IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 MACA.No. 164 of 2010() ---------------------- OPMV.62/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT: 3RD RESPONDENT IN OP(MV) NO.62/06 ----------------------------------------------- ICICI LOMBORD GENERAL INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER(LEGAL),Vth FLOOR, KANNAN KORY ESTATE,SHANMUGHAM ROAD,MARINE DRIVE, COCHIN-31. BY ADV. SRI.LAL GEORGE SRI.R.AJITH KUMAR (128/84) SMT.ANN SUSAN GEORGE RESPONDENT(S): CLAIMANTS AND THE RESPONDENTS IN OP(MV) NO.62/06 ------------------------------------------------------------------------------------- 1. GEETHA, W/O.RAJEEVAN, AGED 30 YEARS, RESIDING AT VATTAKKADI(H),MEMUNDA(P.O), VATAKARA,PIN 673 104. 2. ANJU,D/O.RAJEEVAN, AGED 9 YEARS, (MINOR), REPRESENTED BY MOTHER AND GUARDIAN GEETHA, W/O.RAJEEVAN, AGED 30 YEARS, RESIDING AT VATTAKKADI(H),MEMUNDA(P.O), VATAKARA 673 104. 3. ATHUL,S/O.RAJEEVAN, AGED 5 YEARS, (MINOR), REPRESENTED BY MOTHER AND GUARDIAN GEETHA, W/O.RAJEEVAN, AGED 30 YEARS, RESIDING AT VATTAKKADI(H),MEMUNDA(P.O), VATAKARA 673 104. 4. MATHU, W/O.BAPPU, AGED 75 YEARS, RESIDING AT VATTAKKANDI(H), MEMUNDA(PO),VATAKARA-6 73 104. 5. ABDUL KHADER,S/O.MOIDU.A.K., AGED NOT KNOWN, SARAS(H), PUNNOL(PO), THALASSERY, KANNUR-670 102. 6. MOHAMMED MEHAROOF, S/O. MUHAMMAD, AGED 45 YEARS, SUHARA MANZIL,PUNNOL(PO), THALASSERY-670102. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- C.M.Application No.183 OF 2010 & M.A.C.A.No.164 OF 2010 ----------------------------------------------------- DATED THIS THE 21st DAY OF JANUARY, 2010 O R D E R/ J U D G M E N T Basant, J. We have heard the learned counsel for the appellant on merits, for admission. We are proceeding to dispose of the appeal straightaway. In these circumstances, we are satisfied that a lenient view can be taken and the delay can be condoned without waiting for issue and return of notice to the respondents. Petition allowed. Delay condoned. M.A.C.A.NO.164/09 2. Insurer is the appellant. Insurer claims to be aggrieved by the compensation awarded to the claimants under the impugned award. It was a case of death. The accident took place on 5.11.2005. 30 year old widow, minor children aged nine years and five years and aged mother are the dependents/claimants. Deceased was a heavy vehicle driver (lorry), aged 34 years. Death was instantaneous. The Tribunal considering all the relevant circumstances awarded an amount of Rs.7,08,000/- along with interest at the rate of 7.5% p.a. as per M.A.C.A.NO.164/2010 -2- the details shown below: Funeral expenses : Rs.2,000/- Transportation expenses : Rs. 1,000/- Loss of love and affection : Rs.20,000/- Loss of consortium : Rs. 5,000/- Loss of dependency (Rs.5,000x12x2/3x17) : Rs.6,80,000/- -------------------- Total : Rs.7,08,000/- ======== 3. The appellant/insurer claims to be aggrieved by the impugned award. What is the grievance? The learned counsel for the appellant only contends that the multiplicand adopted by the Tribunal at Rs.5,000/- per mensem is too high and the same is not justified. The learned counsel for the appellant argues that though PW2 has tendered evidence that the deceased was an employee of his and he was having paid a monthly salary of Rs.6,000/-, the court below erred in readily swallowing that version. The oral evidence of PW2 should not have been accepted and even the finding that the deceased was getting a lesser amount of Rs.5,000/- per mensem is not at all justified, argues the learned counsel. M.A.C.A.NO.164/2010 -3- 4. It is not disputed that the deceased was a person duly licensed to drive heavy vehicles (transport lorries). He was holding a badge also, it is accepted. The evidence of PW2 was of course there. The court below did not think it proper to accept the evidence of PW2 wholly and readily. However, the court took the view that Rs.5,000/- per mensem can be reckoned as the absolutely reasonable income, considering the nature of employment of the deceased. 5. In addition to Exhibit A7 and the oral evidence of PW2, we note that there are certain indisputable circumstances. The deceased was the head of a family consisting of four dependents. They were wife aged 30 years, minor children aged nine years, five years and mother 75 years. That family unit was depending on him for survival. He was duly licensed to drive a heavy transport lorry. The presumption of prudence permitted under the Second Schedule to the Motor Vehicles Act in a claim under Section 163A even in 1994 is that for a non-earning person also Rs.1,250/- can safely be assumed to be the monthly earnings. The passage of time has to be taken into reckoning. M.A.C.A.NO.164/2010 -4- The undisputed fact that the deceased was employed as a heavy vehicle driver has to be borne in mind. In any view of the matter, we find the assumption made about the monthly income to be absolutely reasonable. At any rate, the same does not warrant appellate interference. The accident had taken place on 5.11.2005, it deserves to be noted. 6. We do note that 17 has been reckoned as the multiplier, whereas the decision in Sarla Verma v. DTC (2009 (6) SCC 121) suggests that for a person of the age group of 31 -35 years, 16 may be the appropriate multiplier. But, we must at the same time note that no provision has been made for further increase in prospects which has to be done as per the decision in Sarla(supra). We must also note that 1/3rd has been deducted as the personal expenses of the deceased, whereas Sarla(Supra) suggests that for a family exceeding three persons, 1/4th would be the appropriate deduction for personal expenses. So reckoned, we note that at the end of the day, the amount of Rs.6,80,000/- awarded under the head of loss of dependency does appear to us to be absolutely fair, reasonable and just and the same does not warrant interference. We do further note that M.A.C.A.NO.164/2010 -5- though Sarla(Supra) suggests that a conventional amount upto Rs.10,000/- can be awarded under the head of loss of estate, no amount has been awarded under this head to the claimants in respect of the death of a young 34 year old deceased. Even assuming that the amount awarded under the head of loss of love and affection is on the higher side, this circumstance – non- award of any amount under the head of loss of estate neutralises the effect of the alleged excess amount paid under the head of loss of love and affection. 7. In short, we are not persuaded to agree that there is any reason to justify or warrant invocation of the appellate jurisdiction to interfere with the impugned award at the instance of the insurer. 8. This M.A.C.A. is in these circumstances dismissed in limine. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn