IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 MACA.No. 1090 of 2009() ----------------------- OPMV.449/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANTS: -------------- 1. P.S. ANTONY, AGED 52, PUTHUSSERY, KATTALAN HOUSE, P.O. POTTA, (F/O DECEASED). 2. ELSY ANTONY, (M/O. DECEASED) AGED 49, W/O. ANTONY, PUTHUSSERY, KATTALAN, P.O.PETTA. 3. BINU ANTONY(BROHTHER) S/O. P.S.ANTONY, AGED 25 PUTHUSSERY, KATTALAN HOUSE, P.O.PETTA. 4. BENNY ANTONY, AGED 20, (BROTHER) S/O. P.S.ANTONY, PUTHUSSERY, KATTALAN HOUSE, P.O.PETTA. 5. BINDU ANTONY, AGED 18 YEARS,(SISTER) D/O. P.S.ANTONY, PUTHUSSERRY, KATTALAN HOUSE, P.O.PETTA. BY ADV. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE ORIENTAL INSURANCE CO. LTD., KALLOOKARAN SHOPPING COMPLEX, 1ST FLOOR, ANGAMALY-683572. 2. A.O.KUNJIMON, S/O. A.V.OUSEPH, ATHIKAKUZHY HOUSE, NAYATHODE.P.O. ANGAMALY, ALUVA, ERNAKULAM DIST. MACA 1090/2009 2 3. T.K.DAIJU, S/O.KUTTAN, THEKKEDATH HOUSE,P.O.POTTA, CHALAKKUDY. 4. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, CHALAKKUDY. ADV. SRI.A.R.GEORGE FOR R1 & R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 1090 OF 2009 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF DECEMBER, 2009. J U D G M E N T Ramachandra Menon, J. The appeal is for enhancement of compensation in respect of the death of the son of appellants 1 and 2 and the brother of the third appellant. 2. An auto rickshaw bearing No. KL-8/D 7812 in which the deceased was travelling at the relevant time and an ambassador car - KL- 7/M 5626 which was coming from the opposite side collided with each other causing fatal injuries to the passenger in the auto rickshaw leading to his death, on 3.12.1999 and the claim preferred by the legal heirs. 3. The auto rickshaw was owned and driven by the third respondent, while the car was owned and driven by the second respondent. Both the vehicles were insured by one and the same Insurance Company, though the policies were issued from different Branches and the Insurers were arrayed as Respondents 1 and 4. 4. The evidence consists of oral testimony of PWs 1 and 2 and MACA 1090/2009 2 Exts.A1 to A9 produced and marked on the side of the claimants. No evidence, either oral or documentary, was adduced from the part of the respondents, except producing and marking a copy of the Insurance Policy as Ext. B1. On conclusion of the trial, the Tribunal, based on materials on record, arrived at a finding that the accident was only because of the rash and negligent driving of the car and hence the claimants were entitled to be compensated by the respondents concerned. With regard to fixation of quantum, it was the case of the claimants, that the deceased was aged 27 years of age and was working as a contract supervisor getting a monthly salary of Rs. 3,250/- which was sought to be proved by producing Ext.A9 salary certificate besides the oral testimony given in this regard. Taking note of the hospitalization for a spell of 16 days, the Tribunal awarded a sum of Rs. 1,600/- towards cost of extra nourishment and wages to attendants, Rs. 2,000/- towards funeral expenses, Rs. 2,500/- towards loss of estate, Rs. 1,500/- towards transportation expenses, Rs. 1,17,073/- towards medical expenses, Rs. 12,000/- towards pain and suffering, and a sum of Rs. 10,000/- towards loss of love and affection. With regard to loss of dependency, the Tribunal, though accepted the monthly income of the deceased as Rs. 3,250/- and deducted 1/3rd towards probable personal expenses of the deceased, reckoning Rs. 2,100/- as monthly contribution to MACA 1090/2009 3 the family, the multiplier was fixed as '10' and the compensation payable under the said head was worked out as Rs. 2,52,000/-. Accordingly, the total compensation payable was fixed as Rs. 3,98,673/- which was directed to be satisfied by the Insurer with interest at the rate of 6% per annum. 5. The claimants have approached this Court by filing this appeal much belatedly, accompanied with a petition seeking to condone the delay of '1323 days' in filing the same. Of course, the said petition is accompanied with an affidavit stating the facts and circumstances leading to such inordinate delay. Even though we are not much satisfied with the explanation offered by the appellants/petitioners, we have condoned the same with much reluctance, on condition that the claimants would not be entitled to get interest to the enhanced compensation payable, if any, in respect of the period 'in lis'. 6. Learned counsel appearing for the appellants submits that the grievance projected by the appellants is with regard to the fixation of proper multiplier. Going by the guidelines given in the second schedule to Section 163A of the Motor Vehicles Act, the proper multiplier ought to have been '13', whereas the Tribunal has reckoned it only as '10'. The deceased was aged 27 years at the time of death and his father was admittedly above 52 years, while the mother was aged 49 years. The law MACA 1090/2009 4 is now well settled in view of the authoritative pronouncement by the Apex Court in T.N. State Transport Corpn. Ltd. v. S. Rajapriya (2005) 6 SCC 236) that the proper multiplier has to be adopted on the basis of the age of the deceased or that of the claimant, whichever is higher. In the said circumstances, taking note of the higher age factor of '49' (that of the mother), when compared with the age of the deceased, we find that the proper multiplier as given in the second schedule is '13'. However, considering the facts and circumstances and weighing the evidence as a whole, particularly in view of the fact that the deceased was only a bachelor and that on his marriage, the contribution to the parents would have been considerably reduced, we find it fit and proper to re-fix the multiplier only as '12'. On re-working the compensation towards loss of dependency, adopting the very same multiplicand (Rs.2,100/- per month) and substituting the multiplier as '12' in the place of '10', we find that the appellants would be entitled to get a compensation of Rs. 2,84,600/- under this head. After giving credit to the sum of Rs. 2,52,000/- already awarded by the Tribunal, the appellants are entitled to get a further sum of Rs. 32,600/- towards balance compensation payable in respect of loss of dependency. It is seen that the Tribunal has awarded only a sum of Rs. 10,000/- towards loss of love and affection. Considering the fact that there MACA 1090/2009 5 were altogether five claimants (parents as well as the brothers and sisters) we find it fit and proper to award a further sum of Rs. 15,000/- under this head as well. 7. The Tribunal has awarded interest only at the rate of 6% per annum. In view of the binding judicial precedents on the point, we re-fix the same as 7% in respect of the amount already awarded by the Tribunal. However, in view of the inordinate delay on the part of the appellants in respect of filing of the present appeal, even though we have condoned the same today, interest on the enhanced compensation now awarded will be payable at the rate of 7% per annum only from today. 8. Learned counsel for the first respondent /Insurance Company made a persuasive attempt contending that the deceased being a bachelor only 50% of the salary could have been reckoned as contribution to the family consisting of his parents and siblings. Reliance is also placed on the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (2009(6) SCC 121). It is true that in respect of the death of bachelor, there is an observation made by the Apex Court in the said decision that contribution shall be taken only to an extent of 50%. It is also made a mention therein that this is not an inflexible rule; simultaneously observing that the contribution may be to such higher MACA 1090/2009 6 extent, if the family is reasonably large consisting of more members. It has also been observed in the said decision that the monthly income to be adopted in such cases also may be of a higher level, taking note of the future prospects by way of addition of increments, promotions and such other circumstances. Thus the salary which was being received by the deceased on the date of the accident could be reckoned as something more, even to an additional extent of 50% in appropriate cases. In the instant case, it is not seen from the Award, whether the Insurance Company was permitted to have the wider defence by granting necessary permission under Section 170 of the Act and no better evidence is available. In any view of the matter, it remains a fact that the claimants were altogether five in number, ie., the parents as well as two brothers and one sister. Still, the monthly income was reckoned only as Rs. 3,250/- and no addition was made in respect of the probable future prospects. Instead of the proper multiplier of '13', we have chosen to take '12', so as to work out the compensation in the present case. Thus striking a balance, we have fixed the enhanced compensation, after evaluating all the facts and circumstances and also the legal aspects involved. As such, we do not intend to disturb the 'multiplicand' adopted by the Tribunal in any manner. MACA 1090/2009 7 9. In the result, the appellants would be entitled to get a balance compensation of Rs. 47,600/- (Forty seven thousand and six hundred) with interest at the rate of 7% per annum from today, besides their eligibility to get the differential portion of interest by 1% in respect of the amount awarded by the Tribunal from the date of petition, till the date of payment. We direct the first respondent Insurance Company to deposit the said amount as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The appeal is thus allowed in part. No order as to costs. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-