SANTHA v. L.SIVAKUMAR, B.MADHULINGAM, Bajaj Alliance General Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937 **MACA.No. 1980 of 2012 () -------------------------** (AGAINST THE AWARD IN OPMV 677/2010 of M.A.C.T OTTAPPALAM DATED 28-06-2012) APPELLANT(S)/APPELLANTS/PETITIONERS: ----------------------------------- 1. SANTHA, W/O.RAMANKUTTY @ KARUPPAN. 2. RAMANKUTTY @ KARUPPAN CHETTIYAR S/O.PONNAMMA. 3. K.RADHAKRISHNAN, S/O.RAMANKUTTY @ KARUPPAN. 4. KANCHANA.K. D/O.RAMANKUTTY @ KARUPPAN. ALL ARE RESIDING AT KONDATHODIKKUNNU HOUSE, VENGASSERY P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS RESPONDENTS/RESPONDENTS: -------------------------- 1. L.SIVAKUMAR S/O.LAKSHMANAN, RESIDING AT 77, 1ST STREET, PIONEER NAGAR, VEERAPANDIPIRIVU, COIMBATORE, TAMILNADU. 2. B.MADHULINGAM S/O.N.K.BELLAN, RESIDING AT 176/C 56, CHERAN COLONY, THUDIYALUR, COIMBATORE, TAMILNADU. 3. BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LIMITED DOOR NO.11 (OFFICE NO.6A), PEOPLE'S PARK, IIIRD FLOOR, GOVERNMENT ARTS COLLEGE ROAD, COIMBATORE, TAMILNADU-641018. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **M.A.C.A.No.1980 OF 2012** ......................................................................... **Dated this the 4[th] March, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Inadequacy of the compensation awarded by the Tribunal in respect of the death of a person aged 21 occurred in a road traffic accident on 07.06.2009 is the subject matter of challenge in this appeal. 2. The deceased in the instant case was proceeding on a motor cycle bearing No.KL.11/K.9375 and while so, when he reached the place of occurrence, he was knocked down by a car bearing No.TN-38AA/3136 that came from the opposite direction, as driven, owned and insured by the respondents 1 to 3 respectively, which led to the claim petition filed by the legal heirs, who are the parents and siblings. 3. The claim projected before the Tribunal was that the deceased was working as a 'machine operator' earning a monthly **2** ## **M.A.C.A.No.1980 OF 2012** salary of Rs.10,000/-. The claim was resisted by the Insurance Company, besides general grounds, contending that the driver of the car was not having valid driving licence and that the insured permitted the said person to drive the vehicle knowingly, thus in violation of the statutory/policy conditions. The evidence adduced before the Tribunal consists of oral deposition of first appellant/claimant as P.W.1 and documents produced and marked as Exts.A1 to A13. The respondents chose to produce copy of the policy, acknowledgement card in respect of the lawyer notice with postal receipt and copy of the driving licence as Exts.B1 to B3. Based on the materials on record, the Tribunal arrived at a finding that the accident was solely because of negligence on the part of the driver of the car and proceeded to fix compensation accordingly. 4. It was sought to be established before the Tribunal that the deceased was a 'mechanic' and in support of the same, the salary certificate issued by an establishment by name, 'Surya **3** ## **M.A.C.A.No.1980 OF 2012** Enterprises' was produced as Ext.A13. As per the said certificate, the deceased was drawing a monthly sum of Rs.5,992/-. The Tribunal observed that the said certificate as to the occupation or income was not proved and it was accordingly, that a notional figure of Rs.3,500/- per month was reckoned. After deducting 50% towards personal expenses, contribution to the family was reckoned as 50%; and adopting the multiplier of '11', based on the age of the parents, the compensation for dependency was worked out as Rs.2.31 lakhs. Awarding amounts under other heads, the total compensation was fixed as Rs.2.64 lakhs, which was directed to be satisfied with interest at the rate of 7% per annum (with liberty to the insurer to recover the same from the owner and driver of the offending vehicle), from the date of petition, which is sought to be enhanced by filing the present appeal. 5. Heard the learned counsel for the appellants as well as the learned counsel appearing fort the Insurance Company. **4** ## **M.A.C.A.No.1980 OF 2012** 6. Since notice to the respondents 1 and 2 was not initially served upon them, they were sought to be served by way of paper publication. The matter was published in the concerned daily and copy of the publication has been produced before this Court. There is no appearance on behalf of the said respondents. 7. After going through the proceedings, we find that the occupation or income was not proved and so also, no material was adduced before the Tribunal or even before this Court as to the qualification or experience of the deceased, if he were doing any skill work. It is seen that as per the order dated 12.03.2013 passed in I.A.No.659 of 2013, another Bench of this Court, noting that notice sent to the respondents 1 and 2 had been returned with the postal endorsement “left”, allowed the I.A., directing the appellants to publish notice in the same newspaper in which notice was published in the Original Petition before the Tribunal. It was accordingly, that publication was effected (copy of the publication was produced) and service was completed. **5** ## **M.A.C.A.No.1980 OF 2012** 8. Coming to the actual extent of compensation payable, even though no reliable evidence was adduced as to the occupation or income and although the certificate produced as Ext.A13 was not proved, we find that the deceased was an ablebodied youth of 21 years. Considering the date of the accident and the economic conditions prevailing on the date of the accident, we find it appropriate to reckon the notional monthly income at Rs.4,000/-. The multiplier adopted by the Tribunal as '11' is based on the age of the parents, which does not appear to be correct and by virtue of settled position of law based on the verdict passed by the Apex Court as on date, appropriate multiplier has to be fixed with reference to the age of the deceased. Since the deceased was aged 21 years, the multiplier ought to have been '18'. We adopt the same. On re-working the compensation towards loss of dependency, it comes to Rs.4,32,000/- (4000 x 12 x 18 x 50/100). After deducting the sum of Rs.2,31,000/-, already awarded, the balance payable **6** ## **M.A.C.A.No.1980 OF 2012** comes to **Rs.2,01,000/-.** 9. The Tribunal has awarded only a sum of Rs.10,000/towards loss of love and affection and Rs.5,000/- towards funeral expenses. By virtue of the law declared by the Apex Court in _**Rajesh vs. Rajbir Singh**_ [ **2013 (3) KLT 89 (SC)]** the amount payable under the above two heads are Rs.1,00,000/and Rs.25,000/.- respectively. As such, the balance payment to the tune of **Rs.90,000/- and Rs.20,000/** - respectively have to be satisfied under the above two heads. It is awarded accordingly. The Tribunal has awarded only a sum of 5,000/towards loss of estate and we grant enhancement by a further sum of Rs **.5,000/-** under the said head as well. Thus the total balance compensation payable comes to Rs. **3,16,000/-** (Rupees three lakhs and sixteen thousand only) which requires to be satisfied with interest at the rate of 9% per annum from the date of petition, till realisation. Since policy is admitted, we direct the Insurance Company to have the same satisfied with interest **7** ## **M.A.C.A.No.1980 OF 2012** as aforesaid at the earliest, at any rate, within one month from the date of receipt of a copy of the judgment. 10. However, since violation of statutory/policy condition has been established by the Insurance Company before the Tribunal and since the said right of recovery has already been granted by the Tribunal and further since the said finding in this regard has not been chosen to be challenged by the respondents 1 and 2, who have not turned up before this Court, we affirm the said finding and grant the right of recovery in favour of the Insurance Company, from the respondents 1 and 2, after satisfying the liability to the appellants/claimants, as aforesaid. Appeal stands allowed to the said extent. ## **P.R. RAMACHANDRA MENON, JUDGE** ## **ANIL K. NARENDRAN, JUDGE** lk