IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY,THE1T DAY OF SEPTEMBER201510TH BHADRA, 1937 MACA.No. 2237 of 2011 () ------------------------- AGAINST THE AWARD IN OP(MV) 1359/2004 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,THALASSERY DATED2312-2010 APPELLANTS/PETITIONERS: -------------------------------------------------------------------- 1. N.P.MAMMOOTTY S/O.LATE ABU, RAMLA COTTAGE, ANJARAKANDY AMSOM KOLATHUMALA DESOM, P.O.ANJARAKANDY, THALASSERY KANNUR.
2. K.E.N.RAMLA, AGED45YEARS M/O.LATE SHAMSHEER & W/O.N.P.MAMMOOTTY RAMLA COTTAGE, ANJARAKANDY AMSOM, KOLATHUMALA DESOM P.O.ANJARAKANDY, THALASSERY, KANNUR.
3. K.E.N.SHAMSHEELA AGED32YEARS D/O.MAMMOOTTY, RAMLA COTTAGE, ANJARAKANDY AMSOM KOLATHUMALA DESOM, P.O.ANJARAKANDY, THALASSERY KANNUR.
4. K.E.N.NOUSHEER, AGED25YEARS S/O.MAMMOOTTY, STUDENT, RAMLA COTTAGE ANJARAKANDY AMSOM, KOLATHUMALA DESOM, P.O.ANJARAKANDY THALASSERY, KANNUR.
5. K.E.N.SHABEER, AGED23YEARS S/O.MAMMOOTTY, STUDENT, RAMLA COTTAGE ANJARAKANDY AMSOM, KOLATHUMALA DESOM, P.O.ANJARAKANDY THALASSERY, KANNUR.
6. K.E.N.SHIHAJ, AGED22YEARS S/O.MAMMOOTTY, STUDENT, RAMLA COTTAGE ANJARAKANDY AMSOM, KOLATHUMALA DESOM, P.O.ANJARAKANDY THALASSERY, KANNUR. BY ADV. SRI.C.K.SREEJITH MACA.No. 2237 of 2011 () RESPONDENTS/RESPONDENTS: ---------------------------------------------------- 1. NATARAJAN S/O.MARASWAMY,4/61, PASUR ANOOR MUTHALYAR COLONY,AVANTHADHI DESOM, P.O.PASUR ANOOR (VIA) COIMBATORE-641653 TAMILNADU (DRIVER OF LORRY TN39F9039 2. MALLIKA DEVI2130, SEGATHURAI, PALLADAM KADAMBADI.P.O., COIMBATORE DISTRICT, TAMIL NADU PIN-641 105. (OWNER OF THE LORRY TN39F9039 3. M/S.NEW INDIA INSURANCE COMPANY LTD., 11, 19, 20 GOVERNMENT ARTS COLLEGE ROAD COIMBATORE-641 018, TAMIL NADU (INSURER). R3 BY ADV. SRI.ZIYAD RAHMAN(B/O) R BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON0109-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SHG/ T.R. RAMACHANDRAN NAIR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2237 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of September, 2015
Ramachandran Nair, J.
This appeal is filed by the parents and brothers and sisters of the deceased Shamseer who died in a motor vehicle accident. The petitioners are aggrieved by the inadequacy of the compensation granted.
2. The accident occurred on 13.3.2004 at Varapuzha in Ernakulam District. Along with certain others he was travelling in a car bearing registration No.KL-13/K7580and the offending vehicle is a lorry bearing registration No.TN- 39/F9039 Apart from the deceased another occupant also suffered injuries and two claim applications were filed which were jointly tried.
3. The main grievance raised by the learned counsel for the appellants is the one regarding the fixation of monthly income. It is also submitted that the adoption of multiplier is not in tune with the judgment in Sarla Varma M.A.C.A.No.2237 of 2011 -2- v. Delhi Transport Corporation [2010 (2) KLT802(SC). It was claimed that he was working as a Salesman in a company in Sultanate of Oman and he was earning monthly salary of RO.150.000 (Rials Omani One hundred fifty only). Ext.A5 is the document produced in support of the above. Learned counsel for the appellants relied upon various judgments to contend for the position that the document certified by the Embassy is acceptable in evidence. We find force in the said submission also. In Ext.A5 it is certified that the deceased was holding Indian Passport B-1725719 and is working with the concern namely ABO Najat Trading in the capacity of Food Supply Salesman/General and he is drawing a monthly salary of RO150.000.
4. The Tribunal did not accept the document even though the same is attested by the concerned officials of the Embassy of India, Muscat.
5. Learned counsel for the appellants submitted that the said approach was not correct. The Tribunal has taken M.A.C.A.No.2237 of 2011 -3- the monthly income as Rs.3,000/- as a notional income. He was aged 24 years at the time of the accident.
6. We find from Ext.A5 that it has been attested by the Embassy of India, Muscat by a competent authority. The same is therefore acceptable and it will be safe to rely upon the same document. Going by the conversion of Oman RO for the relevant period it was equal to Indian Rs.118.42. Hence the monthly salary which was being earned by him will come to Rs.17,700/-. But as regards the permanent nature of the employment there is no evidence. Therefore nothing could be added towards it for the future prospects of the deceased. Going by the visa issued as seen from the entry in the passport he obtained visa on 29.10.2003 which was to expire on 28.10.2005. Whether the employment was eligible to be renewed also is not clear as there is no evidence on this aspect. Apart from the same as regards the expenditure towards his food, accommodation etc. we will have to reduce a certain percentage. Going by the judgment in Sarla Varma's case (cited supra) as he was a M.A.C.A.No.2237 of 2011 -4- bachelor 50% will have to be reduced from Rs.17,700/- towards personal expenses also.
7. Learned counsel for the Insurance Company submitted that in view of the fact that other expenses will also be there like the one pointed out earlier, if at all this court adopts the monthly income as disclosed in Ext.A5 a further reduction is required to balance various aspects. We find force in the same. As no evidence is available whether he was having a free accommodation and food was also being provided by the employer, we will be justified in reducing a reasonable amount further from the amount arrived at. Therefore we fix Rs.6,000/- as the monthly remittance he would have been contributing to the appellants. The multiplier adopted by the Tribunal is also not correct as the Tribunal has gone by the average age of the parents. In the judgment in Sarla Varma's case (cited supra) it has been held that age of the deceased will have to be reckoned for fixing the multiplier. Even though the learned counsel for the Insurance Company submitted that M.A.C.A.No.2237 of 2011 -5- the average age of the parents will have to be reckoned we cannot agree. A Division Bench of this court in Annamkutty v. United India Insurance Company Ltd. [2013 (4) KLT160 held that the age of the deceased that should be taken into consideration and not that of the dependants. Even though the learned counsel relied upon the judgment in Manissery Mariyumma & Ors. v. A. Govinda & Ors. [2013 (3) KHC479 it was on a review petition filed by the parties and in the light of the judgment in Annamkutty v. United India Insurance Company Ltd. [2013 (4) KLT160 and the judgment in Sarla Varma's case (cited supra) we prefer to follow the same. Therefore the multiplier as far as this case will be 18.
8. For loss of love and affection Rs.10,000- has been granted by the Tribunal and for funeral expenses what is granted by the Tribunal is only Rs.4,000/-. The appellant will be entitled for a higher amount on these items. We fix an amount of Rs.15,000/- towards funeral expenses and Rs.1 lakh towards loss of love and affection, since the M.A.C.A.No.2237 of 2011 -6- appellants, including the parents have lost their son at the young age and brothers and sisters have lost the love and care of their deceased brother. Therefore, we re-fix the compensation in the following manner: Head of claim Amount re-fixed in Rs. Loss of dependency 6000x12x18 1296000 Pain and suffering 10000 Loss of love and affection 100000 Transportation 5000 Loss of estate 35000 Funeral expenses 15000 Total 14,61,000 (Rupees Fourteen lakhs sixty one thousand only) The enhanced compensation will carry interest at the rate of 9% per annum from the date of petition till realisation. There will be a direction to the Insurance Company to deposit the amount of compensation with interest, less the amount already deposited, before the Tribunal within a period of three months. On such deposit being made, the M.A.C.A.No.2237 of 2011 -7- appellants will be entitled for the release of the amount. 30% of the enhanced compensation with interest thereon will be shared by the parents and the remaining 40% with interest thereon will be shared equally by the other claimants. The appeal is accordingly allowed. There will be no order as to costs in the appeal. Sd/- T.R. RAMACHANDRAN NAIR JUDGE Sd/- K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/