IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 472 of 2008()
1. UNITED INDIA INSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. PECHIMUTHU,
... Respondent
2. JAGADAMBAL, W/O.PECHIMUTHU, DO. DO.
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.V.CHITAMBARESH (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :24/02/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.472 of 2008
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Dated this the 24th day of February, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the third
respondent , Insurance Company, in O.P.(MV)No.206/2002 of Motor
Accidents Claims Tribunal, Palakkad challenges the quantum of
compensation awarded by the Tribunal to the claimants who are the
parents and dependents of the deceased Senthilkumar for the loss
caused to them on account of the death of Senthilkumar in a motor
accident.
2. The facts leading to this appeal in brief are these :
Deceased Senthilkumar was aged 23 at the time of accident. He
was unmarried and used to earn Rs. 3,000/- per month as an
autorickshaw driver, according to the claimants. On June 30, 2001 the
deceased was riding his moped TVS 50 bearing Reg.No.TA 41.C/5660
along the Para-Pallathery road. At that time, a lorry bearing
Reg.No.TN-28/1499 came at a high speed and dashed against the
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moped of the deceased. Senthilkumar sustained serious injuries and
died on the spot. According to the claimants, the accident occurred due
to the rash and negligent driving of the offending lorry by second
respondent. The first respondent as the owner, second respondent as
the driver and the third respondent as the insurer of the offending lorry
are liable to pay compensation to the claimants who are the parents and
dependents of the deceased. Claimants claimed a compensation of
Rs.5,76,000/-.
3. Respondents 1 and 2, the owner and the driver of the
offending lorry remained absent and were set ex parte before the
Tribunal. The third respondent, the insurer of the offending vehicle
filed a written statement admitting the policy.
4. PW1 and PW2 were examined and Exts.A1 to A5 were
marked for the claimants. No evidence was adduced by the contesting
third respondent. On an appreciation of evidence, the Tribunal
awarded a compensation of Rs. 3,15,000/-. The Insurance Company
has now come up in appeal challenging the quantum of compensation
awarded by the Tribunal.
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5. The accident is not disputed. The finding of the Tribunal
that the accident occurred due to the rash and negligent driving of the
offending lorry by second respondent is not challenged in this appeal.
Therefore, the only question for consideration is whether the
compensation awarded by the Tribunal is excessive.
6. Heard Sri.Mathews Jacob, the learned senior counesl for
the appellant and Sri.V.Chitambaresh, learned senior counsel for
respondents 1 and 2, the claimants.
7. Sri.Mathews Jacob, the learned senior counsel appearing
for the appellant Insurance Company argued that in assessing the loss
of dependency, the Tribunal adopted a multiplier of 17 which is not
correct, that as the claimants are aged 57 and 49 at the time of the
accident, the proper multiplier should have been 11. There is force in
the above contention. The claimants contended that the deceased as an
auto driver used to earn Rs.3000/- per month. But in the claim petition,
the avocation of the deceased is shown as vegetable vendor. Taking
into consideration of the above fact, the Tribunal took his monthly
income as Rs. 2,000/-. As the deceased was aged 23, the Tribunal took
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a multiplier of 17 and awarded a compensation of Rs. 3,06,000/- for
loss of dependency.
8. But the choice of the multiplier is determined by the age of
the deceased or that of the claimants whichever is higher as held by the
Apex Court in New Indian Assurance Co.Ltd. v. Charlie ( 2005(3)
KLT 227 Supreme Court). In the present case, the parents of the
deceased are the claimants. They are aged 57 and 49 years at the time
of accident. The multiplier shown in Second Schedule to the Motor
Vehicles Act for the age group of 55 to 60 is 8 and that of 45 to 50 is
13. As the deceased was their only son and as second claimant,
mother, is aged only 49, we feel that a multiplier of 13 would be
reasonable in this case.
9. There is another aspect. The Tribunal assessed the monthly
income of the deceased as Rs. 2000/- only. PW2 has supported the
version of PW1 that the deceased was an auto driver which appears to
be true. That being so, the monthly income of the deceased can be
reasonably fixed at Rs. 3,000/-. Out of this 50% has to be deducted
towards personal expenses as the deceased is a bachelor as held by the
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Apex Court in Sarala Varma V.Delhi Transport Corporation and
another ( 2009(6)SCC 121). Thus his monthly contribution to the
claimants can be taken as Rs. 1500/-. Thus calculated, the claimants
are entitled to Rs. 2,34,000/- for loss of dependency ( 1500 x 12 x 13).
10. The counsel appearing for claimants pointed out that the
Tribunal awarded only Rs. 9,500/- for loss of love and affection etc. as
provided under the Second Schedule to the Act. But the Second
Schedule is applicable only if the compensation is claimed under
Section 163A. But in this case, the claimants have claimed
compensation under Section 166 of the Act. That being so, the
claimants are entitled to compensation for loss of love and affection,
loss to the estate, for the pain and suffering endured by the deceased ,
hospital expenses, funeral expenses etc.
11. Therefore, in the present case, taking into consideration the
fact that the deceased is the only son of claimants, a compensation of
Rs. 20,000/- for loss of love and affection would be reasonable. For
the pain and suffering endured by the deceased, we feel that a
compensation of Rs. 10,000/- would be adequate. For loss to the
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estate, in our view a compensation of Rs. 10,000/- would be just and
proper. Towards Funeral expenses and expenses in the hospital, a
compensation of Rs. 5000/- would be adequate.
12. Thus the claimants are found entitled to a compensation of
Rs. 2,79,000/-. The impugned award of the Tribunal is modified to that
effect. They are entitled to interest at the rate of 9% per annum from
the date of petition till realisation and cost. The appellant shall deposit
the amount before the Tribunal within one month from this date. As
the claimants are aged persons, the entire compensation awarded shall
be disbursed to them.
The Appeal is disposed of as found above.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
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