S.M. Reghunathan and others v. JINU PAULOSE and The National Insurance Company Ltd. (MACA No. 2157 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935** **MACA.No. 2157 of 2008 ( )** **------------------------------------** **AGAINST THE AWARD IN OP(MV) 910/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR** **-----------** ## **APPELLANT(S)/CLAIMANTS:** **----------------------------------------** ## **1. S.M.REGHUNATHAN, AGED 61 YEARS,** - **S/O.ACHUTHA MARAR, PALLIPPATT HOUSE, VISAKHAM, 5/128, DESOM ROAD, THOTTAKKATTUKARA, ALUVA.** ## **2. KALYANIKUTTY @ VIMALA REGHUNATH,** - **AGED 57 YEARS, W/O.REGHUNATHAN, PALLIPPATT HOUSE, VISAKHAM, 5/128, DESOM ROAD, THOTTAKKATTUKARA, ALUVA.** **3. SUJATHA REGHUNATH, D/O.REGHUNATHAN, PALLIPPATT HOUSE, VISAKHAM, 5/128, DESOM ROAD, THOTTAKKATTUKARA, ALUVA.** **4. ANITHA REGHUNATH, D/O.REGHUNATHAN, PALLIPPATT HOUSE, VISAKHAM, 5/128 DESOM ROAD, THOTTAKKATTUKARA, ALUVA.** ## **BY ADV. SMT.M.A.VAHEEDA BABU** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------------------------------** **1. JINU PAULOSE, MALIACKAL HOUSE, ANGAMALY P.O., ANGADIKKADAVU.** **2. THE NATIONAL INSURANCE COMPANY LTD., DAMODAR CHAMBERS, STATUE JUNCTION, TRIPUNITHURA.** **R1 BY ADV. SRI.C.A.CHACKO R2 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.2157 of 2008 -----------------------------------------------------------------Dated this the 29[th] day of October, 2013 ## J U D G M E N T ## S. Siri Jagan, J The claimants in O.P(M.V.).No.910/2003 before the Motor Accidents Claims Tribunal, Perumbavoor are the appellants herein. They filed the O.P., claiming compensation for the death of Karunakaran, the son of appellants 1 and 2 and brother of appellants 3 and 4, who died in an accident caused by the negligent driving of a vehicle, owned and driven by the first respondent and insured with the 2[nd] respondent. The tribunal after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: |Sl.<br>No.|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of dependency|1, 82,400| |2|Transportation expenses|2, 000| |3|Damage to clothings|250| |4|Pain and suffering|5, 000| |5|Loss of love and affection|15, 000| |6|Funeral expenses|3, 000| ||Total|2, 07, 650| M.A.C.A. No.2157 of 2008 2 Dissatisfied with the quantum of compensation awarded by the tribunal, the appellants have filed this appeal, seeking enhanced compensation. 2. The first contention raised by the appellants is regarding the monthly income of the deceased. The accident was on 24.02.2003. The appellant was aged 26 years and he was a Software Engineer working in a private firm. According to the appellants as is evident from Exts.A13 to A18, the deceased had a brilliant academic career and he came out with flying colours in his MCA examination. He had 521 marks out of 600 in his SSLC examination. He had very good marks in his Degree examination also. The appellants claimed his income as 6,000/-, which was on a very modest scale₹ and therefore, the tribunal ought to have accepted the same is the first contention raised. It is also pointed out that the appellants had produced Ext.A10 salary certificate issued by the deceased’s employer and the employer was examined as PW2 to prove the same. The 3 M.A.C.A. No.2157 of 2008 2[nd] contention is that, the tribunal adopted the multiplier of 11, taking into account the age of the parents instead of the age of the deceased, which is wrong going by the decision of the Supreme Court in ( **2012 ACJ 2002) Amrit Bhanu Shali and others v. National Insurance Co. Ltd., and others.** , which has been followed by this court in ( **2013 (4) KLT 160) Annamkutty v. United India Insurance Co. Ltd,** . Therefore, going by the age of the deceased, the multiplier applicable is 17 instead of 11. It is further submitted that since there were 4 dependants, the tribunal should have deducted only 1/4[th] for personal expenses of the deceased, whereas, the tribunal has deducted 1/3[rd] for the first two years and half for the balance 9 years. It is further submitted that the compensation awarded for pain and sufferings and love and affection are on the lower side. Lastly it is contended that, no amounts have been awarded for loss of estate, for which a conventional amount should have been awarded. 3. On the other hand, the counsel for the M.A.C.A. No.2157 of 2008 4 insurance company would point out that, going by the decision of the Supreme Court in **New India Assurance Co. Ltd. v. Shanti Pathak and others (2007 ACJ 2188)** , what is relevant for the purpose of the selection of the multiplier is the age of the deceased or the age of the dependants whichever is higher, in which case the multiplier of 11 adopted by the tribunal is perfectly inorder. It is the contention of the insurance company that, the sisters of the deceased cannot be treated as dependants of the deceased, and if, they are excluded, only the parents are the dependants. When the deceased is a bachelor and the parents are the only dependants, going by the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the tribunal ought to have deducted half for personal expenses of the deceased is their contention. They would argue for sustaining the compensation awarded by the tribunal under other heads as well. 4. We have considered the rival contentions M.A.C.A. No.2157 of 2008 5 in detail. 5. The first question to be decided is as to what is the income to be fixed for the deceased for calculating loss of dependency. The appellants had produced the SSLC mark list of the deceased. He had scored 521 marks out of 600. They had also produced the mark lists of Degree and MCA. It is very clear from the same that the deceased was a very brilliant student, who scored consistently high marks in all his examinations. He was employed in Team-e-Biz Ltd., at the time of the accident. Earlier to that, he was working in O.C.A Informatics Ltd. He also had Ext.P12 call letter form Punjab National Bank, New Delhi. The appellants had examined PWs 1 and 2 who are the HRM Executive and the Manager of the firm where the deceased was employed, to prove the income of the deceased and Ext.X1 monthly wages and muster roll maintained by PW2 was marked as well. Of course, in cross examination, PW2 stated that there is no job security for the deceased, M.A.C.A. No.2157 of 2008 6 which would show that the employment is not of a permanent nature. Notwithstanding the same, considering the brilliant academic career of the deceased, taking into account future prospects as well, we are inclined to fix the monthly income of the deceased as ₹ 5,000/-. The decision of the Supreme Court in Shanti Pathak’s case(supra) relied on by the counsel for the insurance company cannot be relied on any more, in view of the decision of the Supreme Court in Amrit Bhanu Shali’s case(supra) and going by that decision, for selection of the multiplier, what is relevant is only the age of the deceased. The deceased was 26 years old at the time of accident. Going by the decision of the Supreme Court in Sarla Verma's case(supra), the multiplier for a 26 year old person is 17. The appellants have not adduced any evidence to prove that appellants 3 and 4 were dependants of the deceased. Therefore, we are not inclined to consider them as dependants. Excluding them, there are only the parents as the dependants and the M.A.C.A. No.2157 of 2008 7 deceased was a bachelor. In such a case 50% ought to have been deducted for personal expenses of the deceased as per Sarla Verma's decision(supra). Calculated thus, the total compensation for loss of dependency due to the parents would be 5,10,000/-₹ (5,000x12x17/2), instead of 1,82,400/- fixed by the₹ tribunal. The difference would be 3,27,600/-. We note₹ that, in the discussion regarding compensation, the tribunal had awarded 20,000/- towards loss of love and₹ affection of the appellants. But in the tabular form provided only, 15,000/- was included and only that₹ amount was finally awarded also under that head. We therefore, fix the compensation for loss of love and affection as 20,000/- itself. For pain and sufferings of₹ the deceased,we fix the compensation as 10,000/-₹ instead of ₹5,000/-. No amount has been awarded towards loss of estate. We fix 10,000/- under this head.₹ Altogether, the appellants would be entitled to additional compensation of 3,47,600/-, over and above what has₹ M.A.C.A. No.2157 of 2008 8 been awarded by the tribunal. This amount would carry interest at the rate of 9% per annum from the date of the claim petition, till date of payment. The 3[rd] respondent insurance company is directed to deposit this amount also within two months. 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