Kerala High Court
P.A.Aboobacker vs The United India Insurance Co. Ltd on 2 November, 2009
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937
MACA.No. 1494 of 2015 ()
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AGAINST THE AWARD IN OPMV 314/2008 of PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL,KOZHIKODE DATED 02-11-2009
APPELLANTS/PETITIONERS:
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1. P.A.ABOOBACKER, AGED 59 YEARS
S/O. AHAMMED, RESIDING AT PARATTUKUZHIYIL HOUSE
THIRUVAMBADY(POST), KOZHIKODE
2. LAILABAI, AGED 45 YEARS
RESIDING AT PARATTUKUZHIYIL HOUSE
THIRUVAMBADY(POST), KOZHIKODE
BY ADV. SMT.K.V.RESHMI
RESPONDENT/3RD RSPONDENT:
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THE UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, P.B NO 533, WHITE LINE BUILDING
KALLAI ROAD, KOZHIKODE 673 003
BY ADV. SMT.RAJIT.BHASKAR
SRI.JOHN JOSEPH VETTIKAD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 22-02-2016, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
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M.A.C.A.No.1494 OF 2015
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DATED THIS THE 22nd DAY OF FEBRUARY, 2016
JUDGMENT
P.R.RAMACHANDRA MENON, J.
The appeal is for enhancement of the compensation awarded by the Tribunal in respect of the death of one Noufal, pursuant to the road traffic accident occurred on 11.1.2007.
2. The factual position revealed from the proceedings is that, while the deceased was riding his motor cycle from Omassery to Thiruvambady and when it reached at Thazhe Thiruvambady, a bus bearing No.KL-11-W-4624 owned, driven and insured by respondents 1 to 3 before the Tribunal came from Thiruvambady side and hit on the motor cycle causing serious injuries to the rider of the motor cycle leading to his death, which led to the claim petition filed by the parents of the deceased before the Tribunal seeking to compensate the loss.
3. Before the Tribunal, the matter was contested mainly by the 3rd respondent insurer. The nature of contention raised by the respondent/Insurance Company was mainly on quantum/ MACA No.1494/2015 -2- negligence.
4. The evidence adduced before the Tribunal consists of Exts.A1 to A4 produced and marked on the side of the appellants and Ext.B1 produced and marked on the side of the respondents.
5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred was solely because of the negligence on the part of the 2nd respondent driver of the bus and proceeded to fix the compensation accordingly.
6. Coming to the quantum of compensation payable, the case projected by the claimants before the Tribunal was that the deceased was employed as a Computer Operator in Charishma Surgicals, Thiruvambady with a monthly income of 3,500/-. Referring to serious consequences resulted because of the death, a total sum of 4,00,000/- was claimed accordingly. Considering all the facts and circumstances, the Tribunal reckoned 2,500/- as the monthly income of the deceased for working out the loss of dependency. Awarding amounts under different heads, the total compensation was fixed as 2,85,000/-, which was directed to be satisfied with interest @7% per annum from the date of MACA No.1494/2015 -3- petition. The liability was mulcted upon the shoulders of the 3rd respondent/Insurance Company. Inadequacy of the compensation awarded by the Tribunal is the subject matter of challenge in this appeal.
7. Heard the learned counsel for the appellants and also the learned counsel appearing for the respondent/Insurance Company.
8. The nature of injuries sustained by the deceased as evident from Ext.A2 postmortem certificate, noted in paragraph 9 of the Award, shows that the death was due to injury sustained to head, chest and abdomen.
9. The amounts awarded by the Tribunal under different heads as given in paragraph 11 of the Award are as follows :
Transport to hospital : 1,500/-
Damage to clothing : 500/-
Funeral expenses : 3,000/-
Loss of love and affection : 10,000/-
Loss of estate : 10,000
Loss of dependency : 2,60,000/-
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Total : 2,85,000
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10. The learned counsel for the appellants submits that MACA No.1494/2015 -4- loss of dependency compensated by the Tribunal is on the lower side and that the claim of the appellants as to the monthly income was quite reasonable in so far as it was only to the tune of 3,500/- per mensem being a computer mechanic. It is stated that the amounts awarded by the Tribunal towards funeral expenses, loss of love and affection, etc. are on the lower side and not in conformity with the law declared by the Apex Court in Rajesh v. Rajbir Singh (2013 (3) KLT 89). No amount has been awarded towards pain and suffering as well.
11. The learned counsel for the Insurance Company submits that no evidence has been adduced with regard to the avocation or income. Even if it is true that no positive evidence was adduced oral or documentary with regard to the occupation or income, the deceased was an able-bodied youth of 21 years. Even if he is treated as a general worker, 3,500/- per month claimed by the claimants, considering the date of accident cannot be held as on the higher side. We find it appropriate to reckon the said extent in toto and to rework the compensation, also taking note of the law declared by the Apex Court in Rajesh v. MACA No.1494/2015 -5- Rajbir Singh (2013 (3) KLT 89) and the subsequent decision rendered by the Division Bench of this Court in Valsamma v. Binu Jose (2014 (1) KLT 10) explaining the scope of the aforesaid decision. On reworking the compensation as above, we find it appropriate to award a further amount of 22,000/- towards funeral expenses and an additional sum of 40,000/- towards love and affection and a sum of 10,000/- towards pain and suffering, even though the death occurred on the same day. The Tribunal has reckoned the multiplier as '13' in spite of the fact that the deceased was aged 21 years. The law is now well settled that appropriate multiplier has to be fixed based on the age of the deceased, which cannot be anything other than '18'. True, since the deceased was a bachelor, only 50% could be reckoned towards contribution to family. Thus, loss of dependency comes to 3500x12x 50/100x18=3,78,000/-. After deducting 2,60,000/- awarded by the Tribunal, the balance payable comes to 1,18,000/- under this head. It is awarded accordingly.
12. In the above circumstances, the appellants will be MACA No.1494/2015 -6- entitled for an additional compensation of 1,90,000/-. The appeal was filed with a delay of 1936 days, which was condoned as per order in C.M.Appln.No.1659/2015 dated 10.2.2016, subject to the condition that, if at all any enhancement is ordered, the appellants will not be entitled to get interest for the period of delay. Therefore, the respondent/Insurance Company shall deposit the additional compensation awarded in this appeal together with interest @9% per annum from the date of petition, except for the aforesaid period of delay of 1936 days in filing this appeal, within one month from the date of receipt of a certified copy of this judgment.
The appeal is disposed of as above.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE dsn True copy P.S.to Judge