Sulfida and others v Saji and others and United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941** ## **MACA.No.3790 OF 2019** **AGAINST THE AWARD IN OP(MV) 498/2016 DATED 14-01-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANTS:** **1 SULFIDA AGED 23 YEARS W/O LATE SIRAJUDHEEN @ SIRAJ,RESIDING AT 396,CHUNKATH,7,ERIKKAMANNA,PONNANI MUNICIPALITY,EZHUVATHIRUTHY,MALAPPURAM DISTRICT. 2 ADHNAN SIRAJ(MINOR), AGED 3¾ YEARS S/O LATE SIRAJUDHEEN @ SIRAJ,RESIDING AT 396,CHUNKATH ,7, ERIKKAMANNA,PONNANI MUNICIPALITY,EZHUVATHIRUTHY,MALAPPURAM DISTRICT. 3 ABOOBACKER, AGED 55 YEARS F/O LATE SIRAJUDHEEN @ SIRAJ, RESIDING AT 396,CHUNKATH ,7, ERIKKAMANNA,PONNANI MUNICIPALITY,EZHUVATHIRUTHY,MALAPPURAM DISTRICT679577.** **4 AMINA, AGED 49 YEARS W/O ABOOBACKER,RESIDING AT 396,CHUNKATH HOUSE, ERIKKAMANNA, MALAPPURAM -679 577** **(MINOR 2ND APPELLANT REPRESENTED BY HIS GUARDIAN MOTHER THE 1ST APPELLANT)** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS:** **SAJI S/O BAVA,RESIDING AT THEKKEPULIYATH HOUSE,NARIPARAMBU** **1** **MACA.No.3790 OF 2019** **2** **P.O, PONNANI,MALAPPURAM DISTRICT PIN-679573. 2 SIDHEEKH, S/O SAITHALI,RESIDING AT 8/656,CHETTTIYATTIL, P.O.PURATHOOR,TIRUR,MALAPPURAM,PIN-676102. 3 UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE-K.M.K.TOWER,VEDAM PALLI, C.V.JUNCTION,PONNANI,MALAPPURAM,PIN-679577. R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD R3 BY ADV. SRI.C.JOSEPH JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3790 OF 2019** **3** ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No.498 of 2016 on the file of the Motor Accidents Claims Tribunal, Tirur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Sirajudheen @ Siraj, in a motor accident which occurred on 22.08.2015, while he was travelling on a motorcycle bearing registration No.KL-54/G-150 as pillion rider. At the place of accident, the motorcycle was hit by an autorickshaw bearing registration No.KL-48/2557, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries, after undergoing inpatient treatment for a period of 9 days, on 30.08.2015. Alleging that the accident occurred due to rash and negligent driving of the offending autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.50,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained **MACA.No.3790 OF 2019** ## **4** absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting the policy coverage of the autorickshaw involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to the rash and negligence riding of motorcycle, on which the deceased was the pillion rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. It was also contended that the claim is bad for non-joinder of necessary parties, since the owner and insurer of the motorcycle, on which the deceased was the pillion rider, were not made parties. 3. Before the Tribunal, Exts.A1 to A12 were marked and PW1 was examined on the side of the appellants/claimants. The respondents have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the 1[st] respondent driver. Since insurance **MACA.No.3790 OF 2019** **5** coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.31,03,622/-, which was rounded to Rs.31,03,700/- and directed the 3[rd] respondent insurer to satisfy the award, together with interest at the rate 7% per annum from the date of petition, till the date of realisation, with proportionate cost. The operative portion of the award reads thus; “The third respondent shall pay a sum of Rs.31,03,700/(Rupees Thirty one Lakh three thousand and seven hundred only) along with interest thereon @ 7% p.a. from the date of petition till the date of realization and also costs within 30 days from the ready date of the copy of the award. Out of the Award amount the third respondent is directed to furnish a cheque for an amount of Rs.49,737/- in favour of M.A.C.T., Tirur towards the court fee payable to the petitioners and in addition to that Rs.50,000/- as 1% addl. Court Fee towards the Legal Benefit Fund. Out of the award amount the 2[nd] petitioner is entitled 40% share and the entire share of 2[nd] petitioner shall be deposited in a nationalized bank as fixed deposit in his name till he attained the age of 21 years. The petitioners 3 and 4, as the parents of the deceased is entitled 15% share each and the 1[st] petitioner as the wife of the deceased is entitled 30% share and **MACA.No.3790 OF 2019** **6** they are permitted to withdraw Rs.1,50,000/- (Rupees One Lakh fifty thousand only) each and the balance amount of their shares shall be deposited in a nationalized bank for a period of 5 years as fixed deposit and permitted to withdraw interest out of their fixed deposit monthly or quarterly. The third respondent is directed to produce separate cheque/DD for the above said payment of court fee, direct payment and fixed deposit within a period of one month from ready date of the copy of the award.” 5. The only challenge made in this appeal is inadequacy of compensation awarded by the Tribunal under the head loss of dependency. Under the said head, the Tribunal awarded an amount of Rs.25,70,400/-, taking the notional monthly income of the deceased as Rs.12,000/-, adding 40% of the notional monthly income towards future prospects, deducting 1/4[th] towards personal expenses and applying the multiplier of 17. 6. After making reference to Ext.A5 passport of the deceased, the learned counsel for the appellants would point out that as on the date of accident, the deceased has not crossed 25 years as he was only 25 years and 11 months. Therefore, the Tribunal ought to have taken the multiplier of 18, instead of 17. **MACA.No.3790 OF 2019** **7** 7. Heard the learned counsel for the appellants and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is not in dispute, service of notice on respondents 1 and 2 is dispensed with. 8. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two **MACA.No.3790 OF 2019** **8** units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 10. In the instant case, as on the date of accident, the appellant has not crossed the age of 25 years, as evident from Ext.A5 passport. Therefore, in the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of **17** applied by the Tribunal is incorrect. The correct and proper multiplier to be applied is **18** . 11. In such circumstances, the compensation under the head loss of dependency is re-fixed as Rs.27,21,600 (16,800 x 12 x 18 x 3/4) resulting an additional compensation of **Rs.1,51,200/-** (27,21,600 - 25,70,400). 12. In the result, the appellants/claimants are entitled **MACA.No.3790 OF 2019** **9** for payment of an additional compensation of **Rs.1,51,200/-** (Rupees One lakh fifty one thousand and two hundred only) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal shall be apportioned among the appellants/claimants in the ratio fixed by the Tribunal in the impugned award. The 3[rd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of the amount to the appellant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/1/11