Aleyamma Luckose and others v. K.V. Sukumaran and others (MACA No. 42 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 31ST DAY OF OCTOBER 2017/119TH KARTHIKA, 1939** ## **MACA.No. 42 of 2009 ( )** **-----------------------AGAINST THE AWARD IN OPMV 457/2004 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 30-04-2008** ## **APPELLANT(S)/PETITIONERS 1 TO 3:** - **------------** **1. ALEYAMMA LUCKOSE, W/O.LATE LUCKOSE, MAPPILAPARAMBIL, PADINJAREKKARA POST, VAIKOM.** ## **2. CHINNU LUCKOSE (MINOR)** **3. ANNU LUCKOSE (MINOR)** **[MINORS 2 AND 3 REPRESENTED BY GUARDIAN, THEIR MOTHER, APPELLANT NO.1.]** **BY ADVS.SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI** ## **RESPONDENT(S)/RESPONDENTS & 4TH PETITIONER:** **--------------** ## **1. K.V.SUKUMARAN, S/O.GOVINDAN, KOROTHVALAPPIL HOUSE, KOOVERI POST,THALIPARAMBU.** ## **2. JOSEPH.P.J., S/O.JOSEPH,** **PLAPARAMBIL, KARIPAL POST,, PERUMPADAVE, KANNUR DISTRICT.** **3. THE NEW INDIA ASSURANCE CO.LTD. 1ST FLOOR, PAULSON BUILDING, S.KALAMASSERY, KOCHI.** *** 4. ALEYKUTTY CHACKO, W/O.CHACKO, MAPPILAPARAMBIL, KEEZHOOR POST, VAIKOM. [DELETED]** **[RESPONDENT NO.4 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANTS VIDE ORDER DATED 2.4.2013 IN IA NO.837/2013 IN MACA 42/2009]** **R1 & 2 BY ADV. SRI.K.N.ABHILASH R1 & 2 BY ADV. SMT.R.LEELA R1 & 2 BY ADV. SRI.SUNIL NAIR PALAKKAT R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.K. ABDUL REHIM & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.42 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of October, 2017** ## **J U D G M E N T** ## **Abdul Rehim, J.** The appellants herein are petitioners (claimants) 1 to 3 in OP(MV) 457/2004 on the files of the Additional Motor Accidents Claims Tribunal, Kottayam. The 4[th] respondent herein, who was subsequently deleted form the party array, was the 4[th] claimant before the Tribunal. It is submitted that 4[th] respondent died during pendency of this appeal. The appellants are the wife and two minor children of a person named Luckose, who died in a motor vehicle accident which occurred on 18.12.2003. The accident occurred when a bus hit against the motorcycle on which he was riding. He succumbed to the injuries sustained, on the date of the accident itself. The deceased was aged 40 years at the time of death and he was working as a Telephone Mechanic in Bharath Sanchar Nigam Limited (BSNL). The Tribunal awarded a total compensation of Rs.7,44,408/-. The appellants are approaching this court being not satisfied M.A.C.A. No.42 of 2009 2 with the quantum of compensation awarded. 2. Heard; learned counsel for the appellants and learned Standing Counsel appearing for the 3[rd] respondent Insurance Company. There is no dispute in this appeal regarding the findings on the aspects of the negligence and on the liability of the 3[rd] respondent Insurance Company to pay the compensation. 3. Learned counsel for the appellants contended that the Tribunal went highly erred in not adopting the entire salary of the deceased, as proved through Ext.A7 series certificates, as the multiplicand. It is further contended that the Tribunal had also failed in considering any addition towards future prospects. According to the appellants the Tribunal had reduced the multiplier to 13 instead of the correct multiplier of 15, which ought to have been adopted on the basis of the age of the deceased. Further contention is that the amounts awarded under the heads of funeral expenses, loss of consortium, loss of love and affection etc are highly inadequate. 4. The said arguments were opposed by the learned M.A.C.A. No.42 of 2009 3 Standing Counsel appearing for the 3[rd] respondent, contending that reasonable amounts have already been awarded under different heads. 5. From Ext.A7 series certificates it is proved that the deceased was working as a Telephone Mechanic in BSNL and he was a regular employee in the service of the said establishment. It is mentioned that he was drawing a monthly pay and allowance of Rs.8,105/- as on December 2003 and that the payment made in the said month, till 18.12.2003, was Rs.4,677/-. The Tribunal failed in properly appreciating Ext.A7 series certificates and erroneously held that the take home salary of the deceased was only Rs.4,677/-. From Ext.A7 itself it is convincingly clear that the salary including pay and allowance which the deceased was drawing at the time of his death was a sum of Rs.8,105/-. Therefore the Tribunal ought to have adopted the said amount as earnings of the deceased at the time of death. From the evidence it is established that he was aged 40 years at the time of his death. Therefore he was left with service of 19½ years, had he been alive. It now remains M.A.C.A. No.42 of 2009 4 settled through precedents of the hon'ble apex court that, in the case of persons earning fixed salary, the Tribunal should consider additions towards future prospects. Considering the fact that the deceased was aged 40 years, we are inclined to add 30% of the above said amount towards future prospects. We find no reason to reduce the multiplier from 15 to 13. It is settled through the decision of the hon'ble supreme court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** that the multiplier need to be fixed based on the age of the deceased. Calculated on the basis of the above findings, the compensation for loss of dependency need to be refixed at Rs.14,22,427.50 (8105 + 30% x 12 x 15 x ¾). The said amount is fixed after deducting 1/3[rd] towards personal expenses, because there were four dependants at the time when the deceased succumbed to the injuries sustained. After deducting the amount of Rs.4,86,408/- awarded by the Tribunal towards loss of dependency, the appellants will be entitled for an enhancement of Rs.9,36,019.5, which we round off to Rs.9,36,000/-. M.A.C.A. No.42 of 2009 5 6. We take note of the fact that the Tribunal had awarded only an amount of Rs.25,000/- towards loss of consortium. Going by the settled precedents of the hon'ble apex court, we are inclined to enhance the compensation by a further sum of Rs.75,000/-. We are of the considered opinion that the amount of Rs.7,000/- awarded towards funeral expenses is on the lower side. We award a further sum of Rs.13,000/- on that count. We do not think that any enhancement is warranted under other heads. Thus we hold that the total enhancement for which the appellants are entitled is Rs.10,24,000/-. 7. Learned standing counsel for the 3[rd] respondent insurance company contended that, the award of Rs.1,00,000/- towards loss of estate given by the Tribunal is excessive. It is further pointed out that the Tribunal went erred in allowing compensation under the head of loss of expectation of life, when separate compensation was already granted under the heads of loss of dependency and loss of estate. We find merit in the above said contentions. Even though the 3[rd] respondent has not filed any appeal M.A.C.A. No.42 of 2009 6 challenging the award; nor any cross objection in this appeal, we are inclined to interfere with the award on the above said two heads. Taking into consideration of the principle of fixing 'just compensation' and also invoking powers vested on this court under Order 41 Rule 33 of C.P.C., we are inclined to reduce the compensation of Rs.50,000/- awarded towards loss of expectation of life. So also we are inclined to reduce the award of Rs.1,00,000/- to Rs.10,000/-, under the head of loss of estate. Thus the total compensation awarded need to be reduced by a sum of Rs.1,40,000/-. After setting off the said amount from the enhancement allowed, the net amount of enhancement for which the appellants are entitled is fixed as Rs.8,84,000/- [1024000 -140000]. 8. In the result, the appeal is allowed in part. Total compensation awarded by the Tribunal is enhanced by a further sum of Rs.8,84,000/- (Rupees eight lakhs eighty four thousand only). The said amount will carry interest at the same rate as awarded by the Tribunal, from the date of claim petition till realisation. The Tribunal shall deduct M.A.C.A. No.42 of 2009 7 balance court fee if any due, from the amount of enhancement granted through this judgment. The enhanced amount shall be apportioned between the appellants 1 to 3 at the ratio 50:25:25. Since it is reported that the 4[th] respondent (mother of the deceased) is not alive we are not awarding any amount out of the enhancement to the said respondent. The 3[rd] respondent insurance company shall deposit the amount within a period of two months from the date of receipt of a copy of this judgment. Needless to observe that, on such deposit the appellants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. There will be no order as to costs. Sd/Sd/- ## **C.K. ABDUL REHIM, JUDGE** ## **K.P. JYOTHINDRANATH, JUDGE** //True copy// P.A. TO JUDGE shg/