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2015 DIGILAW 827 (KER)

K. Ramakrishnapillai v. New India Assurance Company Limited

2015-07-06

P.N.RAVINDRAN

body2015
JUDGMENT : P.N. Ravindran. J. 1. M.A.C.A.No.487 of 2012 arise from the award passed by the Motor Accidents Claims Tribunal, Perumbavoor on 28.10.2011 in O.P.(M.V)No.1671 of 2006. M.A.C.A.No.547 of 2012 arises from the award passed by the Motor Accidents Claims Tribunal, Perumbavoor on 28.10.2011 in O.P.(M.V)No.1672 of 2006. The appellants in M.A.C.A.No.487 of 2012 are the claimants in O.P.(M.V)No.1671 of 2006 and the appellants in M.A.C.A.No.547 of 2012 are the claimants in O.P.(M.V)No.1672 of 2006. By a common award passed on 28.10.2011, the Motor Accidents Claims Tribunal awarded the sum of Rs.3,84,750/- as compensation to both sets of claimants and directed the third respondent insurer or deposit the said sum together with interest at 8% per annum from the date of petition till the date of deposit along with proportionate costs. The claimants have, dissatisfied with the quantum of compensation awarded by the Tribunal, field these appeals. 2. The appellants in M.A.C.A.No.487 of 2012 are the father mother and sister of late Anish Sudhakaran, a fourth semester B.Tech degree student of SCMS College of Engineering and Technology, Karukkutty. The appellants in M.A.C.A.No.547 of 2012 are the father, mother and sister respectively of late Yadu Krishnan yet another fourth semester B.Tech student of the above mentioned college. Late Anish Sudhakaran and late Yadu Krishnan were travelling in the motor car being No. KL 07 AJ 0983 along with their class mate Avilesh Jain, another fourth semester B.Tech degree student of the very same collage. The car in which they were travelling fell into a canal on account of the rash and negligent driving by the driver of the car and in that accident all the three students drowned to death. The driver of the car Mohammed Sadiq Nasar who was also a student of the very same engineering college also died in that accident. The motor car in which the aforesaid four students were travelling belonged herein, the second respondent in the claim petition, was the insurer of the motor car. The parents of the driver of the car were joined as additional respondents 3 and 4 in the claim petitions. The owner of the care as also the parents of the deceased driver were absent and they were set ex-parte. 3. The parents of the driver of the car were joined as additional respondents 3 and 4 in the claim petitions. The owner of the care as also the parents of the deceased driver were absent and they were set ex-parte. 3. The respondent insurer alone entered appearance and filed a written statement wherein the main contention raised was that the passengers in the motor car were not covered by the policy of insurance issued by it. Before the Motor Accident Claims Tribunal no oral evidence was adduced on either side. However on the side of the claimants Exts. A1 to A20 were produced marked. The Motor Accident Claims Tribunal considered the rival contentions and held that the accident took place on account of the rash and negligent driving of the motor car wherein the deceased students were undergoing the B.Tech degree course, the Tribunal fixed their notional income at Rs. 4,000/- and taking into account the age of the mother, awarded the sum of Rs.3, 12,000/- as compensation under the head loss of dependency. The Tribunal also awarded the sum of Rs.2,500/- towards transport to hospital, Rs.2,500/- towards funeral expenses, Rs.250/- towards damage to clothing, Rs.5,000/- towards pain and suffering, Rs.2,500/- towards loss to the estate, Rs.1,000/- towards loss of love and affection and Rs. 50,000/- towards loss of future prospects, in all aggregation to Rs.3,84,750/-. The claimants have , as stated earlier field these appeals, dissatisfied with the quantum of compensation awarded by the Tribunal. 4. We heard Smt. Anupama Jhony, learned counsel appearing for the appellants, Sri.Viju Thomas, learned counsel for the sole respondent in M.A.C.A.Nos.487 of 2012 and Sri. P Jayasankar, learned counsel for the sole respondent in M.A.C.A.Nos.547 of 2012. We have also gone through the pleadings and the materials on record. The accident in the instant case took place on 10.03.2006. The deceased students were undergoing the fourth semester B.Tech degree course in SCMS College of Engineering and Technology, Karukutty. Both of them were aged 19 years. The Tribunal has awarded to the claimants in the two claim petitions only the sum of Rs.2,500/- towards funeral expenses. The Apex Court has in Rajesh v. Rajbir Singh 2013 (3) KLT 89 (SC) held that in the absence of evidence to the contrary for higher expenses, at least an amount of Rs.25,000/- should be awarded as compensation under the head funeral expence. The Apex Court has in Rajesh v. Rajbir Singh 2013 (3) KLT 89 (SC) held that in the absence of evidence to the contrary for higher expenses, at least an amount of Rs.25,000/- should be awarded as compensation under the head funeral expence. The accident in Rajesh v. Rajbir Singh (supra) took place on 05.10.2007. Having regard to the principle laid down by the Apex Court in the aforesaid decision, we enhance the compensation awarded under the head funeral expenses in each of the claim petitions to Rs.25,000/- Consequently we award an additional compensation of Rs.22,500/- in each of the claim petitions as compensation towards funeral expenses. 5. The Apex Court has in Amrit Bhanu Shali v. National Insurance Co. Ltd (2012) 11 SCC 738 awarded to the parents of a 26 years only man, the sum of Rs. 1,00,000/- as compensation under the head loss of love and affection. The Motor Accidents Claims Tribunal has in the instant case awarded only the sum of Rs. 10,000/- under that head. In the light of the binding decision of the Apex Court, we award an additional compensation of Rs.90,000/- under the head loss of love and affection to the victims of the accident. 6. A division Bench of the High Court of Andra Pradesh has in B. Ramulamma and others v. Venkatesh Bus Union and another, 2011 ACJ 1702 awarded compensation to the parent of a final year B.Tech degree student taking the monthly income as Rs. 12,000/-. The Division Bench held, having regard to the various materials referred to by it that the minimum income of an engineering graduate can be fixed as Rs. 12,000/- per month. Enhanced compensation was accordingly awarded on that basis applying the multiplier of 15, having regard to the decision of the Apex Court in Sarla Verma & Others v. Delhi Transport Corporation & Another (2009) 6 SCC 121 . In coming to the conclusion that the minimum income of an engineering graduate can be fixed as Rs.12,000/- per month, the Division Bench of the Andra Pardesh High Court had taken into account the notification issued by the Andra Pradesh Public Service Commission for appointment to the post of Assistant Executive Engineer in various departments (Entry Level Post) the scale of pay of which was Rs. 9385 - 21550 as also the fact that the basic pay of an engineering graduate in Central Government service is Rs.15,600/- per nesem plus grade pay which ranges between Rs.5,000/- Rs.6,000/- per mensem. The relevant portions of the judgment in B. Ramulamma and others v. Venkatesh Bus Union of the motor vehicle. The Special Leave Petition was dismissed by the Apex Court by order passed on 16.07.2010. The Apex Court held that the enhancement granted by the Division Bench of the Andra Pradesh High Court is based on sound reasons and does not call for any interference. 8. The scales of pay of Government employees in the State of Kerala were revised with effect from 01.07.2009 by G.O.(P).No.85/2011/Fin. Dated 26.02.2011 issued pursuant to the recommendations of the 9th pay revision commission. As per the said Government order, the scale of pay of Assistant Engineer in the Public Works Department which was Rs. 12250 – 19800 was enhanced Rs. 21240 – 37004 with effect from 01.07.2009. The victims involved in the instant case were fourth semester B.Tech degree students. The accident in the instance took place on 10.03.2006. In the ordinary course they would have completed their course of study only by the end of June 2008. In such circumstances, we are of the opinion that this court will be perfectly justified in awarding compensation for loss of dependency taking the monthly income of the deceased students as Rs.12,000/- as was done by the Andra Pradesh High Court in B. Ramulamma and others v. Venkatesh Bus Union (supra). The victims in these cases were aged 19 years. In the light of the decision of the Apex Court in Sarla Verma and Others v. Delhi Transport Corporation and Another and another (supra) are extracted below: “51. Thus in view of the present salaries being earned by the computer engineers, there cannot be any doubt to say that the deceased would have earned minimum Rs.12,000/- to Rs. 15,000/- per month. It has to be seen that nowadays Class IV employees are also getting minimum Rs.7,000/- to Rs. 10,000/- per month depending upon their service. The Junior assistants are also getting Rs.12,000/- to Rs. 15,000/- per month. 15,000/- per month. It has to be seen that nowadays Class IV employees are also getting minimum Rs.7,000/- to Rs. 10,000/- per month depending upon their service. The Junior assistants are also getting Rs.12,000/- to Rs. 15,000/- per month. Therefore, considering the normal scale being earned by the government employees and also the minimum wage scales fixed to the technical persons, we are of the view that the minimum salary of a technical person, who is holding a bachelor degree in computers or electronics or mechanical, can be taken as Rs.12,000/- per month. Therefore, the income of the graduate in engineering, i.e., B.Tech., cannot be fixed less that Rs.12,000/- per month, otherwise it amounts to neglecting the ground reality. Similarly, those who have completed M.Tech, M.C.A., M.B.A., the income of such persons can be fixed little higher, i.e., at Rs.15,000/- per month. This will take care of the additional income which they would have earned in course of their service. 52. In view of the above discussion, we are of the considered view that the minimum income of B.E. graduate can be fixed at Rs.12,000/- per month”. 7. The correctness of the decision of the Andra Pradesh High Court in B. Ramulamma and others v. Venkatesh Bus Union (supra) was challenged before the Apex Court by the insurer [ (2009) 6 SCC 121 ] the multiplier to be adopted is 18. Though the learned counsel for the appellants contended relying on the decision of the Apex Court in Civil Appeal No.347 of 2014 (Kanhsingh v. Tukaram, 2015 ACJ 594 ) which was decided on 13.02.2015 that the multiplier has to be based on the age of the parents, we are not persuaded to accept the said submission. A three Judge Becnh of the Apex Court has in Munna Lal Jain and Others v. Vipin Kumar Sharma and Others, JT 2015 (5) SCC 1 which was decided on 15.05.2015 held in categorical terms that the multiplier has to be applied based on the division of the Apex Court Sarla Verma and Others v. Delhi Transport Corporation and Another (supra). Going by the principles laid down by the Apex Court in Sarla Verma and Others v. Delhi Transport Corporation and Another [supra] as victims in the instant case were both aged 19 years and were in the age group of 15-20, the multiplier to be adopted is 18. Going by the principles laid down by the Apex Court in Sarla Verma and Others v. Delhi Transport Corporation and Another [supra] as victims in the instant case were both aged 19 years and were in the age group of 15-20, the multiplier to be adopted is 18. As both the victims were bachelors, 50% of the income thus computed will have to be deducted towards their personal expenses. This computed, the loss of dependency would be Rs.6,00 x 12 x 18 = Rs.12,96,000/-. The Motor Accidents Claims Tribunal has in the instant cases awarded only the sum of Rs.3,12,000/- as compensation for loss of dependency. We accordingly award an additional compensation for loss of dependency over the compensation awarded by the Tribunal. Though the learned counsel appearing for the appellants submitted that there has to be an addition of 50% of the income for the purpose of computing future prospects, we are of the opinion that addition can only be to the actual income of the deceased and that principle cannot be applied to a case where, as in the case on hand, for the purpose of computing the loss of dependency, notional income is taken as the basis. We accordingly hold that the appellants in both cases are entitled to an additional compensation of Rs.9,84,000/- + Rs.22,500/- + Rs.90,000/- = Rs.10,96,500/-. The respondent insurer in each of these appeals is directed to deposit the said sum together with interest at 9% per annum form the date of petition till the date of deposit, in the Tribunal within two months from today. Upon such deposit being made, the amount deposited shall be released in equal shares to the paratns of the victims. No costs.