IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939 MACA.No. 2729 of 2012 () AGAINST THE AWARD IN OPMV 1464/2007 of MACT, IRINJALAKUDA DATED 18-10-2012 APPELLANT(S)/PETITIONERS: 1. SUKUMARI W/O. LATE VISWAMBARAN, MANAKUNNATH HOUSE, PALLISSERY P.O., ARATTUPUZHA VILLAGE, THRISSUR DISTRICT. 2. SALINI D/O. LATE VISWAMBARAN -DO- -DO- 3. MALINI D/O. LATE VISWAMBARAN BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS: 1. SANIL S/O. SADASIVAN, KUNDANI HOUSE, KODAKARA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 680 684. 2. SHAJI S/O. DHARMAN, PALLATHERY HOUSE, MATTATHOORKUNNU P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 680 684. 3. UNITED INDIA INSURANCE CO. LTD. TANA, IRINJALAKUDA - 680 121. R3 BY ADV. SRI.JOHN JOSEPH VETTIKKAD R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [ENTITY] & [ENTITY], JJ. M.A.C.A. No.2729 OF 2012 Dated this the 30th day of August, 2017 JUDGMENT
[ENTITY], J.
The appellants are the claimants in [CASE NUMBER] on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. They are the parents and sisters of one [ENTITY] who lost his life in a motor vehicle accident occurred on 22.6.2007 which led to the filing of the said claim petition. On that day, at about 7.30 a.m, he was riding motor cycle bearing Reg.No.KL-8/V-8604 through Irinjalakuda-Kallettumkara public road. When he reached Thommana, a stage carriage bus bearing Reg.No.KL-8/W-9984, driven by the second respondent dashed against it. On sustaining serious injuries, he was taken to Taluk Head Quarters Hospital, Irinjalakuda and he breathed his last from there, on the same day itself. The claim petition was filed under [SECTION] of the [ACT] claiming a total compensation of Rs.10 lakhs. The Tribunal, as per the impugned award, granted an amount of Rs.4,15,500/- as compensation with interest at the rate of 7.5% per annum from the date of the petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred.
2. We have heard the learned counsel for the appellants and also the learned counsel for the third respondent insurance company.
3. Since there is no dispute regarding the liability of the third respondent to indemnify the first respondent, insured owner of the offending vehicle, issuance of notice to respondents 1 and 2 was dispensed with as per order dated 17.12.2012. In such circumstances, the only question to be considered is whether the appellant is entitled to get enhanced compensation.
4. The learned counsel for the appellants contended that the Tribunal had erroneously fixed the monthly income of the deceased disregarding the averments in the claim petition that the deceased was working as an interior designer and site supervisor and was drawing a salary of Rs.7,000/- per month. In order to establish the said averments, PW3 was examined. The mother of the deceased was examined as PW2. Exts.A14 and A15 were also got marked. They are respectively the certificates of Draftsman Civil and certificate of Diploma in Interior Design. On the side of the respondents Exts.B1 and B2 were got marked. The deceased [ENTITY] was aged only 22 years at the time of accidental death. It is after considering the evidence on record and the rival contentions that the impugned award was passed.
5. The learned counsel for the appellants contended that the erroneous fixation of compensation under different heads including fixation of monthly income deprived just compensation to the appellants. The learned counsel appearing for the third respondent submitted that since the evidence of PW3 was not inspiring confidence, the Tribunal was justified in fixing the monthly income of the deceased notionally. On a perusal of the impugned judgment, it is evident that while being examined as PW3 [ENTITY], proprietor of the designer firm in which the deceased was working, deposed to the effect that the deceased was not paying professional tax. Evidently, apart from the evidence of PW3, no materials were produced by him to show the actual amount paid to the deceased. Taking into account the nature of the evidence let in by the appellants to establish the averments regarding occupation and income of the deceased, we do not find any reason to hold that the Tribunal had gone wrong in fixing the monthly income notionally. But the question is whether the fixation of monthly income as Rs.5,000/- invites interference. The accident occurred on 22.6.2007. As noticed hereinbefore, at the time of accidental death which occurred on the date of accident itself, [ENTITY] was aged only 22 years. Exts.A14 and A15 would reveal that he was a qualified person. In such circumstances, taking into account the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] wherein in the case of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income as Rs.4500/-, we are of the view that it is only reasonable to re-fix the monthly income of the deceased for calculation purpose as Rs.6,000/-. The further question to be considered is whether any addition is to be made to the monthly income reckoning the future prospects. The evidence of PW3 was not inspiring confidence and Ext.A16 salary certificate cannot be taken into consideration for fixing the monthly income of the deceased in view of the quality of evidence let in. As noticed hereinbefore, the Tribunal fixed the monthly income notionally and we have also upheld the fixation of the monthly income notionally by the Tribunal. Even then, the question is whether any addition is to be made to the monthly income fixed notionally for calculation purpose. Evidently, while holding that an addition is to be made in respect of persons who met with an accident and succumbed to the injuries reckoning the future prospects, the Apex Court took into consideration the price index, cost of living etc. as also the income which he would have earned but for the accidental death. In short, it is evident that, but for the accidental death of the deceased, being a qualified person, he could have demanded enhanced rate of wages, for his service, by passage of time. At any rate, taking into account the fact that he was a qualified person, as can be seen from Exts.A14 and A15, we are of the view that it is only just and proper to make an addition of 30% to the income fixed, reckoning his future prospects. In such circumstances, for calculation purpose, the monthly income of the deceased has to be taken as Rs.7,800/-. In this case, the multiplier was adopted by the Tribunal as '13'. As noticed hereinbefore, at the time of accidental death, [ENTITY] was aged only 22 years. Hence, it has to be taken as incorrect identification of the multiplier. Going by the schedule given in [PRECEDENT], the multiplier applicable is '18'. Taking into account the fact that the deceased was a bachelor, the Tribunal rightly made deduction of 50% of the income towards personal and living expenses of the deceased. In short, a re-assessment of the dependency compensation has to be made by substituting the monthly income as Rs.7,800/- and the multiplier as '18'. On such calculation, the amount payable will be Rs.8,42,400/-. After deducting an amount of Rs.3,90,000/- already awarded by the Tribunal, the appellants are entitled to get an amount of Rs.4,52,400/- additionally under the head loss of dependency. Taking into account the date of the accident, the appellants are entitled to get the benefit flowing from the decision of the Hon'ble Apex Court in [ENTITY] and others v. Rajbir Singh and others [(2013) 9 SCC 54], for the purpose of fixing the amount payable towards funeral expenses. The Tribunal has awarded only an amount of Rs.2,000/-. In the light of the decision in [ENTITY]'s case, the appellants are entitled to get an amount of Rs.23,000/- additionally under the head funeral expenses. It is granted. Towards damage to clothing, no amount was awarded by the Tribunal. The nature of the injuries would indicate that the dresses worn by him must have been spoiled. Hence, we grant an amount of Rs.1,000/- under the said head. Towards loss of estate, an amount of Rs.2,500/- was awarded. We are of the view that appellants are entitled to get a conventional amount of Rs.10,000/-. Hence, after deducting the amount already awarded by the Tribunal, they are entitled to get Rs.7,500/- additionally. Towards loss of love and affection, the Tribunal awarded Rs.10,000/-. The claim petition was filed by the parents and the elder sisters of deceased [ENTITY]. During the pendency of the claim petition, the father died. Taking into account the relationship of the appellants with the deceased, we are of the view that an amount of Rs.50,000/- can be granted additionally towards loss of love and affection. In the light of the enhancement made by us, the appellants are entitled to get an additional compensation of Rs.5,33,900/-. It is granted. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. The third respondent is directed to deposit the additional compensation along with interest thereon within two months from the date of receipt of a copy of this judgment. The additional compensation shall be apportioned among the appellants in the ratio 70:15:15.
Appeal is disposed of. No order as to costs.
[ENTITY] (JUDGE) Sd/-
[ENTITY] (JUDGE) spc/ [CASE NUMBER] 10 [ENTITY], J. JUDGMENT September,2010 [CASE NUMBER] 11