Venu, Vijaya, Vinesh and Vineeth vs Anas, Sibu and Reliance General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **SATURDAY, THE 16TH DAY OF SEPTEMBER 2017/25TH BHADRA, 1939** ## **MACA.No. 744 of 2013 ()** **-----------------------AGAINST THE AWARD IN OPMV 806/2008 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 18-01-2013** ## **APPELLANT(S)/PETITIONERS:** **------------------------** ## **1. VENU** **ULLURUPPY HOUSE, VALLAPPADY DESOM, KODAKARA VILLAGE & P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **2. VIJAYA, W/O. VENU, -DO- -DO-** **3. VINEESH, S/O.VENU, -DO- -DO-** **4. VINEETH, S/O.VENU, -DO- -DO-** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. ANAS, S/O. MOHAMMED, CHERUVALLYKUDY HOUSE, EDAVOOR P.O, KALADY** **2. SIBU, S/O.GOPI PARAPPURATH HOUSE, IRINGOLE PO, PERUMBAVOOR** ## **3. RELIANCE GENERAL INSURANCE CO. LTD.** **4TH FLOOR, ELIZABETH ALEXANDER MEMORIAL BUILDINGS SHANMUGAM ROAD, MARINE DRIVE, ERNAKULAM.** **R3 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.744 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of September, 2017** ## **J U D G M E N T** ## **Ravikumar, J.** The legal heirs of the victim of a motor vehicle accident who were the petitioners in OP(MV) 806/2008 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda preferred this appeal seeking enhancement of the quantum of compensation granted as per the award passed thereon. They are the parents and siblings of deceased Vijesh. He lost his life in a motor vehicle accident that occurred on 16.1.2008 at about 3.15 p.m. On that day he was peddling his bicycle through Kodakara - Chalakudy NH-47 and at the place of accident he was knocked down by the goods carrier bearing registration KL-40 A/1106, driven by the second respondent. He sustained very serious injuries and enroute to the hospital he succumbed to them. The appellants filed the said claim petition under Section 166 of the M.V.Act limiting his claim to Rs.5 lakhs. As per the impugned award the Tribunal granted an amount of Rs.3,78,000/- as 2 M.A.C.A.No.744 of 2013 compensation with interest at the rate of 7.5% per annum from the date of petition till realisation. 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the third respondent insurance company. Though notice was served on respondents 1 & 2 they did not choose to enter appearance and resist the claim. 3. There is no dispute regarding the cause of accident as also the liability of the third respondent to indemnify the first respondent, the insured owner of the offending vehicle. In such circumstances, the sole question to be decided is whether or not the appellants are entitled to get enhanced compensation. 4. The learned counsel appearing for the appellants submitted that the Tribunal went wrong in fixing the monthly income as also in identifying the multiplier. In the claim petition it was averred that the deceased was a qualified carpenter and he was getting Rs.9,000/- as monthly income. In a bid to establish the said averments the appellants got examined one Jose as PW2, who issued M.A.C.A.No.744 of 2013 3 Ext.A7 salary certificate. The first appellant was examined as PW1 besides getting marked Exts.A1 to A8. The respondents did not adduce any evidence, either oral or documentary. The Tribunal declined to accept Ext.A7 certificate and fixed the monthly income notationally as Rs.4,000/-. The deceased was aged only 20 years at the time of the accident. The said fact is proved by Ext.A5 which is the copy of the SSLC Book. Learned counsel submitted that the Tribunal went wrong in not following the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , for the purpose of identifying the multiplier with reference to the age of the deceased. The multiplier ought to have been taken as '18' instead of '15', it is submitted. We will, firstly, consider whether the said contentions can be sustained. Ext.A6 certificate would reveal that the deceased had completed Carpenter Trade from Industrial Training Institute, Chalakudy. PW2 who issued Ext.A7 salary certificate deposed to the effect that the deceased was getting Rs.300/as wages as a carpenter. But at the same time PW2 who M.A.C.A.No.744 of 2013 4 claimed the status of the employer of the deceased, was not in a position say the joining date of the deceased in his service. Evidently, as other documents to give credence to Ext.A7 viz., to establish the deceased was his employee and he was being Rs.300/- per day, produced by PW2. The Tribunal did not believe the evidence of PW2. We do not find any reason to interfere with the fixation of the monthly income notionally by the Tribunal in the said circumstances. In other words, we do not find any reason to hold that the Tribunal went wrong in not accepting and acting upon Ext.A7 issued by PW2. At the same time the fact borne out from Ext.A6 would reveal that he had completed his carpentry trade from Industrial Training Institute, Chalakudy. In short, he was a qualified to be a carpenter. In such circumstances, as also taking note of his age at the time of the accidental death and also the year of the accident viz. 2008, we are of the considered view that the fixation of the monthly income notionally as Rs.4,000/- is liable to be interfered with. In view of the factors referred hereinbefore it is only proper to fix the monthly income for M.A.C.A.No.744 of 2013 5 calculation purpose as Rs.6,000/- and accordingly, it is fixed. The question is whether any addition is to be made to the said income reckoning future prospects. Taking into account the age of the deceased at the time of his accidental death and the fact that he was a qualified carpenter as can be seen from Ext.A6 certificate, we are of the view that the appellants are certainly justified in seeking for addition to the income of the deceased, reckoning future prospects. We are inclined to make an addition of 30% of the said income. Consequently, the monthly income for the purpose of calculation has to be taken as Rs.7,800/-. The contention of the appellant that the Tribunal wrongly identified the multiplier is only to be accepted in the light of the decision of the Apex Court in Sarla Verma's case (supra). In terms of the schedule given in Sarla Verma's case (supra) for the age group of 15–20 and 21-25 the multiplier applicable is '18'. In such circumstances the proper multiplier to be applied in this case is '18'. In the light of the said decision in Sarla Varma's case (supra), the Tribunal has rightly effected deduction of M.A.C.A.No.744 of 2013 6 50% of the income reckoning towards personal and living expenses of the deceased as he was a bachelor. In such circumstances, substituting the multiplicand as also the multiplier, the compensation for loss of inconvenience has to be re fixed. On such re assessment, the amount payable to the appellants under that head will be Rs.8,42,400/-. After deducting the amount already granted by the Tribunal viz., Rs.3,60,000/- the additional compensation payable under that head will be Rs. 4,82,400/-. 5. As noticed hereinbefore the appellants/claimants are the parents and siblings of the deceased. They claimed an amount of Rs.50,000/- as compensation towards loss of love and affection. The Tribunal without assigning any reason, declined to grant any amount thereunder. Taking into account the relationship between the deceased and the claimants, we have no hesitation to grant the entire amount claimed viz., Rs.50,000/- towards compensation for loss of love and affection. In short, Rs.50,000/- is granted as compensation for loss of love and affection. Towards funeral expenses, only an amount of Rs.2,000/- is granted. M.A.C.A.No.744 of 2013 7 Taking into account the year of the accident, the appellants are entitled to get the benefits flowing from the decision of the Hon'ble Apex Court in **Rajesh & Ors. v. Rajbir Singh [2013 (3) KHC 212 (SC)** . In such circumstances, an amount of Rs.23,000/- is granted additionally towards funeral expenses. Towards compensation for loss of estate, only an amount of Rs.5,000/- is granted. We are inclined to grant Rs.5,000/- more thereunder. Towards damage to clothing, no amount was granted by the Tribunal. The nature of the injury sustained to which Vijesh succumbed would suggest that the dresses worn by him at the time of the accident must have been damaged. In such circumstances, we are inclined to grant Rs.1,000/- towards damage to clothing. In the light of the enhancement/reassessment made by us, the appellants are entitled to get an additional compensation of Rs.5,61,400/(Rupees five lakhs sixty one thousand four hundred only). It is awarded. The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. In view of the absence of dispute regarding the liability to M.A.C.A.No.744 of 2013 8 indemnify the first respondent, the insured owner of the vehicle - the third respondent is directed to deposit the additional compensation along with interest at the aforesaid rate, within a period of two months from the date of receipt of a copy of this judgment. In view of the enhancement made by us, it has become necessary to realise the balance court fee. On the deposit of the amount by the third respondent, the Tribunal shall realise the court fee payable taking into account the enhanced amount granted by us. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/