Beena Jose and others v Ratheesh Abraham and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939** **MACA.NO. 3080 OF 2014** **--------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.341/2012 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, KOTTAYAM DATED 05-08-2014** **----------------------** **APPELLANT(S)/PETITIONERS : (PETITIONERS 1 TO 4 IN O.P.(M.V.) NO.341 OF 2012) ------------------------------------------------** - **1 BEENA JOSE,** **PULLUKALAYIL, CHAMAKKALA P.O., KOTHANALLOOR VIA, ETTUMANOOR.** - **2 GLADSON JOSE,** **D/O.BEENA JOSE, MINOR, REPRESENTED BY MOTHER, THE FIRST APPELLANT AS NEXT FRIEND.** - **3 GLADDY P.JOSE** **MINOR, REPRESENTED BY MOTHER, FIRST APPELLANT, AS NEXT FRIEND.** - **4 GLADYS P. JOSE** **MINOR, REPRESENTED BY MOTHER, FIRST APPELLANT, AS NEXT FRIEND.** **BY ADV.SRI.M.RAMASWAMY PILLAI** **RESPONDENT(S)/RESPONDENTS (RESPONDENTS 1 TO 3 AND PETITIONERS 5 AND 6 IN O.P.(M.V.) NO.341/2012 :** **-----------------------------** **1. RATHEESH ABRAHAM,** **46/8/54, PANAMCHICKAL, MALAYATTOOR, KALADY, ERNAKULAM (OWNER) 683 574.** **2. JUBIN JOHNY** **NERPPAYAYIL HOUSE, MALAYATTOOR P.O, ERNAKULAM (DRIVER) 683 574.** ## **MACA.NO. 3080 OF 2014 -2--------------------** **3. NATIONAL INSURANCE CO.LTD** **REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM 686 001.** **4. MATHAI, S/O.CHANDY, PULLUKALAYIL, CHAMAKKALA P.O, KOTHANALLOOR VIA, ETTUMANOOR 686 631.** ## **5. THRESSIAMMA MATHAI,** **W/O.MATHAI, PULLUKALAYIL, CHAMAKKALA P.O., KOTHANALLOOR VIA, ETTUMANOOR 686 631.** **R3 BY ADVS. SRI.LAL GEORGE** **SMT.P.A.MENISHA BY SRI.M.A.GEORGE R4 & R5 BY ADV. SRI.P.C.HARIDAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.3080 of 2014 ---------------------------------Dated this the 3[rd] day of January, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.341 of 2012 of the Additional Motor Accidents Claims Tribunal-II, Kottayam by the Legal representatives of the petitioners 1 to 4 in the above claim petition. Father and mother of the deceased were impleaded as additional respondents 4 and 5. The husband of the 1[st] appellant died on 29.10.2011 at 4.00 p.m. at Kurruppanthara and the learned tribunal awarded an amount of Rs.11,86,500/- (Rupees eleven lakh eighty six thousand and five hundred only) with 8.5% interest per annum from the date of petition till realisation with proportionate cost as compensation. Being dissatisfied with the award amount, the wife and children of the deceased preferred this appeal. 2. Learned counsel appearing for the appellant contended that the deceased was aged 39 years at the time of accident. He was a supervisor in a construction M.A.C.A. No.3080 of 2014 2 company and was getting a salary of Rs.12,000/- per month, but the learned tribunal took only Rs.5,000/- as his monthly income for calculating compensation for dependency. The above reduction of the income by the tribunal resulted in a heavy loss to the appellant. 3. Apex Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** held that; 24. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was selfemployed or was on a fixed salary (without provision for ## M.A.C.A. No.3080 of 2014 3 annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. In the above case, the Apex Court considered its earlier decisions in **General Manager, Kerala State Road Transport Corporation** v **Susamma Thomas [1994 (1) KLT 67(SC)], U.P. State Road Transport Corporation v. Trilok Chandra [1996 (2) KLT 218 (SC)], New India Assurance Co. Ltd. v. Charlie [2005 (3) KLT 227 (SC)]** etc. 4. The deceased was 39 years of age therefore the multiplier is 15 in view of the decision in **Sarla Verma's** case. The insurer has no dispute with regard to the multiplier. The deceased was employed in Chandy's Construction Company and was getting a salary of Rs.12,000/- per month. He produced Ext.A4 salary certificate before the tribunal but the employer of the deceased was not examined. In the absence of non examination of the employer, the learned tribunal took Rs.5,000/- as his monthly income. The additional ## M.A.C.A. No.3080 of 2014 4 appellants 2 to 4 are minors. Considering his future prospects, Rs.10,000/- is just amount for calculating compensation. Learned tribunal awarded the following amounts as compensation. Transport to hospital Rs.3,000/-, Damage to clothing & articles Rs.1,000/-, Funeral expenses Rs.25,000/-, Pain and suffering Rs.5,000/-, Loss of dependency Rs.10,12,500/-, Loss of estate Rs.10,000/-, Loss of consortium of the 1[st] petitioner Rs.1,00,000/-, Loss of paternal love, affection and guidance of the petitioners 2 to 4- Rs.30,000/-. The total compensation awarded was Rs.11,86,500/-. 5. In view of the decision in **Sarla Verma's** case, 50% of the amount is taken for his future prospects. Therefore the total amount is Rs.15,000/-, of which 1/4[th] has to be deducted. Hence, the annual loss of dependancy comes to Rs.11,250/- (Rs.15,000/1/4=3,750) (Rs.15,000Rs.3,750=Rs.11,250/-). The multiplier is 15. Accordingly, the appellants are entitled to get Rs.20,25,000/(Rs.11,250x12x15) for loss of dependancy. The tribunal ## M.A.C.A. No.3080 of 2014 5 awarded an amount of Rs.10,12,500/- on that head. Hence the balance comes to Rs.10,12,500/(Rs.20,25,000-Rs.10,12,500/-). Learned counsel appearing for the appellant submitted that the tribunal awarded an amount of Rs.25,000/- (Rupees twenty five thousand only) for funeral expenses, Rs.10,000/- (Rupees ten thousand only) for loss of estate and an amount of Rs.1,00,000/(Rupees one lakh only) for loss of consortium, which is excess and has to be deducted in view of the decision of the Apex Court in **National Insurance Company Limited** v. **Pranay Sethi 2017 (4) KLT 662 (SC)** . 6. The figures for loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively, in Pranay Sethi (Supra), in which paragraph 54 reads as follows: As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs.25,000/towards funeral expenses, Rs.1,00,000/- loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though, Rajesh refers to Santhosh Devi, it does not seem to follow the same. The conventional and traditional ## M.A.C.A. No.3080 of 2014 6 heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads. ## 7. In view of the above decision, the amounts awarded for Funeral expenses, Loss of estate and Loss of consortium are modified as follows: ## M.A.C.A. No.3080 of 2014 7 Funeral expenses Rs.15,000/-, Loss of consortium Rs.40,000/- and Loss of estate Rs.15,000/-. The total is Rs.70,000/-. The learned tribunal awarded a total amount of Rs.1,35,000/- on the above three heads. Hence, an amount of Rs.65,000/- (Rs.1,35,000-Rs.70,000/-) has to be deducted from that amount. Accordingly, an amount of Rs.65,000/- also has to be deducted from Rs.10,12,500/-. The balance is Rs.9,47,500/- [Rs.10,12,500-Rs.65,000]. Accordingly, the appellants are entitled to get an additional amount of Rs.9,47,500/- (Rupees Nine lakh forty seven thousand five hundred only) with 8.5% interest per annum from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest per annum from the date of petition. ## Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge M.A.C.A. No.3080 of 2014 8