E.V. Thomas and others v. Salamamma Chacko and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKOse
A.V. Ramakrishna Pillai
Judgment Date: 2012-07-30
Court Decision / Holding: The appeal is allowed and the impugned award shall stand modified as above.
Final Disposition: Appeal allowed; award modified as per the modified calculations and additions outlined by the court.

Parties to the Case

Appellants / Petitioners

E.V. THOMAS
ROSakUTTY
BABU THOMAS
MRS. LEENA THOMAS

Respondents

MRS. SALAMMA CHACKO
BIJI KURIAN
THE ORIENTAL INSURANCE CO.LTD.
LISSY THOMAS

Legal Representation & Advocates

Counsels for Petitioners

• SRI.VIJU ABRAHAM
• SRI.JOY C. PAUL

Counsels for Respondents

• SRI.MATHEWS JACOB
• SRI.P.JACOB MATHEW
• SRI.ALBERT V.JOHN

Case Synopsis & Summary

This Kerala High Court judgment arises from MACA No. 705 of 2004 (D), challenging an award of Rs 2,86,400 as compensation by the Motor Accidents Claims Tribunal, Pala, in O.P.(M.V). No. 646 of 1997 for a road-traffic death on 5-6-1997. The appellants, comprising the deceased's aged parents and siblings, sought higher compensation for loss of dependency, contending the deceased, a 26-year-old businessman running an electrical shop in Kottayam, earned over Rs 60,000 per year. The Tribunal fixed annual income at Rs 60,080 and, applying a two-thirds deduction for expenses, calculated a smaller dependency amount. The appellants argued for incorporating future prospects and a higher multiplier, but the court found no convincing evidence of business closure and thus did not award prospects. Relying on the Supreme Court’s decision in Sarla Varma v. Delhi Transport Corporation, the court held the correct multiplier for the mother’s age (50) to be 13, and recalculated dependency to Rs 3,90,520. The court also awarded an additional Rs 1,33,120 to reflect the shortfall in dependency, Rs 10,000 for pain and suffering, Rs 5,000 for loss of estate, Rs 3,000 for funeral expenses, and Rs 20,000 for loss of love and affection. Interest on the enhanced amount was reduced from 9% to 7.5% per annum. The appeal is allowed and the award modified accordingly.

Legal Doctrines & Maxims

Sarla Varma v. Delhi Transport Corporation — multiplier principle for loss of dependency; reliance on this decision to fix multiplier (13) based on the deceased’s age group and the parent’s age.
Deduction of 1/2 of the annual income to account for personal expenses in calculating dependency (standard approach from the same line of cases).

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the compensation for loss of dependency was inadequate. They argued the deceased, a 26-year-old businessman running an electrical shop in Kottayam, earned over Rs 60,000 per year. The Tribunal fixed the annual income at Rs 60,080 and applied a two-thirds deduction for expenses, resulting in a lower dependency figure. They urged including future prospects in the business and aligning the multiplier with the deceased’s age, asserting evidence suggested ongoing business. They sought higher awards for pain and suffering, loss of estate, funeral expenses, and love and affection, and questioned the Tribunal’s interest rate (9%).

Contentions of Respondents

The document presents the appellants’ submissions in detail; the respondents’ submissions are not elaborated, but the court notes the Tribunal’s income figure was not challenged in a cross-objection and the primary focus is on applying the multiplier from Sarla Varma, adjusting the dependency calculation, and considering modest enhancements for other heads. The respondents’ legal representation is listed for R3, indicating defense through the insurer and related party.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Varma v. Delhi Transport Corporation	2010(2) KLT 802 SC	Positive	Used to determine the multiplier for the dependency calculation, affirming the appropriate multiplier (13) for the mother’s age.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 30TH DAY OF JULY 2012/8TH SRAVANA 1934** **MACA.No. 705 of 2004 (D) -----------------------------------[AGAINST THE AWARD DTD. 28/11/2003 IN O.P.(M.V).NO.646/1997 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA]** **...................** ## **APPELLANT/PETITIONERS 1 TO 3 & 5:** **-------------------------------------------------------** **1. E.V. THOMAS, S/O. VARKEY, INCHIPARAMBIL HOUSE, KOODALLOOR P.O, KIDANGOOR VILLAGE, MEENACHIL TALUK.** **2. ROSAKUTTY, W/O. E.V. THOMAS, INCHIPARAMBIL HOUSE, KOODALLOOR P.O.** **3. BABU THOMAS, S/O. E.V. THOMAS, INCHIPARAMBIL HOUSE, KOODALLOOR P.O.** **4. MRS. LEENA THOMAS, W/O. GEORGE T.L., TEETHU HOUSE, PAMPADY P.O.** **BY ADVS.SRI.VIJU ABRAHAM, SRI.JOY C. PAUL.** ## **RESPONDENTS/RESPONDENTS & 4TH PETITIONER:** **---------------------------------------------------------------------------** **1. MRS. SALAMMA CHACKO, KOORKAKALAYIL HOUSE, CHINGAVANAM P.O., KOTTAYAM.** **2. BIJI KURIAN, S/O. KURIAN, NADUVIEDAM HOUSE, CHINGAVANAM P.O, NATTAMOM VILLAGE.** **3. THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM.** **M.A.C.A. NO.705/2004-D:** **4. LISSY THOMAS, D/O. E.V. THOMAS, INCHIPARAMBIL HOUSE, KOODALLOOR P.O, KIDANGOOR VILLAGE, MEENACHIL TALUK.** **R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADVS. SRI.P.JACOB MATHEW, SRI.ALBERT V.JOHN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** ------------------------------------------------------------------MACA. No. 705 of 2004 ----------------------------------------------Dated this the 30[th] day of July, 2012 ## **J U D G M E N T** ## **Ramakrishna Pillai, J.** The appellants are the aged parents and siblings of one 26 year old unmarried businessman by name George who met with his death on account of the injuries sustained by him in a road traffic accident occurred on 5-6-1997. Allegedly while the deceased was riding his motorcycle he was hit down by a bus coming from the opposite direction. Against the claim of `7 lakhs the learned Tribunal awarded a sum of `2,86,400/- as compensation together with interest at the rate of 9% per annum attributing negligence against the second respondent who was driving the bus. As the third respondent Insurance Company admitted the policy of the offending vehicle they were saddled with the liability of paying the compensation. In this appeal appellants are challenging the adequacy of the compensation awarded by the learned Tribunal. MACA. No. 705/04 -2- 2. We have heard the learned counsel for the appellant and the learned senior counsel for the third respondent Insurance Company. The impugned award was also perused. 3. The main grievance voiced against the award by the appellants is that they were not awarded adequate compensation for loss of dependency. It was submitted by the learned counsel for the appellant that the deceased was running an electrical shop at Kottayam and he was earning more than `60,000/- per year. For computing the compensation for loss of dependency the learned Tribunal adopted the yearly income of the deceased at `60,080/-. However, the learned Tribunal deducted two-third of the amount in consideration of the expenses which the deceased would have incurred had he been alive. The learned counsel for the appellant would submit that considering the age of the deceased at the time of his death and considering the MACA. No. 705/04 -3- nature of business he was running some enhancement should have been given taking into account the future prospects in the business. But we are not inclined to do so as there is no convincing evidence to show that the business has been closed down after the death of the deceased. As there is no challenge regarding the yearly income fixed by the Tribunal from the side of the third respondent by a separate appeal/cross objection we adopt the yearly income fixed by the Tribunal for computing compensation for loss of dependency. As the deceased was unmarried we lean ourselves to the multiplier applicable to the age group of the mother who is younger among the parents who was aged 50 years at the time of the accident. The correct multiplier applicable to the age group of the mother as per the decision of the Apex Court in Sarla Varma v. Delhi Transport Corporation, 2010(2) KLT 802 SC is 13. One half of the amount has to be deducted in consideration of the MACA. No. 705/04 -4- expenses which the deceased would have incurred had he been alive. When the dependency compensation is recalculated as above it will stand enhanced to `3,90,520/-. As the learned Tribunal has awarded only a sum of `2,57,400/- under that head the appellants become entitled to get an additional sum of `1,33,120/- as compensation for loss of dependency. 4. The learned counsel for the appellant would submit that though the accident was on 5-6-1997 death occurred only after four days. Taking into account the excruciating pain which the deceased might have undergone on account of the injury sustained by him in the accident till the time of his death we are of the definite view that some more amount should have been awarded by the Tribunal towards pain and suffering. The learned Tribunal has awarded only `10,000/- towards compensation for pain and suffering. We award to the appellant an additional sum of `10,000/- MACA. No. 705/04 -5- ## towards compensation for pain and suffering. 5. We notice that no amount has been awarded towards loss of estate. We award to the appellants a sum of `5000/- on that count. 6. The learned Tribunal was miserly in awarding funeral expenses also. The amount awarded was only `2000/- under that head. We award a further sum of `3000/- under that head. 7. We notice that the deceased was the youngest son of the first and second appellants. Unfortunately no amount has been awarded by the learned Tribunal towards loss of love and affection. Certainly the parents and siblings of the appellants are entitled to get reasonable amount for compensation towards loss of love and affection. We award to the appellants a sum of `20,000/towards loss of love and affection. Thus in total the appellants become entitled to get additional sum of MACA. No. 705/04 -6- `1,71,120/- over and above what has been awarded. 8. It was submitted by the learned senior counsel for the third respondent that the learned Tribunal has awarded interest at the rate of 9% per annum from the date of the petition till realisation. As we feel the said interest rate is excessive we make it clear that the original amount awarded as well as the additional amount awarded by us will carry interest at the rate of 7.5% only per annum from the date of petition till realisation. The appeal is allowed and the impugned award shall stand modified as above. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-