Baby Girija v. Thameem R.C. and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** ## **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** ## **MACA NO. 853 OF 2011** ## **AGAINST THE AWARD DATED 06.03.2010 IN OPMV 1725/2004 OF** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS:** - 1 BABY GIRIJA , W/O LATE M.K. VIJAYAN "VIJAYAGIRI", KOMASSERY PARAMBA,, KUNNAMANGALAM, KOZHIKODE DISTRICT. - 2 ARUNDHADHI D/O.LATE M.K.VIJAYAN,, DO. DO. - 3 ASWATHI D/O.LATE M.K.VIJAYAN, DO. DO. - 4 DEVADATH VIJAY S/O.LATE M.K.VIJAYAN, DO. DO., (APPELLANTS 2 TO 4 ARE MINORS AND REPRESENTED, BY THEIR MOTHER IST APPELLANT). BY ADV SRI.V.KRISHNA MENON ## **RESPONDENTS:** - 1 THAMEEM R.C., S/O ABDURAHIMAN AEROTH CHALIL HOUSE, P.O.KODUVALLY,, KOZHIKODE DISTRICT. - 2 THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD., SHAFEER COMPLEX, 6/975D, OPP.YMCA,, KANNUR ROAD, KOZHIKODE. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 853-2011 2** ## **JUDGMENT** **Dated this the 4[th] day of January, 2022** The appellants were the petitioners in O.P (MV) No.1725/2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short ‘Act’) claiming compensation on account of the death of Vijayan (deceased) – the husband of the first appellant and the father of appellants 2 to 4. It was their case that, on 30.07.2004, while the deceased was riding his motorcycle bearing registration No.KL - 11 M 7870 from Karanthur to the Medical College, he was hit by a jeep bearing registration No. KL-10-DJ 8444 (jeep), which was ## **MACA NO. 853-2011 3** driven and owned by the first respondent. The accident occurred due to the negligence of the first respondent. The second respondent was the insurer of the jeep. The deceased was aged 44 years at the time of the accident/death. The deceased was working as a Senior Instructor in the Industrial Training Institute, Kozhikode and was drawing a salary of Rs.9595/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.16,53,752/- from the respondents, which claim was limited to Rs.15,00,000/-. 3. The first respondent did not contest the proceeding and was set ex-parte. 4. The second respondent had filed a written statement admitting that the jeep had a valid insurance coverage. Nevertheless, the second respondent disputed the age, income and occupation of the deceased. It was also contended that the accident occurred due to the negligence of the deceased. 5. The appellants had produced and marked Exhibits A1 to A5 in evidence. The respondents did not ## **MACA NO. 853-2011 4** let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by its award dated 27.02.2008 allowed the claim petition, by holding that the appellants are entitled to compensation of Rs.11,30,080/with interest and cost, but deducted 50% of the compensation amount on the finding that the deceased was guilty for contributory negligence to the extent of 50%. 7. Aggrieved by the award passed by the Tribunal, the appellants filed MACA No.2921/2008 before this Court. This Court by judgment dated 18.12.2009, allowed the appeal and remanded the matter to the Tribunal for fresh consideration. 8. The Tribunal, after re-appreciating the pleadings and materials on record, set aside the finding of the contributory negligence and held that the appellants are entitled to a compensation of Rs.11,30,080/- as originally awarded by the Tribunal in the award dated 27.02.2008. 9. Dissatisfied with the quantum of compensation ## **MACA NO. 853-2011 5** awarded by the Tribunal, the petitioners are again in appeal. 10. Heard; Sri. V. Krishna Menon the learned counsel appearing for the appellants/petitioners and Sri. Lal K. Joseph, the learned counsel appearing for the second respondent /insurer. 11. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. In view of the findings of this Court in MACA No.2921/2008, which has resulted in the impugned award, it has become final and conclusive that it was the first respondent, who was negligent in causing the accident. As the second respondent has admitted the insurance policy and its liability, it is the second respondent who is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 13. The appellants had claimed that the deceased ## **MACA NO. 853-2011 6** was aged 44 years and was working as a Senior Instructor in the Industrial Training Institute, Kozhikode. In order to substantiate their assertion, they had produced Exhibit A3 salary certificate issued by the Senior Superintendent of the Industrial Training Institute, Kozhikode. As per the said certificate, the deceased drew a monthly salary of Rs.11,910/- as on 30.07.2004. Since the salary certificate was accepted and marked in evidence, without any demur or protest from the respondent, I accept the salary of the deceased as certified in Exhibit A3. Nevertheless, in view of the law laid down in **Kalpanaraj & Others v. Tamil Naud State Transport Corporation** [(2015) 2 SCC 764], the income tax and professional tax has to be deducted from the above amount to arrive at the net annual income of the deceased. 14. Going by the income tax slab for the assessment year 2004-2005, 10% of the salary above the exemption limit of 50,000/- has to be deducted towards income tax and professional tax of the deceased. Accordingly, I ## **MACA NO. 853-2011 7** deduct an amount of Rs.10,000/- from the gross annual income of the deceased i.e, from Rs.1,42,920/-. Therefore, the net monthly salary of the deceased is fixed at Rs.11,076/-. 15. The Tribunal has adopted the split multiplier method on the ground that the deceased was aged 44 years at the time of his death and had only 11 more years of service. 16. In **Puttamma v. K.L. Narayana Reddy and another** [2014(1) KLT 738] and **N. Jayasree and others v. Cholamandalam M/s General Insurance Company Ltd.** [ 2021 SCC Online 967], the Honourable Supreme Court has categorically held that without cogent reasons the split multiplier method shall not be adopted by the Tribunal/Courts. 17. In the instant case, the deceased was only 44 years at the time of the accident/death. He had 11 more years of service. I do not find any cogent reason to adopt the split multiplier method in the instant case. Therefore, I accept the income of the deceased at Rs. ## **MACA NO. 853-2011 8** 11,076/- per month and adopt the multiplier of ‘14’ as laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], as the deceased was born on 01.04.1960 as reflected in Exhibit A5. ## **Personal living expenses of the deceased** 18. It is proved by Exhibit A4 Family membership certificate, that the appellants are the widow and children of the deceased. They are four in number. In the light of the law laid down in **Sarala Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects.** 19. Following the ratio in **Sarala Verma** (Supra) and **Pranay Sethi** (supra) **,** and considering the fact that deceased was aged 44 years at the time of the accident/death, the appellants are entitled to future prospects at 30%, since the deceased was permanently employed. **MACA NO. 853-2011 9** ## **Loss due to dependency** 20. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.11076/-, the multiplier at ‘14’, future prospects at 30% and deducting one fourth of the compensation towards personal living expense of the deceased, I award the appellants an amount of Rs.18,14,248/- towards 'loss of dependency', instead of Rs.10,48,080/- awarded by the Tribunal. ## **Conventional heads of compensation** 21. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. It is also observed that the said amount has to be enhanced by 10% in every three years. 22. In **N. Jayasree (supra)** and **Rashmitha Biswal and others v. Divisional Manager National** **MACA NO. 853-2011 10** **Insurance Company Ltd and another** [Live Law 2021 SC 717], the Honourable Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is only to be interpreted and inferred that the escalation of 10% is awarded after every three years from the pronouncement of the judgment in Pranay sethi, which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled to compensation under the conventional heads at Rs.16,500/-, 16,500/-, and 44,000/- respectively. Accordingly, I award the appellants a further amount of Rs.14,500/- under the heads ‘funeral expenses’, Rs.16,500/- under the head ‘loss of estate’ and a further amount of Rs.1,66,000/under the head ‘loss of consortium’ . ## **Pain and sufferings** 23. The Tribunal has awarded an amount of Rs.5000/- under the head ‘pain and sufferings’. In view ## **MACA NO. 853-2011 11** of the law laid down in **Sarala Verma** (Supra), the appellants are not entitled to compensation for pain and sufferings in view of the instantaneous death of the deceased. Therefore, I set aside the amount awarded under the said head. 24. With respect to the amount of Rs.1000/- awarded under the head transportation expenses, I find the same to be reasonable and just. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation<br>expenses|1000|1000| |3|Funeral expenses|2000|16500| |4|Loss of estate|0|16500| ## **MACA NO. 853-2011 12** ||||| |---|---|---|---| |5|Loss of<br>consortium|10000|1,76,000| |6|Pain and<br>sufferings|5000|0| |8|Loss due to<br>dependency|11,12,080|18,14,248| ||Total|**11,30,080**|**20,24,248**| 26. Even though the appellants had claimed only an amount of Rs.15,00,000/- as compensation, following ratio in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded the appellants future prospects as well as compensation under the conventional heads. Therefore, I have awarded them more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.8,94,168/-** ## **MACA NO. 853-2011 13** with interest at the rate of 7.5% per annum from the date of petition till the date of realisation, after deducting interest for a period of 58 days as ordered by this Court on 26.11.2021 in C.M.Application No.2/2011, and proportionate cost. The second respondent/insurer is ordered to deposit the enhanced compensation with interest and proportionate cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall, after deducting the liability of the appellants, if any, disburse the compensation amount to the appellants in the ratio of 25:25:25:25 and in accordance with law. Sd/- rmm/04.01.2022 **C.S.DIAS**