IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1019 of 2005()
1. AHAMMED AGED 38 YEARS,
... Petitioner
2. KADEEJA, W/O.AHAMMED, THAIKANDY HOUSE,
Vs
1. THE ORIENTAL INSURANCE CO.LTD.,
... Respondent
For Petitioner :SRI.P.SAMSUDIN
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :04/12/2009
O R D E R
P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ.
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M.A.C.A. No. 1019 OF 2005
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Dated this the 4th December, 2009
J U D G M E N T
P.R. Ramachandra Menon, J:
A minor girol aged 9 years was knocked down on
12.05.2000 at about 6 p.m while walking along the road, by a
jeep owned and driven by the first respondent and insured by
the second respondent, which led to her death occurred on the
next day and in turn the claim preferred by the parents.
2. The first respondent, owner cum driver of the jeep chose
to remain ex parte. The claim was resisted by the second
respondent/Insurer. However, no statutory ground of defence
under Section 149(2) of the M.V. Act is seen raised or
established. No oral evidence was adduced from either side.
The only evidence available before the Tribunal was Ext.A1 (copy
of FIR), Ext.A2 Postmortem certificate and Ext.X1 ( referred to in
paragraph No.5 of the award, but omitted to be shown in the
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Appendix). On the basis of the evidence on record, particularly
when there was no contra evidence, the Tribunal held that the
accident was because of the negligence of the owner-cum- driver
of the vehicle.
3. With regard to fixation of quantum, observing that the
child was aged nine years, only the notional income as
prescribed under the Second Schedule, i.e. 15000/- per annum
was reckoned for the purpose of computation of loss of
dependency. After deducting 1/3rd towards probable personal
expenses, the Tribunal, adopting the multiplier of ’10’, awarded
a sum of Rs.One lakh; besides awarding a sum of Rs.1000/-
towards transportation expense and Rs.2000/- towards ‘funeral
expense’; thus granting a total sum of Rs.1,03,000/-, which was
directed to be satisfied by the second respondent/Insurer with
interest @ 6% per annum. The claimants are before this Court
seeking for enhancement of the compensation.
3. The learned counsel for the appellants submits that the
claimants were not given opportunity to adduce any oral
evidence before the Tribunal and that total miscarriage of justice
M.A.C.A. No. 1019 OF 2005
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has been resulted because of the course pursued by the
Tribunal in this regard. The Counsel submits that the multiplier
applicable in the case of a minor aged 9 years is ’15’ as given in
the Second schedule, whereas the Tribunal has reckoned only
’10’, so as to compute the probable loss of dependency. We find
considerable force in the said submission, since absolutely no
reason has been given by the Tribunal for reducing the multiplier
from ’15’ to ’10’. Considering the age of the claimants/parents,
the multiplier to be adopted is ’17’, which however could not
have been reckoned in view of the law declared by the Apex
Court in T.N. State Transport Corpn. Ltd vs. S. Rajapriaya
and others [(2005)6 SCC 236], holding that proper multiplier
has to be fixed on the basis of the age of the deceased or the
claimants whichever is higher. Thus adopting the proper
multiplier of ’15’ and on re-working the compensation towards
‘loss of dependency’, we find that a sum of Rs.50000/- (Rupees
fifty thousand only)more is liable to be paid to the appellants.
4. It is seen that absolutely no amount has been awarded
by the Tribunal towards ‘loss of love and affection’. We award a
M.A.C.A. No. 1019 OF 2005
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sum of Rs. 10000/- (Rupees ten thousand only) under this head.
Similarly, no amount has been awarded by the Tribunal towards
‘pain and suffering’. The accident was on 12.05.2000 and the
deceased succumbed to the injuries on the next day. We award a
sum of Rs.5000/- (Rupees five thousand only) under this head as
well. A further sum of Rs.1000/- (Rupees one thousand only) is
also awarded towards ‘damage to clothing’, ‘probable medical
expenses’ etc. It is noted that the Tribunal has awarded
interest only at the rate of 6% per annum; which ought to have
been awarded at the rate of 7% per annum in view of the various
binding judicial precedents as to the rate of interest payable.
5. In the result, the appellants are awarded a further sum
of Rs. 66000/- (Rupees sixty six thousand only) as the balance
compensation payable in respect of the death of their child. We
make it clear that the said amount as well as the amount already
awarded by the Tribunal will carry interest at the rate of 7% per
annum. We direct the second respondent/Insurer to satisfy the
said amount as expeditiously as possible, at any rate within a
period of three months from the date of receipt of a copy of the
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judgment.
Appeal is allowed in part. No cost.
P.R. RAMAN,
JUDGE.
P.R. RAMACHANDRA MENON,
JUDGE.
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