Rukhiya V.K. Vs. the Oriental Insurance Co.Ltd - Court Judgment

SooperKanoon Citationsooperkanoon.com/1089150
CourtKerala High Court
Decided OnSep-23-2013
JudgeHONOURABLE MR.JUSTICE S.SIRI JAGAN
AppellantRukhiya V.K.
RespondentThe Oriental Insurance Co.Ltd
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice s.siri jagan & the honourable mr. justice k.ramakrishnan monday,the23d day of september20131st aswina, 1935 maca.no. 1589 of 2013 () ------------------------- against the award in opmv15202010 of m.a.c.t.,manjeri dated0805-2013 appellant(s)/petitioners: ---------------------------------------------- 1. rukhiya v.k. aged46years w/o.late abdul salam, pulikkalakath house, nannambra kodinhi amsom , p o kodinji, malappuram dist2 suhaib babu aged26years s/o.late abdul salam, pulikkalakath house, nannambra kodinhi amsom, p o kodinji, malappuram dist3 shameela husna aged20years d/o.late abdul salam, pulikkalakath house, nannambra kodinhi amsom, p o kodinji, malappuram dist4 shibin shalu aged9years s/o.late abdul salam(minor)pulikkalakath house nannambra, kodinhi amsom p o, kodinji malappuram dist, rep by his mother and guardian rukhiya(ist appellant) by advs.sri.k.abdul jawad sri.mathew akuzhalanadan smt.syama mohan respondent(s)/3rd respondent: ----------------------------------------------------- the oriental insurance co.ltd., jaseela complex, bypass junction, nilambur road, manjeri. r by sri.george cherian (thiruvalla) this motor accident claims appeal having come up for admission on2309-2013, the court on the same day delivered the following: s.siri jagan & k.ramakrishnan, jj.================== m.a.c.a.no. 1589 of 2013 ================== dated this the 23rd day of september, 2013 judgment s.siri jagan, j.: the claimants in o.p.(m.v).no. 1520/2010 before the motor accidents claims tribunal, manjeri, are the appellants herein. they are the mother and siblings of deceased shameer davood, who died in an accident caused by the negligent driving of a vehicle insured with the respondent. they claimed compensation for the death of shameer davood, in the o.p. the tribunal, after finding negligence on the part of the driver of the vehicle insured with the respondent, awarded compensation under various heads as follows: amount head of claim awarded ` 1 loss of dependency 252,000.00 2 loss of love and affection 10,000.00 3 loss of estate 5,000.00 4 any other heads 4,000.00 total 271,000.00 dissatisfied with the quantum of compensation awarded by the tribunal, the appellants have filed this appeal.2. the first contention of the appellants is that the m.a.c.a.1589/13 - :2. :- notional income fixed by the tribunal is low. in spite of the fact that the appellants have stated that although the deceased was a student in an engineering college, he was earning ` 5,000/- per month from part time work as a cashier in a bakery, the tribunal fixed only a notional income of ` 3000/- per month for the deceased is the contention. the second contention raised is that the multiplier adopted by the tribunal is low. it is settled law that for selecting multiplier, the age of the deceased is deciding factor, in which case, the multiplier ought to have been 18, since the deceased was 21 years old at the time of the accident, going by the decision of the supreme court in sarla verma v. delhi transport corporation, 2009 acj1298(sc) . the tribunal has taken only 14 as the multiplier. the third contention is that the tribunal has not awarded any amounts towards pain and sufferings of the deceased. lastly, it is contended that the compensation for funeral expenses is also on the lower side.3. we have heard the learned standing counsel for the insurance company as well.4. admittedly the deceased was a 21 year old student in an engineering college. the appellants did not adduce any evidence regarding his alleged income. the tribunal fixed a m.a.c.a.1589/13 - :3. :- notional income of ` 3000/-. thereafter, finding that appellants 2 to 4 were not dependent on the deceased, 50% was deducted for personal expenses of the deceased, in view of the fact that only the 1st appellant mother was dependent on the deceased. we are of opinion that if at all the tribunal has erred in the matter of fixing the income of the deceased, the tribunal erred only in favour of the appellants insofar as there is no evidence regarding any income for the deceased, who was only a student. for the same reasons, appellants 2 to 4 cannot be considered as dependants of the deceased as well. therefore, we do not find any merit in the challenge against the fixation of notional income for the deceased by the tribunal.5. however, we find merit in the contention of the appellants that the multiplier should have been on the basis of the age of the deceased. the supreme court has, in the decision in amrit bhanu shali and others v. national insurance co. ltd. and others, 2012 acj2002 held that the multiplier has to be selected based on the age of the deceased and not on the basis of the age of the dependants. the deceased was 21 years old at the time of death. therefore, the multiplier should have been 18. calculated on that basis, the compensation for loss of m.a.c.a.1589/13 - :4. :- dependency would be ` 3,24,000/- ( ` 3000 x 12 x 18/2) instead of ` 2,52,000/-. the difference would be ` 72,000/-. the tribunal has not awarded any compensation for pain and suffering of the deceased. a conventional amount can be awarded for the same. we fix the same as ` 10,000/-. we are not inclined to interfere with the compensation fixed under other heads. consequently, over and above what has been awarded by the tribunal, the appellants would be entitled to additional compensation of ` 82,000/-, which would carry interest at the rate of 9% per annum from the date of claim petition till date of payment. the respondent insurance company is directed to deposit this amount also within two months. with the above modification of the impugned award of the tribunal, this appeal is disposed of. sd/- s.siri jagan, judge sd/- sdk+ k.ramakrishnan, judge ///true copy/// p.a. to judge. m.a.c.a.1589/13 - :5. :-
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY,THE23D DAY OF SEPTEMBER20131ST ASWINA, 1935 MACA.No. 1589 of 2013 () ------------------------- AGAINST THE AWARD IN OPMV15202010 of M.A.C.T.,MANJERI DATED0805-2013 APPELLANT(S)/PETITIONERS: ---------------------------------------------- 1. RUKHIYA V.K. AGED46YEARS W/O.LATE ABDUL SALAM, PULIKKALAKATH HOUSE, NANNAMBRA KODINHI AMSOM , P O KODINJI, MALAPPURAM DIST2 SUHAIB BABU AGED26YEARS S/O.LATE ABDUL SALAM, PULIKKALAKATH HOUSE, NANNAMBRA KODINHI AMSOM, P O KODINJI, MALAPPURAM DIST3 SHAMEELA HUSNA AGED20YEARS D/O.LATE ABDUL SALAM, PULIKKALAKATH HOUSE, NANNAMBRA KODINHI AMSOM, P O KODINJI, MALAPPURAM DIST4 SHIBIN SHALU AGED9YEARS S/O.LATE ABDUL SALAM(MINOR)PULIKKALAKATH HOUSE NANNAMBRA, KODINHI AMSOM P O, KODINJI MALAPPURAM DIST, REP BY HIS MOTHER AND GUARDIAN RUKHIYA(IST APPELLANT) BY ADVS.SRI.K.ABDUL JAWAD SRI.MATHEW AKUZHALANADAN SMT.SYAMA MOHAN RESPONDENT(S)/3RD RESPONDENT: ----------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., JASEELA COMPLEX, BYPASS JUNCTION, NILAMBUR ROAD, MANJERI. R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON2309-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

================== M.A.C.A.No. 1589 of 2013 ================== Dated this the 23rd day of September, 2013

JUDGMENT

S.Siri Jagan, J.: The claimants in O.P.(M.V).No. 1520/2010 before the Motor Accidents Claims Tribunal, Manjeri, are the appellants herein. They are the mother and siblings of deceased Shameer Davood, who died in an accident caused by the negligent driving of a vehicle insured with the respondent. They claimed compensation for the death of Shameer Davood, in the O.P. The Tribunal, after finding negligence on the part of the driver of the vehicle insured with the respondent, awarded compensation under various heads as follows: Amount Head of claim awarded ` 1 Loss of dependency 252,000.00 2 Loss of love and affection 10,000.00 3 Loss of estate 5,000.00 4 Any other heads 4,000.00 Total 271,000.00 Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal.

2. The first contention of the appellants is that the m.a.c.a.1589/13 - :

2. :- notional income fixed by the Tribunal is low. In spite of the fact that the appellants have stated that although the deceased was a student in an engineering college, he was earning ` 5,000/- per month from part time work as a cashier in a bakery, the Tribunal fixed only a notional income of ` 3000/- per month for the deceased is the contention. The second contention raised is that the multiplier adopted by the Tribunal is low. It is settled law that for selecting multiplier, the age of the deceased is deciding factor, in which case, the multiplier ought to have been 18, since the deceased was 21 years old at the time of the accident, going by the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ1298(SC) . The Tribunal has taken only 14 as the multiplier. The third contention is that the Tribunal has not awarded any amounts towards pain and sufferings of the deceased. Lastly, it is contended that the compensation for funeral expenses is also on the lower side.

3. We have heard the learned Standing Counsel for the insurance company as well.

4. Admittedly the deceased was a 21 year old student in an engineering college. The appellants did not adduce any evidence regarding his alleged income. The Tribunal fixed a m.a.c.a.1589/13 - :

3. :- notional income of ` 3000/-. Thereafter, finding that appellants 2 to 4 were not dependent on the deceased, 50% was deducted for personal expenses of the deceased, in view of the fact that only the 1st appellant mother was dependent on the deceased. We are of opinion that if at all the Tribunal has erred in the matter of fixing the income of the deceased, the Tribunal erred only in favour of the appellants insofar as there is no evidence regarding any income for the deceased, who was only a student. For the same reasons, appellants 2 to 4 cannot be considered as dependants of the deceased as well. Therefore, we do not find any merit in the challenge against the fixation of notional income for the deceased by the Tribunal.

5. However, we find merit in the contention of the appellants that the multiplier should have been on the basis of the age of the deceased. The Supreme Court has, in the decision in Amrit Bhanu Shali and others v. National Insurance Co. Ltd. and others, 2012 ACJ2002 held that the multiplier has to be selected based on the age of the deceased and not on the basis of the age of the dependants. The deceased was 21 years old at the time of death. Therefore, the multiplier should have been 18. Calculated on that basis, the compensation for loss of m.a.c.a.1589/13 - :

4. :- dependency would be ` 3,24,000/- ( ` 3000 x 12 x 18/2) instead of ` 2,52,000/-. The difference would be ` 72,000/-. The Tribunal has not awarded any compensation for pain and suffering of the deceased. A conventional amount can be awarded for the same. We fix the same as ` 10,000/-. We are not inclined to interfere with the compensation fixed under other heads. Consequently, over and above what has been awarded by the Tribunal, the appellants would be entitled to additional compensation of ` 82,000/-, which would carry interest at the rate of 9% per annum from the date of claim petition till date of payment. The respondent insurance company is directed to deposit this amount also within two months. With the above modification of the impugned award of the Tribunal, this appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE Sd/- sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge. m.a.c.a.1589/13 - :

5. :-