Sukumaran and M. Bargavi v. K. Karuppaiah, Vijayakumar, United India Insurance Co. Ltd., Ajayakumar and Anilkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937** ## **MACA.No. 1035 of 2006 ( )** **-------------------------AGAINST THE AWARD IN OPMV 120/1996 of M.A.C.T., PALAKKAD DATED 00-00-0000** ## **APPELLANTS/PETITIONERS 1 & 2::** **----------------------------------------------------** **1. SUKUMARAN, S/O. VELLAKUTTY, ELAVANPADAM, VANDAZHY, PALAKKAD.** **2. M. BARGHAVI, W/O. SUKUMARAN, ELAVANPADAM, VANDAZHY, PALAKKAD.** **BY ADV. SRI.A.R.GANGADAS** ## **RESPONDENTS/RESPONDENTS/PETITIONERS 3 & 4::** **------------------------------------------------------------------------------------------** **1. K. KARUPPAIAH, S/O. PETHEN, PULAMBAY PERUMALLOOR TALUK, TRICHY, TAMILNADU.** **2. VIJAYAKUMAR, S/O. NATARAJAN, EATHIMA NAGAR, NANJIKOTTAI ROAD, THENJAVOOR.** **3. THE UNITED INDIA INSURANCE CO. LTD., PERIMBALOOR, TRICHY, TAMILNADU.** **4. AJAYAKUMAR, S/O. SUKUMARAN, ELAVAMPADAM, VANDAZHY, PALAKKAD.** **5. ANILKUMAR, S/O. SUKUMARAN, ELAVAMPADAM, VANDAZHY, PALAKKAD.** **R3 BY ADV. SRI.T.J.LAKSHMANAN IYER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.1035 of 2006** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 10[th] day of March, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ Claimants 1 and 2, who are the parents of the deceased Sunilkumar, in O.P.(M.V.)No.120 of 1996 on the file of the Motor Accidents Claims Tribunal, Palakkad are the appellants herein. They filed the application for compensation along with respondents 4 and 5, who are the siblings of the deceased, claiming compensation for the death of their son Sunilkumar who died in a motor vehicle accident occurred on 4.6.1995. According to the claimants, the deceased Sunilkumar was riding the motor cycle with registration No.KL-9/B8046 and when it reached the place of occurrence, the lorry with registration No.TN-45/Y-3745 owned by the first respondent, driven by the second respondent and insured with the third respondent, came from the opposite direction and hit against the motor cycle, resulting in severe injuries to the deceased and he succumbed to the same later. According to them the deceased was a diploma holder in civil engineering and working as an independent contractor and earning Rs.5,000/- per month. He was aged 29 years and a bachelor. They ## **M.A.C.A.No.1035 of 2006** ## **-:2:-** claimed a total compensation of Rs.7,00,000/- under various heads. 2. Respondents 1 and 2 remained absent. The third respondent filed written statement admitting the insurance of the lorry but denied the negligence on the part of the second respondent and alleged negligence against the deceased. They denied the age and occupation of the deceased and dependency of the claimants. According to them, the compensation claimed is exorbitant. They prayed for dismissal of the application. 3. No oral evidence was adduced on either side. Exts.A1 to A8 were marked on the side of the claimants. 4. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the lorry by the second respondent and assessed a total compensation of Rs.80,500/- as follows: |Rs.80,500/- as follows:|| |---|---| |Head|Amount| |Loss of dependency|Rs.60,000/-| |Transportation expenses|Rs.1,000/-| |Love and affection|Rs.10,000/-| |Funeral expenses|Rs.2,000/-| |Loss of estate|Rs.2,500/-| |Pain and suffering|Rs.5,000/-| The tribunal also directed the third respondent insurance company to pay the said amount with 6% interest from the date of petition till payment together with costs Rs.2,000/-. It is further ordered that ## **M.A.C.A.No.1035 of 2006** ## **-:3:-** claimants 3 and 4 are not entitled to get any compensation as they are not dependents and directed the amount to be shared between claimants 1 and 2 alone. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellants/claimants 1 and 2 before the tribunal. 5. Heard Sri.A.R.Gangadas, learned counsel appearing for the appellants and Sri.T.J.Lakshmanan Iyer, learned counsel appearing for the third respondent. 6. Learned counsel appearing for the appellants submitted that the tribunal was not justified in fixing the monthly income of the deceased as Rs.1,500/- per month as he is a qualified person and he is a civil engineer by profession and the tribunal ought to have reasonably took his income as claimed in the petition. Further the tribunal was not justified in taking the age of the dependents, for the purpose of adopting the multiplier, instead the age of the deceased ought to have been taken. The amount awarded under the head pain and suffering, loss of love and affection, funeral expenses, etc. are also on the lower side. So according to him, they are entitled to get enhancement on all heads. 7. On the other hand, learned counsel appearing for the insurance company submitted that considering the fact that the parents are aged and the multiplier should not exceed the life ## **M.A.C.A.No.1035 of 2006** ## **-:4:-** expectancy of the dependents, the tribunal correctly took the multiplier and awarded just and proper compensation. 8. Since the finding regarding negligence has not been disputed, we are not venturing into that aspect in this judgment to avoid repetition on this aspect. 9. The case of the claimants was that the deceased had completed his engineering course and working as a contractor and getting Rs.5,000/- per month. They have not produced any document to prove this fact. However considering the fact that he was aged 29 years and the accident occurred in the year 1995, we feel it appropriate to take the income of the deceased as Rs.2,000/- per month. No future prospects have been taken into consideration for assessing compensation under the head loss of dependency. In the decision reported in **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)], the Supreme Court has held that even in the case of persons having no permanent income, future prospects will have to be reckoned for the purpose of assessing compensation under the head loss of dependency and in the case of persons age group upto 40 years, 50% will have to be added for future prospects. If the income is taken as Rs.2,000/- per month and future prospects is taken, then the monthly income of the deceased will have to be taken as Rs.3,000/- instead of Rs.1,500/fixed by the tribunal. The tribunal had taken the multiplier as 5 taking ## **M.A.C.A.No.1035 of 2006** ## **-:5:-** into consideration the age of the dependents namely the parents who are aged 65 and 61 years respectively. But in the decision reported in **Amrit Bhanu Shali and Others v. National Insurance Company** **Limited and Others** [(2012) 11 SCC 738] the Supreme Court has held that the age of the deceased has to be reckoned for the purpose of adopting the multiplier and this has been confirmed by a three judge bench of the Supreme Court in **Munna Lal Jain and Others v. Vipin Kumar Sharma and Others** [JT 2015 (5) SC 1]. If that be the case, the tribunal was not justified in taking the age of the dependents for the purpose of selecting the multiplier. As per **Sarla Verma and Others v. Delhi Transport Corporation and Another** [(2009) 6 SCC 121] the multiplier applicable to the age group upto 30 years is 17 and 50% will have to be deducted for personal expenses of the deceased as he was a bachelor at the time of his death and parents are the dependents. If a recalculation is made on that basis, the appellants will be entitled to get an amount of Rs.3,06,000/- (Rs.2,000 x 150% = Rs.3,000 x 12 x 17 x 50%) instead of Rs.60,000/- awarded by the tribunal under the head loss of dependency, thereby we award an additional amount of Rs.2,46,000/- under that head. 10. The tribunal had awarded only Rs.10,000/- under the head loss of love and affection for both the parents. They were aged 65 and 61 years respectively. They have lost the bread winner at their old age ## **M.A.C.A.No.1035 of 2006** ## **-:6:-** and lost support for the remaining period of their life. Considering these aspects, we feel that each parent can be awarded the sum of Rs.10,000/- each under the head loss of love and affection, thereby they will be entitled to get an additional amount of Rs.10,000/- under that head. 11. The court below had awarded only Rs.5,000/- under the head pain and suffering taking into account the amount provided under the second schedule. Having considered this as an application under section 166 of the Motor Vehicles Act, the tribunal is not justified in relying on the table provided under the second schedule for awarding compensation under the head pain and suffering and funeral expenses. Considering the fact that he died on the way to the hospital, we feel it proper to award Rs.10,000/- under the head pain and suffering instead of Rs.5,000/- awarded by the tribunal, thereby we award an additional amount of Rs.5,000/- under that head. The tribunal has awarded Rs.2,000/- towards funeral expenses. We feel it proper to enhance the same to Rs.10,000/-, thereby they will be entitled to get an additional amount of Rs.8,000/- under that head. We are not inclined to enhance any amount under the other heads as it is just and proper. 12. In all, the appellants will be entitled to get an additional compensation of Rs.2,69,000/- over and above the compensation awarded by the tribunal which the third respondent insurance company ## **M.A.C.A.No.1035 of 2006** ## **-:7:-** is liable to pay with 9% interest from the date of petition till the date of payment excluding the period of delay as ordered by this court in C.M.Appln.No.1120 of 2006 within three months from today. The amount will be shared equally between the parents. Upon such deposit being made, the appellants are permitted to withdraw the amount. With the above modification of the impugned award, the appeal is allowed in part and disposed of accordingly. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. to Judge **vpv**