Smt. Bhavani and others v. Shaju K.V. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **MACA.No.1396 OF 2009** **AGAINST THE AWARD IN OPMV 2207/2005 DATED 31-01-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONER:** |**1**|**SMT.BHAVANI, W/O.LATE NARAYANAN, AGED 65,**| |---|---| ||**NAMBANATH HOUSE, PERINGOTTUKARA,, THANNIAM, THRISSUR**| ||**DISTRICT.**| |**2***|**JAYAN AGED 42 SO.LATE NARAYANAN**| ||**AGED 40 YEARS**| ||**-DO- -DO- ( DIED)**| |**3**|**VANAJA AGED 42 DO.LATE NARAYANAN**| ||**-DO- -DO-**| |**4**|**CHANDRAN AGED 40 SO.LATE NARAYANAN**| ||**-DO- -DO-**| |**5**|**RADHAKRISHNAN AGED 38**| ||**S/O.LATE NARAYANAN,, -DO- -DO-**| |**6**|**LINI AGED 36 DO.LATE NARAYANAN**| ||**-DO- -DO-**| |**7**|**LATHA AGED 34 DO.LATE NARAYANAN**| ||**-DO- -DO-**| |**8**|**MINI AGED 32 DO.LATE NARAYANAN**| ||**-DO- -DO-**| |**9**|**KARUNAN AGED 30 YEARS**| ||**AGED 47 YEARS**| ||**S/O.LATE NARAYANAN, NAMBANATH HOUSE,, PERINGOTTUKARA,**| ||**THRISSUR DISTRICT.**| ||***ADDL. APPELLANTS 10 AND 11 IMPLEADED**| |**10**|**ADDL. 10 GIRIJABAI, W/O. LATE JAYAN,**| ||**AGED 45 YEARS**| ||**NAMBIATH HOUSE, KIZHUPPILLIKKARA, THRISSUR DISTRICT -**| ||**680 702.**| **MACA.No.1396 OF 2009** **2** **11 ADDL. 11 JITH N.J, AGED 45 YEARS S/O. LATE JAYAN, NAMBIATH HOUSE, KIZHUPILLIKKARA, THRISSUR DISTRICT - 680 702.** ***THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.2 ARE IMPLEADED AS ADDL. APPELLANTS 10 AND 11 AS PER ORDER DATED 7/4/2021 IN I.A.NO. 1/2021 IN THE MACA.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 SHAIJU.K.V., S/O.VELAYUDHAN, KOKKANTHARA HOUSE, ANTHIKKAD P.O.,, THRISSUR DISTRICT.** - **2 K.L.PAUL SO.LONAPPAN KURUTHUKULANGARA HOUSE, ANTHIKKAD P.O.,, THRISSUR DISTRICT.** - **3 NEW INDIA ASSURANCE CO.LTD. ANUGRAHA BUILDING, WADAKKANCHERY ROAD,, KUNNAMKULAM, THRISSUR.** ## **OTHER PRESENT:** **SR.ADV.SRI.MATHEWS JACOB AND SRI.P.JACOB MATHEW FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-04-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1396 OF 2009** **3** ## **P.V.KUNHIKRISHNAN, J** -------------------------------M.A.C.A.No. 1396 of 2009 ------------------------------Dated this the 9[th] day of April, 2021 ## **JUDGMENT** This appeal is filed against the award dated 31.1.2009 in O.P.(M.V.) No. 2207/2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. The legal heirs of one Santhosh, who died in a motor vehicle accident, filed the above claim petition under Sec. 163 A of the Motor Vehicles Act. The second appellant died pending the appeal and his legal heirs were already impleaded as additional appellants. The first appellant also died and a memo is filed by the counsel to record the death of first appellant and also record her legal heirs as appellants No.2 to 9. The memo is recorded. (Hereinafter, the parties are mentioned in accordance to their **MACA.No.1396 OF 2009** **4** rank before the Tribunal). 2. The short facts are like this: On 12.8.2005, at 8 a.m., the deceased Santhosh was walking through the public road and when he reached at Thanniam, a lorry bearing registration No. KL7/AH 3952 came from the opposite direction in a very rash and negligent manner and hit him down and due to the impact of hit he sustained severe injuries and he succumbed to the injuries. 3. To substantiate the case, Exts.A1 to A6 were marked on the side of the petitioners. After going through the evidence and documents, the Tribunal passed an award of Rs.1,04,500/- taking a multiplier of 5. Aggrieved by the same, this appeal is filed. 4. Heard the counsel for the appellants/petitioners and the Senior counsel Sri. Mathews Jacob for the third respondent. 5. The short point raised by the counsel for the petitioners is that the Tribunal fixed the multiplier of 5 **MACA.No.1396 OF 2009** **5** instead of 17. The counsel submitted that the Tribunal applied the multiplier based on the age of the first petitioner. The counsel submitted that in the light of the decision of the Apex Court in **Munna Lal Jain and another v. Vipin Kumar Sharma and others (2015 ACJ 1985),** it is settled that the multiplier is to be taken based on the age of the deceased. 6. I think there is some force in the argument of the counsel for the petitioners. In the above decision, the Apex Court considered this point in paragraph 12 to 14. “12. The remaining question is only on multiplier. The High Court following Santhosh Devi, 2012 ACJ 1428 (SC), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependents or that of the deceased, has been hanging fire for some time; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari, 2013 ACJ 1253 (SC). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote “(33)... In Sarla Verma, this court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the **MACA.No.1396 OF 2009** **6** deceased (b) income of the deceased and (c) the number of dependants. To arrive at the loss of dependency, Claims Tribunal must consider (i) additions/deductions to be made for arriving at the income (ii) the deductions to be made towards the personal and living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma (supra). ## 13. In Sarla Verma, 2009 ACJ 1298 (SC), at para 9, a two- judge Bench dealt with this aspect in Step.2. to quote: **==> picture [269 x 39] intentionally omitted <==** Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a Table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said Table with reference to the age of the deceased.” 14. The multiplier, in the case of the age of the deceased between 26 and 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000/- by the High Court.” ## 7. In the light of the above decision, the multiplier applicable in this case is 17. The Tribunal fixed the monthly income of the deceased as Rs.2,500/-. The claim of the petitioners is that the deceased was getting Rs.3,000/-. **MACA.No.1396 OF 2009** **7** According to him, he was a coolie. The accident occurred in the year 2005. In the light of the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., (2011 (13) SCC 236),** the monthly income of a collie can be safely taken as Rs.4,500/-. Therefore, the monthly income of the petitioner can be safely fixed as Rs.3,000/- in this case. If that is taken as the income, as per Schedule II of the Motor Vehicles Act, the compensation payable to the age group of 25 but not exceeding 30 years is Rs.6,12,000/-. From the above amount, 1/3rd is to be deducted. Then the balance amount will be Rs.4,08,000/-. (Rs. 6,12,000x2/3). The petitioners are entitled an amount of Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. Therefore, the compensation payable to the petitioners under Section 163-A of the Motor Vehicles Act can be summarised like this: **MACA.No.1396 OF 2009** **8** |1.|Loss of dependency|-|Rs.4,08,000/-| |---|---|---|---| |2.|Funeral expenses|-|Rs. 2,000/-| |3.|Loss of estate|-|Rs.2,500/-| ||||----------------| |Total||-|Rs.4,12,500/-| ||||========| The petitioners are entitled interest at the rate of 8% p.a from the date of application till realisation. In the result, the appeal is allowed and the impugned award is set aside. The appellants/petitioners are entitled a total compensation of Rs.4,12,500/-(Rupees Four lakh Twelve Thousand Five hundred only) with interest at the rate of 8% p.a from the date of application till realisation. The third respondent is directed to pay the compensation with interest to the appellants. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** al/-+