United India Insurance Company Limited v. Pechimuthu and Jagadambal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **& THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931** **MACA.No. 472 of 2008()** **---------------------OPMV.206/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** **....................** ## **APPELLANT: 3RD RESPONDENT** **---------------------------------------** **UNITED INDIA INSURANCE COMPANY LIMITED, POLLACHI NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI - 11.** **BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW** ## **RESPONDENT(S): PETITIONERS** **--------------------------** **1. PECHIMUTHU, S/O.VELAYUDHASWAMY KOUNDER, UDHAVAKKADU, PALLATHERY P.O., PALAKKAD.** ## **2. JAGADAMBAL, W/O.PECHIMUTHU, DO. DO.** **ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 & 2 SRI.T.C.SURESH MENON FOR R1 & 2 SRI.JIBU P THOMAS FOR R1 & 2 SRI.P.S.APPU FOR R1 & 2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.472 of 2008** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of February, 2010 ## **JUDGMENT** ## Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent , Insurance Company, in O.P.(MV)No.206/2002 of Motor Accidents Claims Tribunal, Palakkad challenges the quantum of compensation awarded by the Tribunal to the claimants who are the parents and dependents of the deceased Senthilkumar for the loss caused to them on account of the death of Senthilkumar in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Senthilkumar was aged 23 at the time of accident. He was unmarried and used to earn Rs. 3,000/- per month as an autorickshaw driver, according to the claimants. On June 30, 2001 the deceased was riding his moped TVS 50 bearing Reg.No.TA 41.C/5660 along the Para-Pallathery road. At that time, a lorry bearing Reg.No.TN-28/1499 came at a high speed and dashed against the MACA.No.472/08 Page numbers moped of the deceased. Senthilkumar sustained serious injuries and died on the spot. According to the claimants, the accident occurred due to the rash and negligent driving of the offending lorry by second respondent. The first respondent as the owner, second respondent as the driver and the third respondent as the insurer of the offending lorry are liable to pay compensation to the claimants who are the parents and dependents of the deceased. Claimants claimed a compensation of Rs.5,76,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending lorry remained absent and were set ex parte before the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement admitting the policy. 4. PW1 and PW2 were examined and Exts.A1 to A5 were marked for the claimants. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 3,15,000/-. The Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.472/08 Page numbers 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent is not challenged in this appeal. Therefore, the only question for consideration is whether the compensation awarded by the Tribunal is excessive. 6. Heard Sri.Mathews Jacob, the learned senior counesl for the appellant and Sri.V.Chitambaresh, learned senior counsel for respondents 1 and 2, the claimants. 7. Sri.Mathews Jacob, the learned senior counsel appearing for the appellant Insurance Company argued that in assessing the loss of dependency, the Tribunal adopted a multiplier of 17 which is not correct, that as the claimants are aged 57 and 49 at the time of the accident, the proper multiplier should have been 11. There is force in the above contention. The claimants contended that the deceased as an auto driver used to earn Rs.3000/- per month. But in the claim petition, the avocation of the deceased is shown as vegetable vendor. Taking into consideration of the above fact, the Tribunal took his monthly income as Rs. 2,000/-. As the deceased was aged 23, the Tribunal took MACA.No.472/08 Page numbers a multiplier of 17 and awarded a compensation of Rs. 3,06,000/- for loss of dependency. 8. But the choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is higher as held by the Apex Court in **New Indian Assurance Co.Ltd. v. Charlie** ( 2005(3) KLT 227 Supreme Court). In the present case, the parents of the deceased are the claimants. They are aged 57 and 49 years at the time of accident. The multiplier shown in Second Schedule to the Motor Vehicles Act for the age group of 55 to 60 is 8 and that of 45 to 50 is 13. As the deceased was their only son and as second claimant, mother, is aged only 49, we feel that a multiplier of 13 would be reasonable in this case. 9. There is another aspect. The Tribunal assessed the monthly income of the deceased as Rs. 2000/- only. PW2 has supported the version of PW1 that the deceased was an auto driver which appears to be true. That being so, the monthly income of the deceased can be reasonably fixed at Rs. 3,000/-. Out of this 50% has to be deducted towards personal expenses as the deceased is a bachelor as held by the MACA.No.472/08 Page numbers Apex Court in **Sarala Varma V.Delhi Transport Corporation and another** ( 2009(6)SCC 121). Thus his monthly contribution to the claimants can be taken as Rs. 1500/-. Thus calculated, the claimants are entitled to Rs. 2,34,000/- for loss of dependency ( 1500 x 12 x 13). 10. The counsel appearing for claimants pointed out that the Tribunal awarded only Rs. 9,500/- for loss of love and affection etc. as provided under the Second Schedule to the Act. But the Second Schedule is applicable only if the compensation is claimed under Section 163A. But in this case, the claimants have claimed compensation under Section 166 of the Act. That being so, the claimants are entitled to compensation for loss of love and affection, loss to the estate, for the pain and suffering endured by the deceased , hospital expenses, funeral expenses etc. 11. Therefore, in the present case, taking into consideration the fact that the deceased is the only son of claimants, a compensation of Rs. 20,000/- for loss of love and affection would be reasonable. For the pain and suffering endured by the deceased, we feel that a compensation of Rs. 10,000/- would be adequate. For loss to the MACA.No.472/08 Page numbers estate, in our view a compensation of Rs. 10,000/- would be just and proper. Towards Funeral expenses and expenses in the hospital, a compensation of Rs. 5000/- would be adequate. 12. Thus the claimants are found entitled to a compensation of Rs. 2,79,000/-. The impugned award of the Tribunal is modified to that effect. They are entitled to interest at the rate of 9% per annum from the date of petition till realisation and cost. The appellant shall deposit the amount before the Tribunal within one month from this date. As the claimants are aged persons, the entire compensation awarded shall be disbursed to them. The Appeal is disposed of as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.472/08 Page numbers