V. Madhavan and others v. A. Ramesh and A.D. James and United India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937** **MACA.No. 2530 of 2009 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 521/2003 of M.A.C.T., PALAKKAD DATED 02-12-2008** ## **APPELLANTS/PETITIONERS:** **1. V. MADHAVAN, S/O. VELAYUDHAN, KINATTINGAL HOUSE, PANAYUR P.O., POLPULLY, PALAKKAD.** **2. PANKAJAM, W/O. MADHAVAN, KINATTINGAL HOUSE, PANAYUR P.O., POLPULLY, PALAKKAD.** **3. MANJULA, W/O. MURALI, KINATTINGAL HOUSE, PANAYUR P.O., POLPULLY, PALAKKAD** **4. ARUNPRASANTH, S/O. MADHAVAN, KINATTINGAL HOUSE, PANAYUR P.O., POLPULLY, PALAKKAD.** **BY ADV. SRI.A.R.GANGADAS** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. A. RAMESH, S/O. R.K. ARUMUGHAN NADAR, HOUSE NO.4/894, RAJESH VILLA, KUDILIL ROAD, RAJAGIRI P.O., SOUTH KALAMASSERY, ERNAKULAM.** **2. A.D. JAMES, S/O. DEVASYA, POIKATTUSSERY, CHENGAMANADA P.O, NEDUMBASSERY, ERNAKULAM DISTRICT.** **3. UNITED INDIA ASSURANCE CO. LTD, KAP COMMERCIAL CENTRE, R.S. ROAD, ALUVA, ERNAKULAM DISTRICT.** **R3 BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.2530 of 2009 ....................................................... Dated this the 26[th] day of February, 2016. ## **JUDGMENT** ## **K. Ramakrishnan, J:** The claimants in O.P.(M.V.)No.521 of 2003 on the file of the Motor Accidents Claims Tribunal, Palakkad are the appellants herein. The appellants are parents and siblings of deceased Ashok, who died in a motor vehicle accident occurred on 10.3.2003. According to the claimants, the deceased was driving the motor cycle bearing registration No.TN.37.R.6355 through Palakkad-Coimbatore public road at 7.15 a.m on that day. When he reached the place of occurrence, a lorry with registration No.KL.7/AB 3546 came at a high speed in a rash and negligent manner and hit against the motor cycle driven by the deceased, he was thrown out and sustained severe injuries and he died while he was undergoing treatment in the District Hospital, Palakkad on the same day. He was a goldsmith engaged in designing of jewellery of M/s. Arun Dye Works, Coimbatore on a monthly income of Rs.8,000/-. They claimed a total compensation of Rs.6,10,000/- on various heads. 2. Respondents 1 and 2 did not appear. The third respondent entered appearance and filed a written statement 2 M.A.C.A.No.2530 of 2009 contending that the vehicle was insured with them and they denied the allegation of negligence on the part of the second respondent, who was the driver of the lorry. The first respondent was the owner and third respondent was the insurer. The accident occurred due to the negligence of the deceased and as such they are not liable to pay any compensation. They also denied the income, age, occupation etc of the deceased and dependency of the petitioners. The total compensation claimed is exorbitant. 3. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the second respondent and awarded a total compensation of Rs.2,63,100/- on various heads as follows: Loss of dependency : Rs.2,37,600/Transport to hospital : Rs.3,000/Funeral expenses : Rs.5,000/Loss of estate : Rs.2,500/- Love and affection to the petitioners : Rs.15,000/----------------------Total : Rs.2,63,100/=========== M.A.C.A.No.2530 of 2009 3 and directed the insurance company to pay the amount with 7.5% interest from the date of petition till payment together with cost of Rs.1,000/- and directed the parties to share the amounts equally in among us awarded to the siblings. Dissatisfied with the quantum of compensation awarded, the above appeal has been preferred by the appellants/claimants before he tribunal. 4. Heard Sri. A.R. Gangadas, learned counsel appearing for the appellants and Smt. Raji T. Bhasker, learned counsel appearing for the insurance company/the third respondent. 5. Learned counsel appearing for the appellants submitted that the tribunal had erred in fixing the monthly income of Rs.2,500/which is very low. No future prospects have been taken into consideration for finding monthly income of the deceased. Further, the multiplier taken is also less. In view of Sarla Verma (Smt) and others v. Delhi _**Transport Corporation and another**_ (2009(6) SCC 121), the multiplier ought to have been taken is 18. The amounts awarded under the heads loss of love and affection, pain and sufferings, funeral expenses also low. No amount was awarded under the head pain suffered by the deceased. No compensation was awarded to the siblings to the love and affection. So according to the learned counsel, the total compensation awarded is less and they 4 M.A.C.A.No.2530 of 2009 are entitled to get enhanced compensation. 6. On the other hand, learned counsel for the insurance company submitted that since the deceased was a bachelor and dependents are the parents, the tribunal should have deducted 50% in view of _**Sarla Verma's case (**_ cited supra) for personal expenses of the deceased. Further, the tribunal had properly appreciated the evidence and total compensation awarded is just and proper. 7. Since there is no appeal filed against the question of negligence, there is no necessity to repeat the facts and cause of accident in this case. According to the petitioners, the deceased Ashok was aged 24 years, working as designer in M/s. Arun Dye Works, Coimbatore and getting a monthly income of Rs.8,000/-. Except interested testimony of PW1, there is no evidence adduced to prove this fact. Since it was not proved through the person, who issued the salary certificate Ext.A10, the tribunal was perfectly justified in not taking that into account for the purpose of fixing compensation. In the absence of any evidence adduced, the tribunal was perfectly justified in fixing the monthly income of the deceased as Rs.2,500/per month. But in the decision reported in _**Rajesh v. Rajbir Singh**_ ([2013 (3) KLT 89 (SC)] the Supreme Court has held that even in cases where there is permanent income, future prospects will have to 5 M.A.C.A.No.2530 of 2009 be taken into account and in the case of persons who are between the age group of up to 40 years, future prospects will have to be taken as 50%. Considering the age of the deceased, taking 50% as the future prospects, monthly income of the deceased can be fixed at Rs.4,050/=( 2700x150%) and this can be taken as the multiplicand for the purpose of assessing compensation under the head loss of dependency. The deceased was aged 24 years. The tribunal had taken the age of the parents for the purpose of fixing the multiplier, which is not correct by the later decisions of the Apex Court in _**Rajesh's case**_ (cited supra) and _**Amrit Bhanu Shali & Others v. National Insurance Company Ltd. & Others**_ (2012 (11) SCC 738) and also in _**Munnalal Jain and another v. Vipinkumar Sharma and others**_ (JT 2015 (5) SC1). The age of the deceased will have to be taken into consideration for selecting the multiplier as there is certainty with regard to it and in case of dependents, there will be dispute as to whose age is to be taken. In _**Sarla Verma's case**_ (cited supra), the multiplier applicable to the age group of 24 will be 18. Further in the same decision it has been held that if dependents are the parents and the deceased is a bachelor, then 50% has to be deducted for the personal expenses of the deceased. If a recalculation is made on that basis, the appellants will be entitled to 6 M.A.C.A.No.2530 of 2009 get a compensation of Rs.4,37,400/- (4050x12x18x50%) instead of Rs.2,37,600/- awarded by the tribunal under the head loss of dependency, thereby the appellants are entitled to get an additional compensation of Rs.1,99,800/- under that head which we award. 8. In _**Rajesh's case**_ (cited supra), the Supreme Court has held that in a case where there is no evidence adduced regarding the exact amount incurred for funeral expenses, a minimum sum of Rs.25,000/- will have to be awarded under that head. In this case, the tribunal had awarded only Rs.5,000/-. So the appellants will be entitled to an additional amount of Rs.20,000/- under the head funeral expenses. No amount was awarded under the head pain and sufferings suffered by the deceased. This Court as well as the Apex Court has used to award a conventional amount as compensation for pain and suffering suffered by the deceased as estate of the legal heirs. So we award Rs.10,000/- under the head pain and sufferings suffered by the deceased. In _**Amrit Bhanu Shali's case**_ (cited supra), the Supreme Court has awarded Rs.50,000/- each as compensation for love and affection of parents for the death of their son aged 24 years. Applying the same principle, the parents will be entitled to get a compensation of Rs. One lakh jointly under the head loss of love and affection instead of Rs.15,000/- awarded by the M.A.C.A.No.2530 of 2009 7 tribunal, thereby they will be entitled to get an additional amount of Rs.85,000/- which we award under that head. Merely because the siblings are not dependents of the deceased, it cannot be said that they are not entitled for any compensation. They lost love and affection of their brother. The fourth petitioner is only 19 years at the time of accident. Considering these aspects, we feel that an amount of Rs.10,000/- can be awarded under the head loss of love and affection of the siblings. We are not inclined to grant any amount under other heads as the amounts awarded under other heads appear to be just and proper. In all the appellants will be entitled to an additional compensation of Rs.3,24,800/- over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Four months time is granted to the insurance company to deposit the amount. Considering the fact that the fourth appellant was aged only 19 years at time of the accident and parents were old, he also will be depending on the earnings of the brother at the time of his death. Though sister was given in marriage, it cannot be said that she would not be provided with any amount by the deceased out of love and affection. So considering these facts, we feel that out of the additional compensation awarded by this Court, 8 M.A.C.A.No.2530 of 2009 an amount of Rs.50,000/- each be paid to appellants 3 and 4 and balance amount be divided among the parents equally. With the above modifications of the impugned award, the appeal is allowed in part and disposed of accordingly. Parties are directed to bear their respective costs in the appeal[. ] Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge M.A.C.A.No.2530 of 2009 9 10 M.A.C.A.No.2530 of 2009 ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.2530 of 2009 & C.M.Appln.No.2981 of 2009 ....................................................... Dated this the 26[th] day of February, 2016. ## **O R D E R** ## **P.N. Ravindran, J:** ## M.A.C.A.No.2530 of 2009: Registry has reported that the second respondent has not been served. Second respondent is the driver of the motor vehicle involved in the accident. Third respondent is its insurer. The third respondent does not dispute its liability to indemnify the insured. In such circumstances, we are of the opinion that notice to the second respondent can be disposed with. We accordingly dispense with notice to the second respondent. Service complete. ## C.M.Appln.2981 of 2009: The prayer in this application is to condone the delay of 11 days in filing M.A.C.A.No.2530 of 2009. Heard, not opposed allowed. ## MACA 2530 of 2009: Admit. Smt. Raji T. Bhasker, learned counsel takes notice for the third respondent. Notice to respondents 1 and 2 dispensed with for the reason that the third respondent insurer does not dispute its liability to indemnify them. Service complete. ## **P.N. RAVINDRAN, JUDGE.** ## **K. RAMAKRISHNAN, JUDGE.** cl