Sivanandan C. & Others v. The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 13TH DAY OF DECEMBER 2013/22ND AGRAHAYANA, 1935 MACA.No. 1705 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1075/2001 of ADDL.D.C. & ADDL.MACT,THALASSERY DATED 30-06-2010 APPELLANT(S)/PETITIONER: ------------------------------- 1. SIVANANDAN.C., S/O. KARUNAN, AGED 59 YEARS 2. USHA, W/O. SIVANANDAN, AGED 52 YEARS 3. C. SANAL, S/O. SIVANANDAN, AGED 33 YEARS 4. C. SUNIL, S/O. SIVANANDAN, AGED 28 YEARS (ALL ARE RESIDING AT CHERUVAKKODAN HOUS P.O.AZHIKKAL NORTH, KANNUR DISTRICT.) BY ADV. SRI.M.V.AMARESAN RESPONDENT(S)/RESPONDENT NO.3: ------------------------------------------ THE NEW INDIA ASSURANCE COMPANY LTD., M.G.ROAD, MADIKERI, KODAGU PIN-571201. BY ADV. SRI.VPK.PANICKER BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ma ## S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1705 of 2011 -----------------------------------------------------------------Dated this the 13[th] day of December, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimants in O.P.(M.V.).No.1075/2001 on the file of the Motor Accidents Claims Tribunal, Thalassery, are the appellants herein. The appellants are the parents and brothers of deceased Sapna. They filed the application for compensation for the death of Sapna, who died in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle, driven by the driver, insured with the respondent insurance company. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle insured with the respondent insurance company and awarded a total compensation of 2,33,980/- on various heads as follows:₹ M.A.C.A. No.1705 of 2011 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Transport to hospital|2, 500| |2|Funeral expenses|4, 000| |3|Pain and suffering|10, 000| |4|Loss of love and affection|10, 000| |5|Loss of dependency|2, 07, 480| ||Total|2, 33, 980| Dissatisfied with the quantum of compensation awarded by the tribunal, the appellants have filed this appeal before this court, seeking enhanced compensation. 2. We have heard the learned counsel for the appellants and counsel for the respondent/ insurance company. 3. The counsel for the appellants submitted that, the deceased was aged only 24 years and working as hindi teacher in a private school getting 3,500/- per₹ month and apart from that, she was taking tuition for students and also getting an additional amount of ₹ 2,000/- per month and thereby she had getting a total income of 5,500/-. But the tribunal has arbitrarily fixed₹ her monthly income as 2,000/-, which is very low.₹ M.A.C.A. No.1705 of 2011 3 Further the tribunal has taken 13 as multiplier, reckoning the age of the dependants, which is not correct and as per the decision of **Amrit Bhanu Shali and others v. National Insurance Co. Ltd., and others (2012 ACJ 2002),** the proper multiplier is based on the age of the deceased and not on the age of the dependants. The amount awarded under the head loss of love and affection, funeral expenses etc., are also on the lower side. No amount was awarded under the head for loss of estate. So according to the learned counsel for the appellants, the appellants are entitled to get enhancement on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that, the age of the dependants has to be taken in the case of a bachelor for adopting the proper multiplier and being a bachelor, as per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802** M.A.C.A. No.1705 of 2011 4 **(SC)]** , half of the income has been deducted for her personal expenses, but the tribunal has deducted only 1/3[rd] , which is not correct. The total compensation awarded is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellants was that, the deceased was working as hindi teacher in a private school and also taking tuitions to students and getting a monthly income of 5,500/-₹ per month. But no acceptable evidence was adduced on the side of the appellants to prove this fact. Considering that, she is a qualified person working as hindi teacher, we feel that the amount of 2,000/- taken by the tribunal appears to₹ be on the lower side and also considering the future prospects etc., we re-fix the monthly income of the deceased as 3,000/- per month. As per the decision₹ M.A.C.A. No.1705 of 2011 5 reported in Amruth Bhanu Shali’s case(supra), followed by us in **Annamkutty v. United India Insurance Co. Ltd.,** ( **2013 (4) KLT 160)** , the proper multiplier will have to be taken on the basis of the age of the deceased and not on the age of the dependants. The deceased was aged only 24 years. As per Sarla Verma’s case (supra), the proper multiplier to that age group is 18. Since she was a spinster at the time of her death, half of the income has to be deducted for her personal expenses instead of 1/3[rd] deducted by the tribunal. If a re-calculation is made on that basis, the appellants will be entitled to get a compensation of 3,24,000/-(3,000x12x18x1/2) instead of₹ ₹ 2,07,480/- awarded by the tribunal under the head loss of dependency and we award this amount under that head. 7. The deceased was aged only 24 years and the parents were also not that old. They will have to live with the feeling of loss of their daughter for the M.A.C.A. No.1705 of 2011 6 remaining period of their life. They have lost the love and affection and support of their daughter at this age. So considering this fact, the amount of 10,000/- awarded₹ by the tribunal under the head loss of love and affection appears to be on the lower side and we enhance the same to 20,000/-. Similarly, we are inclined to enhance the₹ compensation under the head funeral expenses to ₹ 10,000/- from 4,000/-. No amount was awarded under₹ the head loss of estate. Usually a conventional amount will be awarded. So we fix that amount as 10,000/-.₹ Though, persuasive arguments were made by the counsel for the appellants, for getting enhancement under other heads, we are not inclined to enhance any amount under other heads, as we are of the opinion that the amount awarded by the tribunal appears to be just and proper under other heads. In all, the appellants will be entitled to get an additional compensation of 1,42,520/-, over₹ and above what has been awarded by the tribunal, which M.A.C.A. No.1705 of 2011 7 the respondent insurance company is liable to pay with 9% interest per annum from the date of the claim petition, till date of payment. But the appellants are not entitled to get interest for 314 days of delay in filing the appeal, which was condoned on that condition as per order in C.M.A.No.2566/2011. Two months time is granted to the insurance company to deposit this amount as well. Since respondents 3 and 4 are major brothers of the deceased, the additional amount shall be payable to appellants 1 and 2 alone in equal shares. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss