Allowed

Xavier and Another v. D.Anil Kumar and Others

Kerala HC28 Oct 2013MACA/1840/2008

Case brief

AI extract

What is this about?

In a motor accident claims appeal, the High Court enhanced compensation for loss of dependency. It directed that the multiplier be based on the deceased's age (23 years) and applied a one-half deduction for personal expenses since the parents were the sole claimants, awarding an additional Rs. 40,000.

What did the court decide?

Additional compensation of Rs. 40,000 with 9% interest granted for loss of dependency.

Xavier and Another Vs D.Anil Kumar and Others — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN &

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935

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MACA.No. 1840 of 2008

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[AGAINST THE AWARD DATED 24-11-2007 IN O.P.(M.V).1929/2000 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM]

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APPELLANTS/CLAIMANTS:

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1. XAVIER,S/O.CHEEKU, AGED 52 YEARS, APPAPARAMBIL HOUSE,

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KUNDANOOR, MARADU P.O., ERNAKULAM.

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2. MARY,W/O.XAVIER, AGED 50 YEARS, APPAPARAMBIL HOUSE, KUNDANOOR, MARADU P.O.

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BY ADVS.SRI.T.R.RAJAN, SRI.T.K.DEVARAJAN.

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RESPONDENTS:

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1. D.ANIL KUMAR, S/O.DAMODARAN, ARIKKATTIL HOUSE, KODAKARA, TRICHUR.

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2. DR.ANDREWS, ASSISTANT PROFESSOR,, MEDICINE, MEDICAL COLLEGE, VELAPAYA P.O, TRICHUR.

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3. SREE VALSAN, S/O.KOCHUNARAYANAN, KURIKKAT HOUSE, MARADU, ERNAKULAM.

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4. UNITED INDIA INSURANCE COMPANY LTD TRICHUR BRANCH.

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R4 BY ADV. SRI.A.R.GEORGE.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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----------------------------------------------------------------M.A.C.A. No.1840 of 2008

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Dated this the 28^th day of October, 2013

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J U D G M E N T

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K. Ramakrishnan, J

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Claimants in O.P.(M.V.).No.1929/2000 on the

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file of the Additional Motor Accidents Claims Tribunal, Ernakulam are the appellants herein. The appellants are the parents of deceased Joseph @Joshy, who filed the application for compensation for the death of their son, who died in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the first respondent, owned and possessed by respondents 2 and 3 and insured with the 4^th respondent. After considering the evidence on record, the tribunal found that, the accident occurred due to the rash and negligent driving of the vehicle by the driver and awarded a total compensation of 2,07,000/- on various heads as follows:₹

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M.A.C.A. No.1840 of 2008

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Sl. No.	Head of claim	Amount awarded₹
1	Loss of dependency	1,76,000
2	Pain and suffering	7, 500
3	Loss of estate	2, 500
4	Funeral expenses	5, 000
5	Love and affection	15, 000
6	Transport	1, 000
	Total	2,32,488

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Dissatisfied with the quantum of compensation awarded, the appellants have come before this court with the above appeal.

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We have heard the learned counsel for the appellants and counsel for the insurance company.

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Counsel for the appellants submitted that the deceased was aged only 23 years and a mason by profession and getting 4,940/- as his income and they₹ have produced a certificate issued by the employer as Ext.A11. But the tribunal has discarded this document and taken the monthly income as only 2,000/- per₹ month, which is palpably low. The multiplier taken is not correct. The multiplier ought to have been taken on the basis of the age of the deceased and not on the basis of

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M.A.C.A. No.1840 of 2008

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the age of the parents. The compensation amounts awarded under all heads are palpably low and they are entitled to get enhancement on all heads.

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On the other hand, the counsel for the insurance company submitted that as per the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC) , the deduction would have been one half and not 1/3^rd . The deceased was a bachelor and the parents are the only claimants. So, the total compensation awarded is just and proper and no interference is called for at the hands of this court.

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We have considered the rival contentions

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of both parties in detail.

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The case of the appellants was that the deceased was a mason by profession and getting 4,940/-₹ per month. They have relied on Ext.A11 certificate alleged to have been given by his employer, but he was not examined to prove the same. So under the

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M.A.C.A. No.1840 of 2008

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circumstances, the tribunal was justified in not relying on Ext.A11 to prove the income of the deceased. In the absence of any convincing evidence, the court below has to do some guess work to assess the monthly income of the deceased. On that basis, the tribunal has assessed the monthly income of the deceased as 2,000/- per month,₹ which cannot be said to be low in the year 2000. We are not inclined to enhance the monthly income fixed by the tribunal, as it appears to be just and proper.

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There is some force in the submission

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made by the counsel for the appellants that, the tribunal was not justified in taking the age of the parents to fix the multiplier. In the decision reported in 2012 ACJ 2002 Amrit Bhanu Shali and others v. National Insurance

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Co. Ltd., and others , and followed by this court, in the decision reported in 2013 (4) KLT 160 Annamkutty v. United India Insurance Co. Ltd, it has been held that it is the age of the deceased and not the age of the parents that has to be taken for the purpose of selecting

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M.A.C.A. No.1840 of 2008

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the multiplier. So the tribunal ought to have been taken the age of the deceased for selecting the multiplier. As per Sarla Verma(supra), the correct multiplier will be 18 for the age group of 23, as the deceased was at the time of his death. There is some force in the submission made by the counsel for the insurance company that since the deceased being a bachelor and parents are the only claimants, the tribunal ought to have deducted half instead of 1/3^rd for the personal expenses of the deceased, as has been held in the decision reported in Sarla Verma v. Delhi Transport Corporation(supra). If a re-calculation is made on that basis, the appellants will be entitled to get an amount of ₹ 2,16,000/-(2,000x12x18x1/2) instead of 1,76,000/-₹

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awarded by the tribunal, under the head loss of dependency, we award that amount under that head. The appellants are not entitled to get enhancement under other heads, as the amounts awarded under other heads are just and proper. In all, the appellants will be entitled

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M.A.C.A. No.1840 of 2008

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to get additional compensation of 40,000/-, over and₹ above what has been awarded by the tribunal, which the 4^th respondent insurance company is liable to pay with 9% interest per annum from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well.

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With the above modification of the impugned award of the tribunal, the appeal is disposed of.

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Sd/S. Siri Jagan, Judge

Sd/-

// True Copy //

P.A. to Judge