High Court Kerala High Court

Ahammed Aged 38 Years vs The Oriental Insurance Co.Ltd on 4 December, 2009

Kerala High Court
Ahammed Aged 38 Years vs The Oriental Insurance Co.Ltd on 4 December, 2009
       

  

  

 
 
  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.
             ................................................................................
                       M.A.C.A. No. 1019 OF 2005
              .........................................................................
                    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

M.A.C.A. No. 1019 OF 2005

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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

M.A.C.A. No. 1019 OF 2005

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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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