Geetha Ramanathan (through legal heirs) vs Jayan Poulouse, K.O. Joshy and Oriental Insurance Company Limited, MACA No. 2175 of 2011

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939 MACA.No. 2175 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1099/2004 of MACT,THRISSUR DATED 31-05-2011 APPELLANT(S):PETITIONERS ------------------------------ 1. K.RAMANATHAN, S/O.LATE M.PARAMESWARAN NAIR, KOMBIYIL HOUSE, P.O.AYYANTHOLE, PUTHURKKARA, THRISSUR DISTRICT. ## 2. VIVEK RAMANATH S/O.K.RAMANATHAN, KOMBIYIL HOUSE, AYYANTHOLE POST, PUTHURKKARA, THRISSUR DISTRICT. 3. VINAY RAMANATH, KOMBIYIL HOUSE, AYYANTHOLE POST, PUTHURKKARA, THRISSUR DISTRICT. 4. A.THANKAMMA, W/O.PARAMESWARAN NAIR, KURUVAYIL HOUSE, P.O.PURANATTUKARA, THRISSUR DISTRICT. BY ADVS.SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN RESPONDENT(S):RESPONDENTS ------------------------------------ 1. JAYAN POULOSE, S/O.POULOSE, KUNNEKKADAN HOUSE, PUTHIYEKKARA POST, MANICKYAMANGALAM, KALADY, ERNAKULAM DIST.,PIN-683574 2. K.O.JOSHY, KUNNEKKADAN HOUSE, YODHANAPURAM POST, MANICKYAMANGALAM, KALADY, ERNAKULAM DIST.,PIN-683574 3. THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE FIRST FLOOR, KALLOOKKARAN SHOPPING COMPLEX, ANKAMALI, PIN-683572, ERNAKULAM DISTRICT. R3 BY ADV. SRI.VPK.PANICKER R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. No.2175 OF 2011 ==========================** Dated this the 15[th] day of November, 2017 ## **JUDGMENT** ## _Ravikumar, J._ The legal heirs of the victim of the accident involved in O.P. (MV)No.1099/2004 on the files of the Motor Accidents Claims Tribunal, Thrissur, filed this appeal on being aggrieved by the inadequacy of the quantum of compensation granted as per the award passed thereon. They are respectively the husband, children and mother-in-law of the deceased Geetha Ramanathan. On 1.4.2004 at about 12.45 p.m, she was travelling on a motor cycle bearing Reg.No.KL-8/J-7490 as a pillion rider. At the place of the accident, it was hit by the tempo van bearing Reg.No.KL-4/E-4145 driven by the first respondent. Enroute to the hospital, she succumbed to the serious injuries sustained. The claim petition was filed under section 166 of the Motor Vehicles Act seeking a compensation of Rs.13 lakhs. As **M.A.C.A.2175/2011** 2 per the impugned award, the Tribunal awarded an amount of Rs.6,88,300/- with interest at the rate of 8% per annum from the date of the petition till realisation. 2. We have heard the learned counsel for the appellants as also the learned counsel for the third respondent insurance company. 3. In view of the absence of dispute regarding the cause of the accident as also the liability of the third respondent to indemnify the second respondent, the insured owner of the offending vehicle, the sole question to be decided is whether the appellants are entitled to get enhanced compensation. 4. The learned counsel for the appellants contended that the Tribunal went wrong in applying the multiplier as also in fixing the multiplicand for the post retiral period. It is the further contention that compensation granted under the head loss of consortium, loss of love and affection, loss of estate, funeral expenses and damage to clothing, are on the lower side. 5. Per contra, the learned counsel for the third respondent contended that a glance at the schedule of compensation would reveal **M.A.C.A.2175/2011** 3 that the Tribunal had granted reasonable compensation to the appellants under all heads and therefore, no appellate interference is called for. 6. Deceased Geetha Ramanathan was a High School Assistant in SRKGVMHSS, Puranattukara. She was aged 49 years at the time of the accident. The appellants have adduced oral as also documentary evidence to establish the occupation and income of the deceased. Going by Ext.A9 which was issued by PW1, the then Headmaster of the said school, the deceased was getting a monthly salary of Rs.11,350/- as on March, 2004. The fact that she was working as H.S.A in the said school was established through Ext.A9 and the evidence of PWs 1 and 2. The Tribunal has also accepted the evidence that the deceased was a teacher (H.S.A) and was drawing a monthly salary of Rs.11,350/-. With reference to the age of the deceased at the time of the accident, the Tribunal identified the multiplier as '13'. However, while applying the same, taking into account the fact that she was left with only 6 years and 8 months service at that point of time, the Tribunal committed a mistake and **M.A.C.A.2175/2011** 4 wrongly split the multiplier as 6.8 and 5.4. That apart, the Tribunal has fixed the notional monthly income of the deceased as Rs.2,500/for calculating compensation during the post retiral period, it is submitted. It is the submission of the learned counsel that it is the said mistakes crept in the manner of assessment of compensation that deprived just compensation to the appellants. 7. We will firstly consider whether there is substance in the said contentions. True that a scanning of the impugned judgment would reveal that with reference to the age of the deceased, the Tribunal has correctly identified the multiplier as '13'. While applying the same, the Tribunal applied only '12' as the multiplier. Taking into account the fact that the deceased was left with only 6 years and 8 months service at the time of accident which led to her death, it cannot be said that the Tribunal had committed an error in applying the split multiplier. In fact, the Tribunal has correctly applied the split multiplier in the light of the decision of the Division Bench of this Court in **Kumaran v. Roy Mathew [2017 (1) KLT 668]** . In the said decision, the Division Bench had referred to the decision of the Apex **M.A.C.A.2175/2011** 5 Court in **Puttamma and others v. K.L.Narayana Reddy and another [2014 (1) KLT 738 (SC)]** whereunder the Apex Court held that in the absence of specific reason and evidence on record, split multiplier should not be applied as a routine course. The Division Bench further held that in the case of a person working in a pensionable service, the age of superannuation is definite. In such circumstances, without all peradventure, it can be said that there would be considerable reduction in the income after retirement on superannuation and in such circumstances, it is only proper to split the multiplier while calculating dependency compensation. In the case on hand, as noticed hereinbefore, deceased Geetha Ramanathan was left with 6 years and 8 months service. At the same time, even after identifying the multiplier correctly as '13', the Tribunal applied '12' as the multiplier and split it as 6.8 and 5.4. We are of the view that in such circumstances, it was only reasonable to split the multiplier of '13', which is applicable in the case on hand with reference to the age of the deceased, as 7+6. While considering the dependency compensation payable for the pre-retiral period, the Tribunal took the **M.A.C.A.2175/2011** 6 monthly income as Rs.11,350/-. Taking into account the number of surviving dependent family members, the Tribunal made deduction of 1/3[rd] of the income of the deceased towards personal and living expenses. In the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** Apex Court held that if the number of surviving dependents is 2 to 3, 1/3[rd] of the income should be deducted towards personal and living expenses of the deceased. In such circumstances, it can only be held that the Tribunal has correctly identified the rate of deduction to be made with reference to the surviving dependent family members in the case on hand. While considering the income for the said period, it is also relevant to refer to the decision of the Hon'ble Apex Court in **National Insurance Co.Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** . In the said decision, the Apex Court held:- "While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition **M.A.C.A.2175/2011** 7 should be 15%. Actual salary should be read as actual salary less tax." In the case on hand, taking into account the actual salary being drawn by the deceased at the time of the accident, it is evident that it was below the taxable range. As noticed hereinbefore, the deceased was aged 49 years. She was permanently employed in an aided school. In such circumstances, in the light of the dictum laid down by the Apex Court in **Pranay Sethi** 's case, only 30% of the actual income has to be added reckoning the future prospects. In such circumstances, for calculating the compensation for permanent disability, the monthly income has to be taken as Rs.14,755/-. In such circumstances, on a reassessment of the compensation payable for loss of dependency during the pre-retiral period, the amount payable to the appellants will be Rs.8,26,280/- (14755x12x7x2/3). 8. Now, the question to be decided is how the income for calculating compensation for loss of dependency for the post retiral period should be made? As noticed hereinbefore, the deceased was working in a pensionable service. Evidently, had she been alive, she would have drawn 50% of the last pay drawn as full pension. **M.A.C.A.2175/2011** 8 Unfortunately, Geetha Ramanathan had breathed her last on 1.4.2004 and as on that date, going by Ext.A9, she was drawing a salary of Rs.11,350/-. We have already fixed the monthly income of the deceased for calculation purpose as Rs.14,755/-. In such circumstances, we are of the view that it is only reasonable to take 50% of the said income as the starting point for calculation. Since the number of surviving dependent family members was 2 to 3, 1/3[rd] of the same has to be deducted towards personal and living expenses. We have already found that the multiplier '6' has to be adopted for calculating compensation for loss of dependency during the post retiral period. In such circumstances, a re-assessment has to be made taking into account the aforesaid factors. On such re-assessment, the amount payable to the appellants as compensation for loss of dependency during the post retiral period, will be Rs.3,54,120/(7377.50x12x6x2/3). Thus, the compensation payable for loss of dependency will be Rs.11,80,400/-. The Tribunal has already granted an amount of Rs.6,47,240/-. After subtracting the same, the appellants are entitled to get an additional compensation of **M.A.C.A.2175/2011** 9 Rs.5,33,160/- under the said head. 9. Now, we will proceed to consider whether the appellants are entitled to get enhanced compensation under any other head. Towards loss of consortium, only an amount of Rs.10,000/- was granted. We are inclined to grant an additional amount of Rs.30,000/- under the said head. Towards loss of love and affection, taking note of the age of the two children, we are inclined to grant an additional amount of Rs.20,000/-. Towards loss of estate, we are inclined to grant an amount of Rs.5,000/- more. Towards damage to clothing, no amount was granted. The nature of the injuries which ultimately caused the death of Geetha Ramanathan would reveal that the dresses worn by the deceased must have been damaged in the accident. In such circumstances, we are inclined to grant an amount of Rs.1,000/- under the said head. Towards transportation and funeral expenses, the Tribunal granted a consolidated sum of Rs.5,000/-. The evidence on record discussed in the judgment itself would reveal that Geetha Ramanathan breathed her last enroute to the hospital. In such circumstances, we are inclined to grant Rs.1,000/- towards **M.A.C.A.2175/2011** 10 transportation expenses. Only an amount of Rs.5,000/- was granted by the Tribunal under the aforesaid combined heads. Treating the said amount as granted towards funeral expenses, we are inclined to grant Rs.10,000/- more thereunder. In the light of the discussions as above, this appeal is allowed. The appellants are entitled to get an additional compensation of Rs.6,00,160/-, which is rounded off to Rs.6,00,200/-. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. The third respondent shall deposit the additional compensation along with interest within a period of three months from the date of receipt of a copy of this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** ## **B.SUDHEENDRA KUMAR (JUDGE)** ## **spc/** **M.A.C.A.2175/2011** 11 **C.T. RAVIKUMAR, J.** **M.A.C.A.2175/2011** 12 **JUDGMENT September, 2010**