictum of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh (2013(3) KLT 89(SC)),** the deceased being of the age below 40 years, 50% should be added to the monthly income in consideration of his future prospects. In the light of **Sarla Verma's case** (supra), the deceased being a bachelor, 50% needs to be deducted from the amount so arrived at after adding 50% to the future prospects. Reckoned in that legally sustainable way, the multiplicand would be ₹ 3,750/-. When the computation is done by taking 3,750/- as the₹ multiplicand and `18' as the multiplier, the sum payable as compensation under the head loss of dependency would be ₹ 8,10,000/-. Accordingly, over and above 4,20,000/- already₹ awarded by the Tribunal, the claimants would be entitled to get ₹ 3,90,000/- in addition under the said head. 8. Evidently, the Tribunal granted only 10,000/- against₹ the claim of the claimants for 20,000/- under the head `funeral₹ M.A.C.A.No.760/2013 6 expenses'. In view of **Rajesh's** case (supra), in the absence of evidence supportive of a higher expenditure, the claimants would be entitled to get a sum 25,000/- under that head and accordingly we₹ award an amount of 15,000/- additionally, under that head. Towards₹ loss of love and affection, the Tribunal has granted only 5,000/-. In₹ view of the reality that a young son was lost by his parents and elder brother by a sister, we are convinced of the inadequacy of the amount awarded by the Tribunal and therefore, a sum of 25,000/- is granted₹ under the said head in addition. Under the head damages to clothing and other articles, the Tribunal declined to grant any sum and we are of the considered opinion to award 1000/-, the conventional sum. It is₹ revealed from the description in the impugned award that Vaisak met with the motor accident on 4.2.2010 and died on 5.2.2010, but the Tribunal failed to award any sum under the head `pain and suffering'. Indisputably, Vaisak sustained fatal injuries and on account of that he must have suffered excruciating pain at least for few hours for which he was alive. Therefore, we are inclined to award 5,000/- under the₹ head pain and suffering. 9. Computed in the way, the claimants would be entitled to get 4,36,000/- additionally. ₹ M.A.C.A.No.760/2013 7 10. In the result, this appeal is allowed. The appellant is found entitled to get 4,36,000/- in addition and the amount so₹ enhanced would carry interest at the rate of 8% per annum from the date of the claim petition till realisation. The third respondent is directed to deposit the enhanced sum with interest as aforesaid within a period of three months from the date of receipt of a copy of this judgment. In case of any default, the claimants are entitled to get interest at the rate of 9% per annum from the date of the claim petition till realisation. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS