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United India Insurance Company … vs Pechimuthu on 24 February, 2010

Kerala High Court
United India Insurance Company … vs Pechimuthu on 24 February, 2010
       

  

  

 
 
  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

MACA.No.472/08 Page numbers

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.

MACA.No.472/08 Page numbers

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

MACA.No.472/08 Page numbers

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

MACA.No.472/08 Page numbers

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

MACA.No.472/08 Page numbers

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.

MACA.No.472/08    Page numbers

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