V.J. Yohannan and others v. National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937 MACA.No. 2680 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 283/2009 of MACT, KALPETTA DATED 09-08-2012 APPELLANT(S)/PETITIONERS: --------------------------------- 1. V.J.YOHANNAN, AGED 60 YEARS S/O. JOSEPH, VATTAKAVUNKAL HOUSE, KARTIKULAM P.O. MANANTHAVADY TALUK, WAYANAD DISTRICT. 2. MOLLIKUTTY C.S., AGED 53 YEARS W/O. V.J.YOHANNAN, VATTAKAVUNKAL HOUSE KARTIKULAM P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT. 3. JOMON P.Y., AGED 32 YEARS S/O. V.J.YOHANNAN, VATTAKAVUNKAL HOUSE KARTIKULAM P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT. 4. LISSY MOL P.Y., AGED 27 YEARS D/O. V.J.YOHANNAN, VATTAKAVUNKAL HOUSE KARTIKULAM P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S)/RESPONDENT NO. 4: ------------------------------------------ NATIONAL INSURANCE COMPANY LTD. AROOR BRANCH, ERNAKULAM DISTRICT-688534. BY ADV. SMT.P.K.SANTHAMMA BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& MARY JOSEPH, JJ.** **========================== M.A.C.A. No. 2680 OF 2012 ==========================** Dated this the 10[th] day of March, 2016 ## **JUDGMENT** Ravikumar, J. The legal heirs of one Samon who died in a motor accident filed the captioned appeal soliciting enhancement of the amount of compensation awarded by the Motor Accidents Claims Tribunal, Kalpetta in OP(MV) No.283 of 2009. Deceased Samon was standing by the side of By pass Junction at Aluva on 31.12.2004 at about 8 p.m. He was knocked down by a lorry driven by the first respondent in a rash and negligent manner. Immediately he was taken to the Medical Trust Hospital, Ernakulam and from there he succumbed to the injuries, on 2.1.2005. It is seeking compensation for his death that the aforementioned claim petition was filed. **M.A.C.A.2680/2012** 2 2.To establish the claim, the appellants got marked Exts.A1 to A7. No documentary evidence was adduced by both sides and in the case of respondents, they did not adduce any oral evidence as well, before the Tribunal. The Tribunal passed the impugned award for a total compensation of `2,34,000/- with interest @ 7.5% per annum from the date of the petition till realisation. 3.We have heard the learned counsel for the appellants and the learned counsel for the sole respondent, the insurer of the offending vehicle. At the outset, it is to be noted that the accident, insurance coverage of the offending vehicle as also the proximate cause of accident that resulted in the death of Samon as negligence from the part of the driver of the offending vehicle, are not in dispute. In such circumstances, it is unnecessary to go into such details and we are of the view that what survives for consideration is whether the appellants are entitled to get enhancement of compensation claimed under any of the heads. 4.In the claim petition it was pleaded that deceased Samon was a **M.A.C.A.2680/2012** 3 driver and he was earning a monthly income of `7500/-. At the same time, it is obvious that no evidence whatsoever was adduced by the appellants in support of such claim. It was in the said circumstances that the Tribunal fixed the monthly income of deceased Samon, notionally. Taking note of such circumstances it cannot be held that the Tribunal has committed any illegality or error in fixing the monthly income notionally. But at the same time, the question to be decided is whether the notional income fixed by the Tribunal viz., `3,000/- is meager and whether it invites appellate interference. As noticed hereinbefore, the accident took place on 31.12.2004 and at the time of his death, he was aged 27 years. In the contextual situation, for fixing the multiplicand for the purpose of fixation of compensation payable under the head loss of dependency, it is only worthwhile to note the decision of the Hon'ble Apex Court in **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** The accident involved in that case occurred in the year 2004 and the Hon'ble Apex Court fixed the monthly income of the deceased as a coolie at `4500/-. In such circumstances, taking **M.A.C.A.2680/2012** 4 into account the age of the appellant and the year of the accident and the appellant was eking out his livelihood by doing works in the nature of coolie works, we are of the view that it is only proper and reasonable to fix the monthly income of deceased Samon notionally at `4500/-. The learned counsel for the appellants submitted that the Tribunal has also erred in fixing the multiplier. A perusal of paragraph 12 of the impugned award would reveal that the Tribunal took the multiplier as 11 with reference to the age of the mother. In the light of the decision in **Munna Lal Jain v. Vipin Kumar Sharma** reported in **(2015) 6 SCC 347,** there cannot be any doubt with respect to the fact that while considering compensation for death in claim under section 166 of the M.V Act, for loss of dependency, the multiplier has to be adopted with reference to the age of the deceased and not with reference to the age of the dependents. In the light of the exposition of law by the Apex Court in that regard, we have no hesitation to hold that the Tribunal had erred in taking the multiplier. Deceased Samon was aged 27 years at the **M.A.C.A.2680/2012** 5 time of his death and in such circumstances, in the light of the decision in **Sarla Verma v. Delhi Transport Corporation** reported in **2010 (2) KLT 802 (SC),** the multiplier to be adopted in this case is 17. The learned counsel further contended that taking into account the age of deceased Samon, the Tribunal ought to have taken into consideration the future prospects. According to the learned counsel, the Tribunal ought to have added 50% of the actual income towards the future prospects. The learned counsel contended that even in the case of salaried persons as also self employed persons belonging to the age group of the deceased, in the light of the decisions in **Sarla Verma'** s case and **Santhosh Devi v. National Insurance Company Limited and others** reported in **2012(6) SCC 421,** 50% has to be added to the actual income reckoning the future prospects. But it is to be noted that the decision in **Sarla Verma'** s case applies to salaried persons and in the decision in **Santhosh Devi'** s case it was extended to self employed persons. As noticed hereinbefore, though in the claim petition it was stated that the **M.A.C.A.2680/2012** 6 appellant was a driver by profession, no evidence was adduced. In such circumstances, for the purpose of fixing the multiplicand, we have taken the income fixed notionally by the Apex Court in the case of coolie. Since the deceased was aged 27 years then and in the absence of anything evidencing that he was dependent on others it can safely be concluded that he was eking his livelihood by engaging himself in coolie works. If so, he cannot be treated as a salaried person and his status also cannot be taken as that of a self employed person. In the case of persons doing coolie works, the availability of work would depend upon the demand and necessity of others. He cannot employ himself in any work according to his desire or wish and in fact, such persons who are willing to work are being engaged by others according to their needs and necessities. In similar case, we have already held that taking into account the price index as also the cost of living, 30% has to be added to the income fixed in their case reckoning the future prospects. Their services also cannot be expected without giving enhancement of wages commensurate with escalation of price index and cost of living to certain extent. **M.A.C.A.2680/2012** 7 Admittedly, in this case, the deceased Samon was a bachelor. In such circumstances, in the light of the decision in **Sarla Verma'** s case, 50% of the income has to be deducted towards personal expenses after making such addition reckoning future prospects. After doing such exercise taking into account the relevant factors mentioned hereinbefore, if the amount of compensation under loss of dependency is re-assessed, it would come to `5,96,700/-. The Tribunal granted an amount of `1,98,000/- under the said head. Therefore, after deducting the said amount, the appellants would be entitled to get an amount of `3,98,700/- additionally under the head loss of dependency. Towards bystander expenses, an amount of `1000/- was claimed. However, no amount was granted by the Tribunal. Evidently, the accident occurred on 31.12.2004 and thereafter, Samon was taken to Medical Trust Hospital, Ernakulam. He breathed his last from there, on 2.1.2005. In such circumstances, taking note of the injuries sustained it is evident that he must have had the services of a bystander for two days. Accordingly, we fix `500/- as compensation to be paid under the said head. Towards pain and suffering, no amount was granted though an **M.A.C.A.2680/2012** 8 amount of `1,00,000/- was claimed. True that the accident occurred on 31.12.2004 and Samon died only on 2.1.2005. There is nothing on record which would show that the deceased was in conscious stage when brought to the hospital. Evidently, that must have been the reason that constrained the Tribunal to decline compensation under the head pain and suffering. However, we are inclined to grant the conventional amount of `5,000/- towards the said head. Towards loss of love and affection, an amount of `1,00,000/- was claimed and the Tribunal granted only `10,000/-. Taking note of the fact that that the claimants are the parents and siblings of the deceased, we are inclined to grant an amount of `20,000/- more under the said head. Towards funeral expenses, an amount of `12,000/- was claimed and the Tribunal granted only `5,000/-. In the light of the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** in the absence of evidence for claiming any higher amount of compensation than `25,000/-, at least an amount of `25,000/- has to be paid under the said head. The appellants have not produced any evidence to establish that they are entitled to get more than `25,000/- towards **M.A.C.A.2680/2012** 9 funeral expenses. In the said circumstances, in the light of the said decision we are inclined to grant `25,000/- under the said head. In the light of the aforesaid discussions, the appellants are entitled to get an amount of `4,44,200/- over and above the amount awarded by the Tribunal. The said enhanced amount will carry interest @ 8% from the date of the petition till realisation. The respondent is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. In case of failure on the part of the respondent to deposit the said amount within the above stipulated time, the amount remaining to be paid to the appellant will carry interest @ 9%. There will be no order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH (JUDGE)** **spc/** **M.A.C.A.2680/2012** 10 **M.A.C.A.2680/2012** 11 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.2680/2012** 12