Sukumaran P A v. Maheshkumar P.S. Manimandiram and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 17TH DAY OF JULY 2017 / 26TH ASHADHA, 1939** **MACA.No. 2536 of 2012** **-----------------------AGAINST THE AWARD IN OPMV 330/2010 of M.A.C.T., KOTTAYAM -----------------** ## **APPELLANT(S)/PETITIONERS :-** **-----------------------------** **1. SUKUMARAN P A, KANICHERIL HOUSE, ARPOOKKARA POST, KOTTAYAM.** *** 2. PRASANNAKUMAR (CORRECTED) KANICHERIL HOUSE, ARPOOKKARA EAST POST, KOTTAYAM.** **3. JASMINE SUKUMARAN, KANICHERIL HOUSE, ARPOOKKARA EAST POST, KOTTAYAM.** **4. CHITHRA SUKUMARAN, KANCIHERIL HOUSE, ARPOOKKARA EAST POST, KOTTAYAM.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT(S)/RESPONDENTS :-** **-----------------------------** **1. MAHESHKUMAR P.S. MANIMANDIRAM, ERAVIMANGALAM POST, VAIKKOM - 686 141.** **2. ROY MATHEW, THEKKEVEETTIL, MEMURY POST, MANJOOR - 686 617.** **3. THE NATIONAL INSURANCE CO.LTD., KOTTAYAM – 686 001. BY ADV. SMT.SARAH SALVY BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** *** THE NAME OF THE 2[ND] APPELLANT IS CORRECTED AS “PRASANNAKUMARI” INSTEAD OF PRASANNAKUMAR VIDE ORDER DATED 31.1.2019 IN I.A.1/2018.** ## **C.T.RAVIKUMAR, J. & ANIL K. NARENDRAN, J.** **--------------------------------------M.A.C.A. No.2536 of 2012 ---------------------------------------Dated this the 17[th] day of July 2017** ## **J U D G M E N T** ## **C.T.Ravikumar, J.** The appellants are the legal heirs of the victim of a motor vehicle accident that occurred on 25.12.2009 involving collision of an autorickshaw and a bus. The deceased was a passenger in the autorickshaw bearing registration No.KL05/R.9273 and it was hit by the bus bearing registration No.KL-5L.8584 driven by the 1[st] respondent. The deceased, Kiran, was aged 25 years at the time of the accident. In the claim petition, it is averred that he was an autorickshaw driver by profession and was earning .12,000/- per month.₹ The appellants/claimants are the parents and sisters of the deceased. They claimed a total compensation of .7,00,000/-₹ and the Tribunal awarded a total compensation of .4,03,000/-₹ with interest at the rate of 7.5% per annum from the date of petition till realisation, as per the impugned award. It is seeking enhancement of quantum of compensation awarded by the Tribunal that the captioned appeal has been preferred. M.A.C.A. No.2536 of 2012 -: 2 :- 2. Heard. 3. The main grievance of the appellants is that the Tribunal had erroneously estimated the monthly income of the deceased and it resulted in denial of due compensation. The further contention is that the Tribunal adopted the multiplier virtually based on a misconception of the dictum laid down by the Hon'ble Apex Court in **Sarla Verma** v. **Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. The multiplier adopted by the Tribunal was with reference to the average age of the parents instead of taking the age of the deceased at the time of the accidental death. The further grievance of the appellants is regarding the fixation of compensation for 'loss of love and affection' and the amount granted towards 'funeral expenses'. The appellants have also grievance against fixation of compensation for 'pain and sufferings' and also for 'loss of estate'. 4. Per contra, learned counsel appearing for the 3[rd] respondent - Insurer contended that the appellants got no reason for raising grievance against fixation of monthly income notionally as they had failed to adduce any evidence M.A.C.A. No.2536 of 2012 -: 3 :- before the Tribunal to establish their averments in the claim petition regarding occupation and income of the deceased. Shortly stated, according to the learned counsel for the 3[rd] respondent, what was granted as compensation by the Tribunal is just compensation. 5. We, firstly consider the question, whether the Tribunal had fixed monthly income notionally so unreasonably and if so, what should be the rate of monthly income to be fixed. In the claim petition, it was averred that the deceased was an autorickshaw driver and he was earning 12,000/- per₹ month. In order to establish the said averment, no evidence was adduced by the appellants before the Tribunal. In such circumstances, it cannot be said that the Tribunal is erred in fixing the monthly income notionally. Then the question is whether the fixation of 5,000/- as monthly income requires₹ interference. Certain factors are to be looked into for the purpose of considering the said question. 6. The accident occurred on 25.12.2009 and at the time of the accident, the deceased was aged 25 years. In such circumstances, according to us, the decision of the Apex M.A.C.A. No.2536 of 2012 -: 4 :- Court in **Ramachandrappa** v. **The Manager, Royal Sundaram Aliance Insurance Company Limited** [AIR 2011 SC 2951] can be taken for guidance in the matter of fixation of monthly income. That was a case where, in respect of a coolie, who suffered an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income for calculation purpose as 4,500/-. The accident in question₹ occurred at the fag end of the year 2009. In such circumstances, we have no hesitation to hold that an amount of 7,000/- can be reasonably fixed as the monthly income of₹ the deceased for calculation purposes. Accordingly, it is fixed. As noticed hereinbefore, the deceased was aged only 25 years. In such circumstances, it can only be presumed that but for the untimely death he would have had better prospects to life. Since the appellants have not adduced any evidence to establish the employment of the deceased, we are of the view that it would not be just and proper for us to make an addition of 50%, merely by taking into account the age of the appellants at the time of the accident. At the same time, we are of the view that factors including cost of living and M.A.C.A. No.2536 of 2012 -: 5 :- price index, which would certainly have a reflection in the case of persons eking their livelihood by indulging in manual works as well. Certainly by lapse of time, such persons would also be constrained to seek enhanced rate of wages for their service. Hence, taking into account the age of the deceased, we are of the view that it would be just and proper to make an addition of 30% to the income fixed. Consequently, the monthly income to be taken for calculation purposes would be 9,100/-. The Tribunal has adopted the₹ multiplier with reference to the average age of the parents of the deceased. This certainly is a deviation from the dictum laid down by the Apex Court in the decision in **Sarla Verma's** **case** (supra). In the said case, the Apex Court unambiguously held that multiplier has to be adopted with reference to the age of the deceased. This position has been virtually reiterated by the Apex Court in **Munnalal Jain** v. **Vipin Kumar Sharma** [(2015) 6 SCC 347]. In the said circumstances, the Tribunal ought to have taken the multiplier with reference to the age of the deceased. Since the appellants had not adduced evidence as to whether the M.A.C.A. No.2536 of 2012 -: 6 :- deceased had crossed the age of 25 years, we are of the view that the multiplier to be applied is one applicable for the age group of 26 – 30 years, viz., 17. Since the deceased was a bachelor, the Tribunal has rightly deducted 50% of his income towards personal and living expenses. Taking into account the aforesaid factors, the compensation for 'loss of dependency' has to be reassessed. On such reassessment, the amount payable under the said head would be 9,28,200/-₹ (9,100 x 12 x 17/2). The Tribunal has already granted an amount of 3,30,000/- under the said head. Hence, the₹ appellants are entitled to get an additional compensation of **₹5,98,200/-.** 7. On going through the impugned award, we are of the view that the appellants are entitled to get enhanced compensation only under the two other heads, namely; 'funeral expenses' and 'loss of love and affection'. Since the accident in question occurred in the year 2009, we are of the view that the appellants are entitled to get the benefit of the decision of the Apex Court in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89] and hence, they are entitled to get an amount of M.A.C.A. No.2536 of 2012 -: 7 :- ₹25,000/- towards funeral expenses. After deducting the amount granted by the Tribunal, they are entitled to get an additional amount of ₹ **20,000/-** under that head. Towards 'loss of love and affection', taking note of the fact that the applicants are aged parents and sisters of the deceased, we are of the view that it is only proper to grant an amount of 15,000/- each to them. The Tribunal has already awarded₹ ₹40,000/- under that head. Hence, they are entitled to get an additional amount of ₹ **20,000/-** under that head. In such circumstances, the appellants are entitled to get a total enhanced compensation of ₹ **6,38,200/-.** It is awarded. 8. Since there is no dispute regarding liability of 3[rd] respondent to indemnify the insured, owner of the vehicle, the 3[rd] respondent has to deposit the said amount to satisfy the award for indemnifying the liability of the insured. In such circumstances, there will be a direction to the 3[rd] respondent to deposit the additional compensation along with interest at the rate of 8% per annum from the date of the petition till realisation, within a period of two months from the date of receipt of a copy of this judgment. The enhanced M.A.C.A. No.2536 of 2012 -: 8 :- amount along with interest shall be apportioned between the appellants in the ratio of 20 : 40 : 20 : 20 respectively. There will be no order as to costs. The appeal is disposed of as above. **Sd/C.T.RAVIKUMAR JUDGE** **Sd/ANIL K. NARENDRAN JUDGE** Jvt/19.7.2017