Vilasini (Mother of Deceased) and Dhanya (Sister of Deceased) v. Jinil Jose & Ors

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 8TH DAY OF JULY 2016/17TH ASHADHA, 1938 MACA.No. 1376 of 2012 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.266/2010 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 12-12-2011 ## APPELLANTS/PETITIONERS: ------------------------------ 1. VILASINI, W/O.LATE SANKARAN, CHUNDELAPARAMBIL HOUSE, NJELLUR, KALLOOR.P.O., THRISSUR (MOTHER OF DECEASED) 2. DHANYA, W/O.NANDAGOPAN, CHERUSSERY HOUSE, VALLACHIRA, THRISSUR (SISTER OF DECEASED) BY ADVS.SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. JINIL JOSE, S/O.JOSE, MUPALAKAYIL HOUSE, MALIPPARA DESOM, PINDIMANA VILLAGE, KOTHAMANGALAM, ERNAKULAM-686 691 (DRIVER OF KL 05 3366 CAR) 2. JOSE, S/O.PHILIP, MUPALAKAYIL HOUSE, MALIPPARA DESOM, PINDIMANA VILLAGE, KOTHAMANGALAM - 686 691, ERNAKULAM (OWNER OF KL 05 3366 CAR) 3. THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, 'PRANAVAM', MELE PATTAMBI, POLICY NO.441702/31/2010/8538 VALID FROM 16/11/2009 TO 15/11/2010. R3 BY ADV. SRI.A.R.GEORGE R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.1376 of 2012 -------------------------------Dated 8[th] July, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The legal heirs of one Dhanesh who died in a motor vehicle accident comes up in appeal on being dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Ottappalam in O.P.(M.V)No.266 of 2010. They were the petitioners in the said claim petition. The accident in question occurred on 12.3.2010 at about 9.20 p.m. On that fateful day while Dhanesh was walking through the side of Thrissur - Kodakara NH 47 a car bearing Reg.No.KL 5-336 driven by the first respondent knocked him down. He was taken to Jubilee Mission Hospital, Thrissur from where he succumbed to the injuries on the next day. It is in the said circumstances that the above mentioned claim petition was filed by the appellants herein who are respectively the mother and sister alleging that the accident occurred due to the rash and negligent driving of the first respondent. It is further stated therein that the 2[nd] respondent, the insured owner of the vehicle is vicariously liable and the 3[rd] respondent insurer of the aforementioned vehicle is liable to indemnify the 2[nd] respondent. To M.A.C.A.No.1376/2012 2 establish their claim for an amount of 8,00,000/- the first appellant₹ got examined as PW1 besides getting marked Exts.A1 to A15. On the side of the respondents no evidence whatsoever was adduced. The Tribunal upon considering the rival contentions and evidence on record as per the impugned award granted an amount of 2,71,150/- as₹ compensation with interest at the rate of 7% 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 3[rd] respondent insurance company. 3. The accident, insurance coverage of the offending vehicle and the cause of the accident as the rashness and negligence from the part of the first respondent are not at all in dispute. In such circumstances, the question to be considered is whether the appellants are entitled to get enhanced compensation. To contend that the appellants are entitled to enhanced compensation the learned counsel for the appellants submitted that the Tribunal went wrong in fixing the multiplier with reference to the age of the mother of the deceased. It is contended that the question how it should be identified is no more _res_ M.A.C.A.No.1376/2012 3 _integra_ in the light of the decision in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)).**_ Going by the said decision the multiplier has to be taken with reference to the age of the deceased. It is contended that though in the claim petition it was specifically averred that the deceased Dhanesh was an Aluminium Fabrication Worker and was earning 10,000/- per month the Tribunal₹ ignored such contentions and fixed the monthly income of the deceased only at 3,500/- for calculation purpose. That apart, it is contended₹ that the Tribunal granted only an amount of 5,000/- towards funeral₹ expenses as against a claim of 30,000/-. The learned counsel further₹ contended that the Tribunal granted only meagre amounts under the heads `loss of love and affection' and `loss of estate'. The contention is that it is the erroneous fixation of the compensation under the aforesaid heads that resulted in denial of just compensation. Per contra, the learned counsel appearing for the 3[rd] respondent contended that the appellants cannot legally raise any grievance with reference to the fixation of monthly income notionally as despite taking up specific contentions regarding the occupation and income in the claim petition they had failed to adduce evidence to establish such contentions. It is further contended by the learned counsel that a perusal of the schedule of compensation appended to the impugned award would reveal that M.A.C.A.No.1376/2012 4 under all heads the Tribunal has granted adequate compensation to the appellants. In such circumstances, no appellate interference is called for, it is contended. 4. Firstly, we will consider the question whether the Tribunal erred in fixing the multiplier and multiplicand for the purpose of determining the compensation payable under the head `loss of dependency'. While considering the question regarding the fixation of multiplier we see no reason to reject the contention raised by the learned counsel for the appellants. The question how it should be decided is no more _res integra_ and it is settled by the Hon'ble Apex Court in _**Sarla Verma's**_ case (supra) that in a claim for death filed under Section 166 of the Motor Vehicles Act it has to be decided with reference to the age of the deceased. In this case, the deceased Dhanesh was aged 27 years on the date of the accident. In such circumstances, in the light of the decision in **Sarla Verma's** case (supra) the multiplier applicable in this case is `17'. With reference to the question whether the Tribunal is justified in fixing the monthly income at 3,500/- notionally we have to consider the following₹ aspects. True that despite taking specific averments regarding the occupation and income the appellants had failed to establish such M.A.C.A.No.1376/2012 5 contentions before the Tribunal. In such circumstances, it cannot be said that the Tribunal went wrong in fixing the monthly income notionally. But, at the same time, the question to be decided is whether the fixation of monthly income as 3,500/- can be sustained₹ or whether it requires an upward modification ? In that context, in the light of the decision of the Hon'ble Apex Court in _**Ramachandrappa v.**_ ## _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ _**((2011) 13 SCC 236)**_ we are of the view that the monthly income of the deceased fixed by the Tribunal is too low and it is to be fixed at ₹ 5,500/- notionally. Admittedly, the deceased was a bachelor. In such circumstances, in the light of the decision of the Apex Court 50% of the income has to be deducted towards personal expenses while fixing the amount payable under the head `loss of dependency'. Then the question is whether an addition has to be effected reckoning future prospects. The appellants have produced Ext.A10 certificate revealing the qualification of the deceased Dhanesh. It would reveal that he was a holder of certificate in Refrigeration and Air Conditioning from Jan Shikshan Sansthan, which is an Institute under the People's Education Under the Ministry of Human Resource Development, Department of Elementary Education and Literacy, Government of India. True that the deceased cannot be treated as a salaried person or a self employed M.A.C.A.No.1376/2012 6 person or a person with fixed wages. Taking note of Ext.A10 certificate, we are of the view that there is absolutely no justification for not reckoning the future prospects which he must have had but for the untimely death. We are of the view that taking note of the age of the appellant, it would be only proper to make an addition of 30% of the income reckoning for the future prospects. In this case, the Tribunal adopted the multiplier as `11' evidently with reference to the age of the mother of the deceased, the first appellant. In the light of the decision of the Hon'ble Apex Court in **Sarla Verma** v. **Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , which was virtually affirmed by a three Judges Bench in **Munna Lal Jain & Ors.** v. **Vipin Kumar Sharma & Ors. [(2015) 6 SCC 347]** there cannot be any doubt with respect to the position that the multiplier for the purpose of computing the compensation under the head loss of dependency, should be taken with reference to the age of the deceased and as already held it is to be taken as '17'. Taking into account the multiplier and monthly income fixed above, the amount of compensation under the head loss of dependency on re-assessment would be 7,29,300/-. But the Tribunal₹ has already granted an amount of 2,31,000/- under that head. Hence₹ after deducting the said amount from the amount assessed as above, the appellants are entitled to get an amount of 4,98,300/- additionally₹ M.A.C.A.No.1376/2012 7 under that head. It is granted. Towards funeral expenses, as against a claim of 30,000/-, the Tribunal granted only an amount of 5,000/-.₹ ₹ In the light of the decision of the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** in the absence of evidence for higher expenses, a minimum of 25,000/- shall be the amount to be₹ granted towards funeral expenses. In this case, the petitioner has not adduced any evidence of having incurred more than 25,000/- towards₹ funeral expenses and in such circumstances, the appellants are entitled to get only an amount of 20,000/- additionally under that head.₹ Towards loss of estate, though no amount has been claimed by the appellants, we are of the view that in the light of the decision in **Sarla Verma's** case (supra) a conventional amount can be granted, which according to us is 10,000/-. It is awarded under the said head.₹ Towards damage to clothing though the appellants claimed an amount of 10,000/-, the Tribunal did not grant any amount. The nature of the₹ injuries sustained by the deceased would undoubtedly go to show that the dresses worn by him at the time of the accident must have been damaged. In such circumstances, we are inclined to grant 1,000/-₹ towards damage to clothing. Towards loss of love and affection, the Tribunal granted only an amount of 15,000/-. The appellants are the₹ mother and sister of the deceased. Taking note of the relationship with M.A.C.A.No.1376/2012 8 the deceased, we are of the view that they are only entitled to get an amount of 10,000/- more under that head.₹ 5. In the light of the aforesaid discussions, the appellants are entitled to get a total enhanced compensation of 5,39,300/-₹ (Rupees five lakhs thirty nine thousand and three hundred only). The third respondent Insurance Company is directed to deposit the enhanced amount within three months from the date of receipt of a copy of this judgement with interest @ 8% per annum from the date of petition till realisation. In case of failure to deposit the said amount within the above stipulated time, the amount remaining to be paid will carry interest @ 9%. The appeal is disposed of accordingly. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS/shg