Suseela and Arun v. Divisional Manager, New India Assurance Co., Kollam-691001

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939 MACA.No. 2533 of 2014 () ------------------------AGAINST THE AWARD IN OPMV 609/2010 of M.A.C.T.,KOLLAM DATED APPELLANT(S)/PETITIONERS: ------------------------ 1. SUSEELA, W/O.LATE MADHAVAN PILLAI, AGED 53 YEARS, THADATHARIKATHU VEEDU, THACHONAM,KADAKKAL, NOW RESIDING AT ANU BHAVAN (CHARUVILA VEEDU), ETTIMOODU,VATTATHAMARA.P.O, KOLLAM. 2. ARUN, S/O.LATE MADHAVAN PILLAI, AGED 26 YEARS, THADATHARIKATHU VEEDU, THACHONAM,KADAKKAL,NOW RESIDING AT ANU BHAVAN (CHARUVILA VEEDU),ETTIMOODU,VATTATHAMARA.P.O,KOLLAM. BY ADVS.SRI. SIJU KAMALASANAN SMT.BINDU GEORGE RESPONDENT(S)/3RD RESPONDENT: ---------------------------------------- DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.,KOLLAM-691001. BY ADV. SMT.P.K.SANTHAMMA BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.2533 OF 2014** **==========================** Dated this the 14[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ The mother and brother of the victim of a motor vehicle accident, who were the petitioners in O.P.(MV).No.609 of 2010 on the files of the Motor Accidents Claims Tribunal, Kollam, preferred this appeal seeking enhancement of the quantum of compensation awarded thereon. The Tribunal awarded a total compensation of Rs.3,70,000/- against a claim of Rs.8,00,000/- with interest at the rate of 7.5% per annum from the date of the petition till realisation. ## 2. Heard. 3. The main grievance of the appellants is that the Tribunal failed to make an addition to the notionally fixed income of the deceased while calculating compensation for loss of dependency, **M.A.C.A.2533/2014** 2 reckoning future prospects. The contention is that the Tribunal went wrong in adopting the multiplier inasmuch as instead of adopting the multiplier with reference to the age of the deceased, it was adopted with reference to the age of the first appellant, mother of the deceased, at the time of the accident. The compensation awarded under the heads loss of love and affection, pain and suffering and funeral expenses are on a lower side, it is further contended. 4. The deceased was a conductor aged 21 years. The Tribunal adopted the multiplier with reference to the age of the mother of the deceased at the time of the accident. This is a patent error as it was fixed in total deviation from the dictum laid down by the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** and **Munna Lal Jain v. Vipin Kumar Sharma** reported in **(2015) 6 SCC 347.** In the light of the aforesaid decisions, in a claim for compensation for death filed under section 166 of the Motor Vehicles Act, the multiplier has to be identified with reference to the age of the deceased. In view of the fact that the deceased was aged only 21 years at the time of the accident, the **M.A.C.A.2533/2014** 3 multiplier applicable was '18'. Admittedly, the Tribunal accepted the monthly income of the deceased as Rs.5,000/-, as claimed by the appellants. The grievance of the appellants is that the Tribunal did not make any addition to the monthly income reckoning future prospects. The evidence on record would reveal that the deceased was possessing conductor's license and the Tribunal accepted the case of the appellants that the deceased was a conductor in a private bus. In fact, the very accident in question had occurred while he was functioning as conductor in the offending bus. In the light of the decision of the Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** 50% was to be added reckoning the future prospects to the monthly income fixed for calculation purpose, in the circumstances. Hence, the monthly income ought to have been taken as Rs.7,500/- and the multiplier ought to have been taken as '18'. The Tribunal has rightly deducted 50% of the income since the deceased was a bachelor. In such circumstances, a re-assessment of compensation for loss of dependency has to be made by substituting the re-fixed monthly income and multiplier. On such reassessment, **M.A.C.A.2533/2014** 4 the amount payable under the said head will be Rs.8,10,000/(7500x12x18x1/2). The Tribunal has already awarded an amount of Rs.3,30,000/- under this head. After deducting the said amount, the appellants will be entitled to an additional sum of Rs.4,80,000/-. In addition to the same, the appellants are entitled to Rs.15,000/- more towards funeral expenses in view of the judgment in **Rajesh** 's case (supra) since the Tribunal has granted only Rs.10,000/- under that head. Towards loss of love and affection, the Tribunal granted only an amount of Rs.5,000/-. Taking note of the fact that the claimants are the mother and brother of the deceased, we are of the view that they ought to have been granted Rs.25,000/- each under the said head. In such circumstances, after deducting an amount of Rs.5,000/-, they are entitled to get Rs.45,000/- additionally. The accident occurred on 10.7.2009 and Anu died on 12.7.2009 while undergoing treatment. Hence, we are inclined to grant Rs.5,000/- more towards pain and suffering. Despite the persuasive arguments of the learned counsel for the appellant, we do not find any reason to interfere with the assessment of compensation made under other heads. In such **M.A.C.A.2533/2014** 5 circumstances, the appellants are entitled to get an additional compensation of Rs.5,45,000/-. It is granted. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. Though the Tribunal found that the third respondent insurer was liable to indemnify the insured owner of the vehicle, no appeal has been preferred by the third respondent challenging the same. So also, no cross objection was taken up in this appeal. Therefore, the respondent is directed to deposit the aforesaid amount along with interest thereon within a period of three months from the date of receipt of a copy of this judgment. Appeal is disposed of. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** # **M.A.C.A.2533/2014** 6 # **M.A.C.A.2533/2014** 7