Elsamma Thomas and others v. Joshi and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
K. Ramakrishnan
Judgment Date: 2013-11-21
Court Decision / Holding: With the above modification of the impugned award of the Tribunal, the appeal is disposed of. The appellants are entitled to an additional Rs. 75,000 over and above what was awarded, payable with 9% interest from the date of petition; the 4th respondent’s Rs. 50,000 already awarded is considered, and the entire enhanced amount is to be paid to the appellants in equal shares. The minor children’s amounts shall be deposited in a Nationalised Bank till majority, with liberty for the first appellant to withdraw interest accrued for their benefit. The minors’ deposits are to be maintained with interest for their benefit, and two months’ time is granted to deposit the enhanced amount.
Final Disposition: Disposed of with modification of the award.

Parties to the Case

Appellants / Petitioners

ELSAMMA THOMAS
ROSHNI THOMAS
JOSEMON THOMAS (MINOR)

Respondents

JOSHI
MOHANAN PILLAI.K.G
THE MANAGER, THE ORIENTAL INSURANCE COMPANY LTD.
ANNA

Legal Representation & Advocates

Counsels for Petitioners

• Sri Nidhi Balachandran
• Sri T. Jayakrishnan

Counsels for Respondents

• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew

Case Synopsis & Summary

This is a Division Bench of the Kerala High Court in MACA No. 968 of 2010, challenging the Motor Accidents Claims Tribunal, Alappuzha’s award of Rs. 4,15,000 for the death of Thomas in a motor vehicle accident caused by the rash and negligent driving of the vehicle owned by the 2nd respondent and insured with the 3rd respondent. The appellants, the wife and children of the deceased (with the 3rd appellant being the minor Josemon Thomas), seek enhanced compensation. The Tribunal had awarded compensation across heads including pecuniary loss, loss of love and affection, loss of consortium, pain and suffering, ambulance charges and funeral expenses. On appeal, the court notes that the deceased’s income was claimed to be Rs. 4,212 per month (Ext. A8) and that Ext. A10 notes varying earnings, while the Tribunal adopted Rs. 3,000 per month. The court accepts that income variation exists, but relies on the principle in Sarla Varma v. Delhi Transport Corporation to consider future prospects; it determines the appropriate multiplier to be 15 and holds that the loss of dependency amount is not excessive. However, it finds losses for loss of consortium and love and affection to be too low, enhancing them to Rs. 50,000 and Rs. 30,000 respectively, and increases pain and suffering to Rs. 10,000 and estate to Rs. 10,000. An additional Rs. 75,000 is awarded, with 9% interest, payable to appellants, and minor-amounts deposited in a nationalized bank with interest to be used for their benefit. The appeal is disposed of with modification of the Tribunal’s award.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the deceased’s income was Rs.4,212 per month as per Ext.A8 and Ext.A10 shows varied earnings; Tribunal fixed Rs.3,000 monthly; they urged consideration of future prospects and enhancement of the heads of compensation, including loss of consortium and love and affection, as well as for the minor’s interests and for 9% interest on enhanced amounts. They also urged the insurer’s liability for the enhanced compensation and the need to secure the minors’ amount in a bank until majority.

Contentions of Respondents

The respondents argued that the Tribunal’s award was just and proper and should be sustained; the insurer emphasized the adequacy of the impugned award and challenged any unwarranted enhancement, cautioning against speculative future prospects without solid basis.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Varma v. Delhi Transport Corporation	2010(2) KLT 802 (SC)	Positive	Court relies on the Sarla Varma principle to adopt a multiplier of 15 and to consider lack of separate future prospects in calculating dependency loss.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935** **MACA.No. 968 of 2010 ( )** **-------------------------** **AGAINST THE AWARD IN OPMV 210/2003 of MOTOR ACCIDENTS TRIBUNAL ALAPPUZHA DATED 12-11-2008** **-----** ## **APPELLANTS :** - **----------** **1. ELSAMMA THOMAS, MAVUMKAL HOUSE,** - **C.M.C.-XVI, CHERTHALA.** **2. ROSHNI THOMAS, D/O.ELSAMMA THOMAS, MAVUMKAL HOUSE, C.M.C-XVI, CHERTHALA.** **3. JOSEMON THOMAS (MINOR),** - **S/O.ELSAMMA THOMAS, MAVUMKAL HOUSE, C.M.C.XVI,CHERTHALA, REPRESENTED BY MOTHER AND GUARDIAN THE IST APPELLANT.** **BY ADVS.SRI.NIDHI BALACHANDRAN SRI.T.JAYAKRISHNAN** ## **RESPONDENTS :** - **-----------** **1. JOSHI, S/O.THOMAS, PUNNAKKAPPALLI HOUSE, EAST OF MOHAM HOSPITAL EZHUPUNNA PANCHAYAT WARD NO.VII, ERAMALLOOR P.O. CHERTHALA.** **2. MOHANAN PILLAI.K.G,** - **S/O.GOPALAKRISHNAN, KALARIKKAL HOUSE EZHUPUNNA PANCHAYAT WARD NO.X, ERAMALLOOR P.O., CHERTHALA.** ## **3. THE MANAGER,** - **THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE PUTHENPURAKKAL CHAMBER, PALLURUTHY, COCHIN.** **4. ANNA, W/O.LATE OUSEPH, MAVUMKAL HOUSE, C.M.C-XVI (NEW), CHERTHALA P.O. CHERTHALA.** **R3 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------- M.A.C.A. No.968 of 2010 --------------------------------------------------------------Dated this, the 21[st] day of November 2013 ## Judgment ## Ramakrishnan, J. The claimants in O.P.(M.V).No.210/03 on the file of the Motor Accidents Claims Tribunal, Alappuzha, are the appellants herein. The appellants, who are the wife and children of deceased Thomas, filed the application for compensation for the death of Thomas, who died in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the 1st respondent owned by the second respondent and insured with the third respondent. The mother of deceased Thomas was impleaded as additional 4th respondent. After considering the evidence on record, the Tribunal found that the accident occurred on account of the rash and negligent driving of the vehicle by the 1st respondent and awarded a total compensation of Rs.4,15,000 on various heads as follows : MACA No.968/10 2 |**_Head_**|**_Amount ₹_**| |---|---| |**_Pecuniary loss_**|**_384,000.00_**| |**_Loss of love and affection_**|**_10,000.00_**| |**_Loss of consortium_**|**_10,000.00_**| |**_Pain and sufferings_**|**_5,000.00_**| |**_Ambulance charges_**|**_3,000.00_**| |**_Funeral expenses_**|**_3,000.00_**| |**_Total_**|**415,000.00**| Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal, claiming enhanced compensation. 2. We have heard both sides and considered the rival contentions in detail. 3. The learned counsel for the insurance company wants to sustain the award as the total amount awarded is just and proper. 4. The case of the appellants in the claim petition was that the deceased was a headload worker and getting Rs.4,212/per month as income, but the Tribunal has arbitrarily fixed the income as Rs.3,000/- per month. They have produced Ext.A8 certificate issued by the Chairman of the Kerala Headload Workers MACA No.968/10 3 Welfare Board, Cherthala committee, to prove that he was a headload worker and from July to November 2002, he was getting Rs.4,212/-, as his monthly income. Ext.A10 series wage bills show that he was having varied income varying from Rs.1362/- to Rs.3725/-. Under such circumstances, it cannot be said that the Tribunal has faulted in taking the monthly income of the deceased as Rs.3,000/-. But, no future prospects for income has been taken into consideration. Even though the multiplier adopted is higher, as per the decision in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), as the proper multiplier is 15, considering the fact that future prospects have not been taken into consideration, the amount of Rs.3,84,000/- awarded under the head loss of dependency, cannot be said to be excessive and considering the age of the deceased and the age of the dependants, we feel that it is just and proper and so, we are not inclined to interfere with the amount awarded under that head. 5. But, the amounts awarded under the head loss of consortium and love and affection appear to be on the lower side. The first appellant has lost her husband at her young age and she MACA No.968/10 4 will have to live with the two minor children for the remaining period of her life. She has lost the support and companionship of her husband for the rest of her life. Considering these aspects, the amount of Rs.10,000/- awarded under the head loss of consortium appears to be on the lower side and we enhance the same to Rs.50,000/-. Similarly, the children were minors at the time of death of their father. They lost the love and affection and guidance of their father at their tender age. The 4th respondent mother is aged and she has lost the support of her son at her old age. So, considering these aspects, the amount of Rs.10,000 awarded by the Tribunal under the head loss of love and affection appears to be on the lower side and we enhance the same to Rs.30,000/-. The amount awarded under the head pain and sufferings is also on the lower side and we enhance it to Rs..10,000/- No amount has been awarded under the head loss of estate. Normally, a conventional amount will be awarded under that head. We award Rs..10,000/under that head. We are not inclined to enhance the compensation awarded under other heads as they appear to be just and proper. In all, the appellants will be entitled to get an additional MACA No.968/10 5 compensation of Rs..75,000/- over and above what has been awarded by the Tribunal, which, the third respondent insurance company is liable to pay with 9% interest per annum from the date of petition till date of payment. Since the 4th respondent is an aged person and an amount of Rs.50,000/- has been awarded to her by the Tribunal, We feel that the entire additional compensation awarded by this Court can be directed to be paid to the appellants alone. It is ordered accordingly. The appellants shall share the same equally. The amounts due to the minor children shall be deposited in a Nationalised Bank till they attain majority with liberty to the first appellant to withdraw interest accrued for the benefit of the minor children. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. ## **S.SIRI JAGAN, JUDGE** ## **K.RAMAKRISHNAN,JUDGE** sta MACA No.968/10 6 MACA No.968/10 7