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2016 Supreme(Ker) 808

IN THE HIGH COURT OF KERALA
P.R. RAMACHANDRA MENON, ANIL K. NARENDRAN, JJ.
NEW INDIA ASSURANCE COMPANY LTD. - Appellant
Versus
VIJAYAN AND OTHERS - Respondent
M.A.C.A. No. 2582 of 2015
Decided on : 14-01-2016

Advocates Appeared:
For the Appellant : K.K.M. Sheriff, A.A. Ziyad Rahman and Lal K. Joseph.
For the Respondent: George Varghese.

Headnote:

Motor Vehicles Act 1988 - Sections 166 & 163A - Accident - Compensation Granted - Award - Seeing enhancement of compensation - Held, Contention by counsel for appellant, that living with serious injuries is extremely difficult and hence a higher extent of compensation may be justified in such cases - To some extent we agree with said proposition in so far as in case of a person who is having serious injuries and is supposed to live long, there may be various instances, such as added pain and sufferings, loss of amenities and enjoyment in life, necessity to engage a permanent attendant if at all - Compensation for death definitely stands on a higher pedestal than injuries, though a case involving injuries may attract compensation under some other relevant heads - Appeal allowed

JUDGMENT :

P.R. RAMACHANDRA MENON, J.

1. The course pursued by the Tribunal in granting a total compensation of Rs. 5,14,250/- in respect of the demise of a minor boy aged 13 years is sought to be challenged by the insurance company, contending that the multiplier taken by the Tribunal is on the higher side and that deduction towards the probable personal expenses has been made only to an extent of 1/3rd, which, according to the company, should have been 50%, as it is claimed by the parents and the sibling. The sequence of events narrated in the appeal reveals that the accident was on 26/08/2004. The minor boy was proceeding along the road when he was knocked down by an autorickshaw bearing No. KL.04.G.3423 owned, driven and insured by respondents 1 to 3 before the Tribunal, causing fatal injuries. Despite the treatment availed for several days, his life could not be saved and he succumbed to the injuries on 02/09/2004 bidding farewell to this world. This was sought to be compensated by filing the claim petition by the parents and the minor sister.

2. The claim was contested by the insurance company with reference to the quantum of compensation payable and negligence. No violation of any statutory/policy condition was pointed out or established. The evidence adduced before the Tribunal consists of the oral testimony of PW1 (mother of the deceased) and the documents produced and marked as Exts. A1 to A8, besides a copy of the policy produced as Ext. B1 on the part of the respondents. After considering the facts and figures, the Tribunal fixed negligence solely on the part of the driver of the autorickshaw and proceeded to work out the compensation. Awarding amounts under different heads, total compensation payable was fixed as Rs. 5,14,250/-, which was directed to be satisfied with interest @ 9% per annum from the date of petition, till realisation. This is sought to be intercepted by the insurance company, by way of the present appeal.

3. The learned counsel for the insurance company/appellant submits that the grievance is mainly 2 fold, insofar as the Tribunal has reckoned 20' as the multiplier in the case of a boy aged 13 years, which according to them should have been 15. Similarly, it is stated that only 1/3rd has been deducted from the notional monthly income towards the personal expenses, which should have been 50% as mentioned hereinbefore.

4. Heard the learned counsel appearing for the claimant as well as the learned counsel appearing for the Insurer.

5. On going through the pleadings and proceedings, it is seen that the Tribunal has awarded amounts mainly in respect of loss of life by reckoning the notional income as Rs. 3,000/- and adopting the multiplier of 20', of course after deducting 1/3rd towards the personal expenses, thus arriving the figure as Rs. 4.8 lakhs. It is also seen from the detailed discussion made by the Tribunal in paragraph 9 of the award that the course pursued by the Tribunal is sought to be justified with reference to the law declared by the Apex Court in Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited , 2013 KHC 4670 : 2013 (3) KLJ 815 : (2014) 14 SCC 396 : AIR 2014 SC 736 and celebrated decision in Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, 2009 KHC 4634 : 2010 (2) KLT 802 : (2009) 6 SCC 121 : AIR 2009 SC 3104 : (2009) 2 SCC (Cri) 1002 : 2009 (78) AIC 153 : 2009 (162) DLT 278 : 2009 (6) SCALE 129 : 2010 (1) Guj LR 17 : 2009 (4) MPLJ 96 : 2009 (5) Mah LJ 775.

6. The contention raised by the appellant/company is that Mallikarjun's case is not liable to be applied in the instant case insofar as it was a case involving injuries and not a question of death. Similarly, it is stated with reference to the multiplier, that nowhere in Sarla Verma's case, has the Supreme Court mentioned that the multiplier to be followed shall be 20'. We have gone through these decisions as well. In Mallikarjun's case, it was made clear by the Apex Court, that in

























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