Vijayakumari P. v. The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** **MACA.No. 1907 of 2016 () -------------------------** **AGAINST THE AWARD IN OPMV 1206/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 31-10-2015** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **VIJAYAKUMARI P. W/O CHANDRAN, AGED 54 YEARS, PALAKKAPARAMBU, VALLIKODU, PALAKKAD.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.K.J.ANITHA** **RESPONDENT(S)/2ND RESPONDENT.: ------------------------------** **THE NEW INDIA ASSURANCE COMPANY LTD N.S TOWERS, 1ST FLOOR, NEAR STADIUM BUS STAND, COIMBATORE ROAD, PALAKKAD.678 105** **BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1907 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of November, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The appellant was the claimant in O.P.(M.V.)1206/2011 before the Motor Accidents Claims Tribunal, Palakkad. The said claim petition was filed under Section 166 of the M.V. Act claiming compensation for the death of her son Rajesh. The tribunal as per the impugned award granted a total compensation of Rs.6,65,000/- with interest at the rate of 9% per annum from the date of petition till realisation as against a claim of Rs.8 lakhs. It is in the said circumstances that this appeal has been preferred seeking enhancement of the quantum of compensation. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondent insurance company. 3. From the submissions made at the bar it is evident that there is absolutely no dispute regarding the 2 M.A.C.A.No.1907 of 2016 accident, the cause of accident as also the liability to indemnify the insured owner. In such circumstances we are of the view that the sole question to be resolved in this case is whether the appellant is entitled to get enhanced compensation. Hence, we are inclined to consider this appeal on merits at the admission stage itself. 4. The main grievance of the appellant is that the tribunal fixed the multiplicand as also the multiplier wrongly. It is contended that for the purpose of arriving at the multiplicand the tribunal took the monthly income of the deceased only at Rs.4,500/-. True that 50% of the income was added to the said income. It is the submission by the learned counsel appearing for the appellant that taking note of the fact that the accident occurred on 24.6.2011 and on the date of the accident the deceased was aged only 27 years the tribunal ought to have fixed the monthly income on a higher side. The further submission is that the tribunal deviated from the dictum laid down by the Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2)** M.A.C.A.No.1907 of 2016 3 **KLT 802 (SC)** which was affirmed by the Apex Court in **Munna Lal Jain & Ors. v. Vipin Kumar Sharma & Ors. [(2015) 6 SCC 347]** while identifying the multiplier. Instead of applying the multiplier with reference to the age of the deceased the tribunal identified the multiplier with reference to the age of the claimant. In such circumstances, we do not find any reason why the contention raised by the learned counsel for the appellant should not be accepted. In **Sarla Varma** 's case the Apex Court held that in a claim for compensation for death filed under Section 166 of the M.V. Act the multiplier has to be identified with reference to the age of the deceased. Obviously paragraph 8 of the impugned judgment itself would reveal that the tribunal identified the multiplier with reference to the age of the claimant. In such circumstances it is evident that the tribunal disregarded the dictum laid down by the Apex Court and therefore the mistake committed by the tribunal has to be corrected. In such circumstances the multiplier is taken as 17. As regards the fixation of the monthly income M.A.C.A.No.1907 of 2016 4 though the claimant averred that the deceased was a goldsmith and was earning Rs.10,000/- she has failed to establish the averments regarding occupation and income. Even in such circumstances, while fixing the monthly income of a person who died in a motor vehicle accident at the age of 27 years, that too, in the year 2011 we are of the view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** ought to have been taken as guidance. In the said decision in respect of a coolie who sustained injuries in a motor vehicle accident which occurred in the year 2004, the Hon'ble Apex Court fixed the monthly income notionally at Rs.4,500/-, for calculation purpose. The accident in question occurred about 7 years since the accident involved in Ramachandrappa's case. Taking note of the year of the accident and also the age of the deceased on the date of the accident and taking the decision of the Apex Court as guidance we are of the view that it is only proper to fix the 5 M.A.C.A.No.1907 of 2016 monthly income of the deceased as Rs.7,000/- for calculation purpose. The tribunal added 50% to the notionally fixed income. Since we have already found that the appellant had failed to establish the averments regarding the occupation of the deceased it has to be taken that absolutely no evidence was adduced by the appellant before the tribunal to show that the deceased was having a stable employment. When the appellant had failed to establish the said aspect the dictum laid down by the Apex Court in **Sarla Varma** 's case as also in **Rajesh v. Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** case cannot be applied. At the same time another aspect has to be looked into. Even in the case of manual labourers increase in the cost of living, price index etc. must have some reflection. Needless to say that by lapse of years such persons would also be constrained to seek for increase in their wages. That apart it is to be noted that in the case of such manual labourers there is no retirement on superannuation and they could continue to work as long as they are healthy. In such M.A.C.A.No.1907 of 2016 6 circumstances, we are of the view that 30% addition can be made to the income notionally fixed as the deceased would have obtained such future prospects but for his untimely death. In such circumstances for calculation purpose the monthly income of the deceased has to be taken as Rs.9,100/-. Based on the modified multiplier and the multiplicand if the amount of compensation payable under the head loss of dependency is reassessed the amount payable to the appellant would be Rs.9,28,200/-. But the tribunal has already granted an amount of Rs.5,85,000/under that head. After deducting the said amount the appellant would be entitled to get an additional compensation of Rs.3,43,200/-. Though an amount of Rs.50,000/- was claimed towards pain and suffering the tribunal did not grant any amount under that head. True that the deceased Rajesh succumbed to the injuries on the same day itself viz. 24.6.2011. But, we are of the view that even in such circumstances it is certain that he must have endured excruciating pain, at least, for some time. In such M.A.C.A.No.1907 of 2016 7 circumstances a conventional amount can be granted. We are inclined to grant Rs.10,000/- under that head. Despite the persuasive argument of the learned counsel for the appellant we do not find any reason to hold that the appellant is entitled to get enhanced compensation under any other heads. 5. The learned counsel for the respondent submitted that the appellant is not entitled to get any amount in excess of the claim made before the tribunal and the appellant had limited her claim of compensation to Rs.8 lakhs. The sum and substance of the contention is that the appellant is not entitled to get compensation in excess of Rs.8 lakhs. We do not think that any volume of argument is required to answer the said contention. The Apex Court in **Rajesh** 's case (supra) held that if tribunal/court finds that the just compensation is above the amount claimed as compensation by the claimant it would be open to the tribunal/court to grant compensation even ignoring the claim of compensation or the heads of compensation. M.A.C.A.No.1907 of 2016 8 Therefore, we find absolutely no reason to uphold the contention of the respondent in that regard. 6. In the light of the above discussion, the appellant is entitled to get an additional compensation of Rs.3,53,200/- (Rupees three lakhs fifty three thousand two hundred only). The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent insurer is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment. The Tribunal shall realise the court fee payable on the amount granted over and above the claim. 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/