United India Insurance Company Ltd. v. Mohammed Ali 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** **FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933** **MACA.No. 1001 of 2006** **----------------------OPMV.1941/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** **....................** ## **APPELLANT/ APPELLANT/3RD RESPONDENTS** **---------------------------------------** **UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW** ## **RESPONDENTS: PETITIONERS** **--------------------------** **1. MOHAMMED ALI, S/O.UMBACHI, PULIYATH HOUSE, CHOWALLUR.P.O, KANDASSERI, THRISSUR.** **2. RUKKIYA, W/O.MOHAMMED ALI, PULIYATH HOUSE, CHOWALLUR.P.O, KANDASSERI, THRISSUR.** **3. P.RAMULU,S/O.MALLAIAH, C/O.GANESH LORRY TRANSPORT, JPN ROAD, H.NO.12-1-243, BONDALAKONTA PODIAMMA MAIDAN, WARRANGAL, ANDHRA PRADESH.** ## **4. B.KISHAN NAIK, S/O.B.BAKKEN,** - **2.5.534/L, GHADHI CHOWK, KAMMAM DISTRICT, ANDHRA PRADESH.** **ADV. SRI.P.V.CHANDRA MOHAN FOR R.1,2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, ALONG WITH M.A.C.A. NO.1352/2005, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING:** ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. Nos.1352 of 2005 & 1001 of 2006 ============================** ## **Dated this the 12[th] day of August 2011** ## **COMMON JUDGMENT** ## **R.Basant, J.** These appeals are directed against the same award. Claim was staked by the claimants for loss suffered by them as a result of the death of their son. He was aged 22 years. He was running agency business of the Kerala Roadways at Hyderabad. The accident took place at Hyderabad on 25/2/2000. The son of the claimants succumbed to the injuries suffered by him. The claim was staked for a total amount of Rs.30,66,000/-. The Tribunal by the impugned award came to the conclusion that the claimants are entitled to a total amount of Rs.3,65,000/- as per the details given below: MACA 1352 \/05 & 1001/2006 2 |1)Dependency for first 5 years<br>(5000x12x2/3x5)<br>2)Dependency for next 6 years<br>(5000x12x1/3x6)<br>3) Transport<br>4)Funeral<br> <br>5)Pain and suffering<br> <br>6)Loss of love and affection<br>7) Loss of estate<br>Total|:Rs.2,00,000/-<br>:Rs.1,20,000/-<br>:Rs. 10,000/-<br>:Rs. 5,000/-<br>: Rs. 10,000/-<br>: Rs. 10,000/-<br>: Rs. 10,000/-| |---|---| ||<br>Rs.3,65,000/-<br>========| Interest was awarded at the rate of 6% per annum. 2. The claimants as well as the Insurance company have both come up before this court to challenge the impugned award. 3. Learned counsel for the claimants contends that the Tribunal, at any rate, had erred perversely in reckoning the monthly income of the deceased at Rs.5,000/- only. The overwhelming evidence available in this case should have persuaded the Tribunal to agree that the deceased was actually earning much larger amount by his efforts. The deceased by all indication, it is contended, appear to be a very industrious and hard working person. He died at the age of 22 years. 4 years MACA 1352 \/05 & 1001/2006 3 prior to the date of his death, he had started a business in Hyderabad and he was earning substantial amounts by the running of such agency of M/s.Kerala Roadways. According to the claimants, the monthly income of the deceased exceeded Rs.35,000/-. Crucial evidence on that aspect is tendered by RW1 who was summoned by the Insurance Company to ascertain the quantum of monthly income. RW1 stated, duly supported by documents, that the average monthly cash flow by way of commission from M/s.Kerala Roadways to the deceased was Rs.20,000/- to Rs.25,000/-. But there was also the evidence that out of this amount, he had to meet all the expenses relating to running of the agency at Hyderabad. What precisely is the net profit made out of such running of the agency was not placed before the Tribunal. It was in these circumstances that the Tribunal reckoned the monthly income only at Rs.5,000/-. 4 Learned counsel for the Insurance company, on the contrary, contends that a 22 year old deceased could not at any rate be assumed to have earned an income of Rs.5,000/- per month. The evidence of RW1, though procured by the Insurance MACA 1352 \/05 & 1001/2006 4 Company, cannot lead the court to the conclusion that the deceased was earning an income of Rs.5,000/- per mensem. The amount awarded deserves to be reduced, contends the learned counsel for the Insurance company. 5. Learned counsel for the Insurance company in the appeal preferred by the Insurance Company further contends that the deceased being a bachelor, his parents could not have obtained a contribution in excess of one half of the income. Following the dictum in **Sarla Verma v. Delhi Transport Corporation [ (2009)6 S.C.C. 121]** it is contended that the Tribunal erred in reckoning only 1/3[rd] as the personal expenses of the deceased. In these circumstances, the learned counsel for the Insurance Company argues that the quantum of compensation awarded under the head of loss of dependency deserves to be reduced. He has of course raised the further contention that the amounts awarded under all other heads also deserve to be reduced. 6. We have considered all the relevant inputs. RW1 examined by the Insurance company with the help of the documents produced asserted that the deceased was earning an MACA 1352 \/05 & 1001/2006 5 income of Rs.20000-25000 a month. Out of that of course, he had to meet the expenses relating to running of the agency at Hyderabad. No precise, specific or authentic data is available before court to ascertain what would have been the net profit/income from the business run by the deceased at Hyderabad. But reasonable inferences can certainly be drawn. Taking all the relevant circumstances into account, we agree that the monthly net income of the deceased by his efforts can safely be reckoned at Rs.6,500/- per mensem. Out of this amount, we agree, following the dictum in **Sarla Verma (supra),** that only 50% can be held to be the contribution to the parents. We are however, satisfied that the same amount can be reckoned as contribution for the entire period of the multiplier. 7. That takes us to the next area of controversy as to what must be accepted as the correct multiplier. The younger of the two parents is shown to be aged 50 years. The Tribunal, in these circumstances, reckoned her as belonging to the age group of 50-55 years(i.e.above 50 years not exceeding 55 years). If we peruse the 2nd Schedule of the Motor Vehicles Act, it can be MACA 1352 \/05 & 1001/2006 6 seen that persons are divided into groups depending on their age. The age group of persons is described “as above ‘a’ years not exceeding ‘b’ years”. However, in **Sarla Verma(supra),** when the learned Judges tried to standardize the multiplier, divided persons into age groups for the purpose of ascertaining the multiplier by a different description. The age groups are specified in paragraph 42. The division is into age groups of 1520, 21-25, 26-30, 31-35, 36-40, 41-45, 46-50, 51-55, 55-60,61-65, 66-70 and 71-75 etc. The stipulations in a precedent cannot be read as stipulations in a statute. We have to realise that while the learned Judges prescribed the table, the age groups were so shown that the next age group was shown to commence from one year above the previous age group. The prescription is of age groups a to b, b+1 to c, c+1 to d etc. This cannot evidently lead us to the conclusion that for persons who are in the age group of (x and x+1), no multiplier is at all specified. We deem it absolutely reasonable to assume that the age group in the table given in **Sarla Verma(supra)** was given following the age group given in the IInd Schedule. So reckoned, we are of the MACA 1352 \/05 & 1001/2006 7 opinion that all persons aged from ‘x’ years to ‘y’ years (i.e. “who are above 'x' years and have not completed of 'y' years” )must be included in the first group and those above the age of ‘Y’ years must be included in the next group. In these circumstances, we do not find merit in the contention that a person aged above 'x' years but has not attained the age of x+1 years must be included in the persons of the previous age group and not the next. We read the age of the deceased given in the table in **Sarla Verma(supra)** to mean that persons who have completed the age of 50 years upto persons who have not completed the age of 55 years must be included in a common group and for them 11 is the multiplier applicable. On completion of the prescribed age they go to the next group. So considered, we are satisfied that the multiplier 11 adopted by the Tribunal is absolutely justified considering the age of the mother of the deceased who is said to be a woman aged 50 years. In the absence of better evidence, we reckon that she has crossed the age of 50 years and the Tribunal has correctly reckoned the multiplier as 11. MACA 1352 \/05 & 1001/2006 8 8. Though the learned counsel for the Insurance company has challenged the amounts awarded under the other heads of transportation, funeral expenses, bystander expenses, loss of affection and loss of estate, we are satisfied that no appellate interference is required with the amounts awarded under those heads. We take note particularly that the death was taken place at Hyderabad. 9. The above discussions lead us to the conclusion that the claimants are entitled to a further amount of Rs.1,09,000 /- as per the details shown below as compensation in addition to the amount already awarded to them by the Tribunal. 1) Loss of dependency :Rs.1,09,000/(6500x12x11x1/2=4,29,000-3,20,000) Total : Rs1,09,000/- ============= 10. Interest has been awarded only at the rate of 6% per annum. Learned counsel contends and we agree that the interest must have been awarded at a higher rate for the entire period. We direct that interest be paid at 7.5%. MACA 1352 \/05 & 1001/2006 9 ## 11. In the result, a) M.A.C.A. No.1001/2006 filed by the Insurance company is dismissed. b) M.A.C.A. No.1352/2005 filed by the claimants is allowed in part. c) The claimants are found entitled to a further amount of Rs. 1,09,000/-(Rupees one lakh and nine thousand only) in addition to the amount awarded by the Tribunal. d) We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the claim to the date of payment/realization. e) All other directions of the Tribunal are upheld. Sd/- ## **R.BASANT, JUDGE** ## **TRUE COPY** **Sd/M.C. HARI RANI,JUDGE** ks. P.S.TO JUDGE MACA 1352 \/05 & 1001/2006 10