The National Insurance Co. Ltd. v. Kareem and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 MACA.No. 51 of 2010(B) --------------------OPMV.973/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT : 3[RD] RESPONDENT -------------THE NATIONAL INSURANCE CO.LTD., MADRAS, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS : CLAIMANTS --------------- 1. K.KAREEM, S/O.KADAR KUTTY, RESIDING AT H.NO.27/538, PALLIPURAM ROAD, MERCY COLLEGE JUNCTION, PALAKKAD. 2. BEEPATHUMMA, W/O.KAREEM, RESIDING AT H.NO.27/538, PALLIPURAM ROAD, MERCY COLLEGE JUNCTION, PALAKKAD. 3. SALEENA, D/O.KAREEM, RESIDING AT H.NO.27/538, PALLIPURAM ROAD, MERCY COLLEGE JUNCTION, PALAKKAD. 4. NISA, D/O.KAREEM, RESIDING AT H.NO.27/538, PALLIPURAM ROAD, MERCY COLLEGE JUNCTION, PALAKKAD. MACA.No. 51 of 2010(B) - 2 - 5. NOUSHAD, S/O.KAREEM, RESIDING AT H.NO.27/538, PALLIPURAM ROAD, MERCY COLLEGE JUNCTION, PALAKKAD. ADV. SRI.JACOB SEBASTIAN FOR R1 TO 5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.51 of 2010-B ******************************* Dated this the 11[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. Insurer is the appellant. The insurer assails the quantum of compensation awarded by the Tribunal to the claimants/respondents herein. 2. The claimants are the parents, aged 46 and 38 years as also adult siblings of a deceased person, who was aged 24 years on the date of his death. He succumbed to the personal injuries suffered by him in a motor accident which took place on 04.04.2005. Against a total claim of Rs.4,70,000/-, the Tribunal awarded an amount of Rs.3,60,100/- as per the details shown below: i) Loss of dependency : Rs.3,45,600.00 (2700 X 2/3 X 12 X 16) ii) Funeral expenses : Rs. 2,000.00 iii) Loss of estate : Rs. 2,500.00 iv) Loss of love and affection : Rs. 10,000.00 ---------------------Total : Rs.3,60,100.00 ========== 2 **M.A.C.A No.51 of 2010-B** 3. The learned counsel for the insurance company assails the quantum of compensation awarded under two specific heads. First of all it is contended that the deceased being a bachelor, contribution to his parents could have been reckoned only at one half of his monthly income. The Tribunal had incorrectly held that 2/3 of the monthly income can be reckoned as the multiplicand. That conclusion about contribution is incorrect going by the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], points out counsel. 4. The learned counsel for the appellant insurance company then contends that even if the age of the younger of the two parents were taken into account, multiplier could not have exceeded 15 as per the dictum in **Sarla Verma** (supra). The Tribunal has wrongly reckoned 16 as the multiplier, points out the learned counsel. On both these aspects we find the contention to be absolutely justified. 5. The learned counsel for the respondents/claimants contends that at any rate the impugned award does not warrant interference. The deceased was a young man, aged 24 years. He was a cloth merchant. Though better evidence could not be placed before the Tribunal to show such **M.A.C.A No.51 of 2010-B** 3 employment/engagement of his, the inquest report Ext.A2 prepared by the police clearly shows that he was engaged/employed as a cloth merchant. He is thus shown to be a business man. Reasonable inference about his monthly income ought to have been drawn by the Tribunal. The assumption made by the Tribunal that the monthly income of the deceased is only Rs.2,700/- is grossly erroneous and borders on perversity, contends the learned counsel. If a reasonable amount is reckoned as the monthly income of the deceased, the total amount awarded under the impugned award can be found to be absolutely justifiable. No interference is hence warranted, contends the learned counsel. The learned counsel for the respondents/claimants then contends that there has been a crucial omission to award any amount under the head of pain and suffering. The counsel further points out that the amounts awarded under the head of funeral expenses and loss of estate are also grossly insufficient. 6. Sum and substance of the contention of the learned counsel for the respondents/claimants is that if the amounts are computed again by this Court, it can be seen that the total amount awarded does not warrant appellate interference under 4 **M.A.C.A No.51 of 2010-B** Section 173 of the Motor Vehicles Act. 7. It is trite that a respondent supporting the impugned award can support on the same on other grounds and show to the Court that the final direction issued in the impugned award does not warrant interference. 8. We are therefore persuaded to compute the quantum of compensation, which would be payable afresh. We take note of the fact that the deceased was a young man, aged 24 years. Available indications suggest that he was a business man. Reasonable inference can safely be drawn. Clause 6 of the Second Schedule to the M.V Act permits a presumption of prudence as early as in 1994 that even a non earning person can be assumed to earn an income of Rs.1,250/- per mensem. The Schedule has not been updated even though a period exceeding 17 years has elapsed from the date on which the schedule was enacted. The learned counsel for the appellant further relies on the decision in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] , which decision was rendered in 2001 and which declares that even in respect of a non earning house wife/home maker, it would be reasonable to assume that the monetary equivalent of their services is Rs.3,000/-. The death was instantaneous and ## **M.A.C.A No.51 of 2010-B** 5 the parents, aged 46 and 38 years have been deprived of the love, affection and protection which the deceased would have afforded. Though specific bills and vouchers have not been produced, it is reasonable to assume that expenses must have been incurred for funeral and transportation. 9. We do, in these circumstances, come to the conclusion that the quantum of compensation payable to the claimants can be fixed as follows: i) Pain and suffering : Rs. 10,000.00 ii) Loss of love and affection : Rs. 10,000.00 iii) Funeral and transport expenses : Rs. 7,500.00 iv) Loss of estate : Rs. 5,000.00 v) Loss of dependency : Rs.3,15,000.00 (3500 X 12 X ½ X 15) ---------------------Total : Rs.3,47,500.00 ========= The challenge against the impugned award can succeed only to the above extent. ## 10. In the result: - a) This appeal is allowed in part; - b) In supersession of the direction in the impugned 6 ## **M.A.C.A No.51 of 2010-B** award, the appellant is directed to pay to the claimants/respondents an amount of Rs.3,47,500/- (Rupees Three lakhs forty seven thousand and five hundred only) as compensation along with interest @ 7.5% from the date of the claim to the date of payment/realisation; c) All other directions of Tribunal including the direction for payment of court fee and cost are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/