Kala M J and others v. The New India Assurance Co Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937** **MACA.No. 2230 of 2015 () ------------------------AGAINST THE AWARD IN OPMV 793/2007 of M.A.C.T., KOLLAM DATED 16-06-2009** **APPELLANT(S)/PETITIONERS: ------------------------** **1. KALA M J, W/O.LATE HARIKRISHNA KUMAR, KARIMBIYIL VEEDU, NEAR HANUMAN TEMPLE, VENDAR MURI, VENDAR P.O., PUTHOOR.** **2. KARTHIKA KRISHNAN** - **S/O.LATE HARIKRISHNA KUMAR, KARIMBIYIL VEEDU, NEAR HANUMAN TEMPLE, VENDAR MURI, VENDAR P.O., PUTHOOR (MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN KALA M.J., 1ST APPELLANT).** **3. KIRAN KRISHNAN S/O.LATE HARIKRISHNA KUMAR, KARIMBIYIL VEEDU, NEAR HANUMAN TEMPLE, VENDAR MURI, VENDAR P.O., PUTHOOR (MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN KALA M.J., 1ST APPELLANT).** **4. G.RAJAMMA** - **M/O.LATE HARIKRISHNA KUMAR, KARIMBIYIL VEEDU, NEAR HANUMAN TEMPLE, VENDAR MURI, VENDAR P.O., PUTHOOR.** - **BY ADVS. SRI.K.SIJU** **SMT.NIMA JACOB** ## **RESPONDENT(S)/3RD RESPONDENT:** **------------------------------** **THE NEW INDIA ASSURANCE CO LTD. DIVISIONAL OFFICE, KOLLAM-691001.** **BY ADV. SRI.N.S.MOHAMMED USMAN ADV.SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------M.A.C.A. No. 2230 of 2015 -------------------------------------------------Dated this the 8[th] day of March, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of the death of one Harikrishna Kumar, pursuant to a road traffic accident occurred on 18.12.2006. 2. The factual position revealed from the proceedings is that the deceased was riding a motor cycle, bearing Reg.No.KL-2/J 8761, and while so, when he reached the place of occurrence, a mini lorry, bearing Reg.No.KL-2/P-7762, owned, driven and insured by respondents 1 to 3 before the Tribunal, came and dashed against the motorcycle ridden by the deceased and he was thrown down on the road. The rider sustained very severe head injuries, leading to his death, which led to the claim petition filed by his legal heirs before the Tribunal seeking compensation. M.A.C.A. No. 2230 of 2015 **==> picture [20 x 8] intentionally omitted <==** 3. Respondents 1 & 2 filed written statement, but, the matter was contested only by the 3[rd] respondent insurer. The nature of contention raised by the respondent insurer was mainly on quantum and negligence. 4. The evidence adduced before the Tribunal consists of Exts.A1 to A14 from the part of the appellants and Exts.B1 and B2 from the part of the respondents. The 1[st] appellant was examined as PW1. No oral evidence was adduced from the part of the respondents. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident was solely because of the negligence on the part of the 2[nd] respondent, who was the driver of the mini lorry, and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the case projected by the appellants/claimants before the Tribunal was that at the time of the accident, the deceased was working as Vocational Higher M.A.C.A. No. 2230 of 2015 **==> picture [20 x 8] intentionally omitted <==** Secondary School Teacher in Government VHSE, Pattazhi, earning monthly income of ₹14,000/-. Referring to serious consequences resulted because of the death, a total sum of 19,00,000/- was claimed₹ accordingly. But, the Tribunal, after deducting 1/3[rd] of the income towards personal expenses, fixed the monthly income of the deceased as 8,576/- for working out loss of₹ dependency. Awarding amounts under different heads, the total compensation was fixed as 16,76,592/-, which₹ was rounded to 16,76,600/-. The said amount was₹ directed to be satisfied with interest @ 7.5% from the date of petition, till the date of realization. The liability was mulcted upon the shoulders of the respondent insurer. Inadequacy of the compensation awarded by the Tribunal is the subject matter of challenge in this appeal. 7. Heard the learned counsel for the appellants and the learned counsel for the respondent insurer. 8. The amounts awarded by the Tribunal under different heads as given in paragraph 8 of the Award are M.A.C.A. No. 2230 of 2015 ..4.. ## as follows; Transport to hospital and ₹5,000/funeral expenses Compensation for pain ₹5,000/and suffering Compensation for continuing continuing for permanent ₹16,46,592/disability(₹8576 x 12 x 16) Compensation for loss of ₹10,000/consortium Compensation for loss of ₹10,000/love and affection ------------------Total ₹16,76,592/- (rounded as 16,76,600/-)₹ ======== 9. After hearing both the sides, this Court finds that the course followed by the Tribunal in fixing the multiplicand in respect of the deceased does not appear to be correct. Admittedly, at the time of the accident, the deceased was working as a VHSE Teacher in the Government Vocational Higher Secondary School at Pattazhi and his salary was 14,000/-, as certified in₹ Ext.A11 salary certificate issued by the concerned Principal. The Tribunal has reduced 1/3[rd] of the said salary to arrive at the reckonable monthly income as ₹ M.A.C.A. No. 2230 of 2015 **==> picture [20 x 8] intentionally omitted <==** 8,576/-, and the annual income fixed in this regard was multiplied by 16, which was based on the age of deceased (ought to have been '15' as per the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]). At the same time, it has to be noted that, by virtue of the law declared by the Apex Court, in the case of a person, who was having a permanent employment and income, 50% of the salary had to be added to fix the multiplicand, which exercise has not been done by the Tribunal. In the said circumstance, we find it appropriate to refix the reckonable extent of monthly income of the deceased as, 21,000/- (14000 + 50% of₹ 14000). 10 Coming to the extent of deduction for the personal expenses, it has been made clear by the Apex Court in **Sarla Verma** 's case (cited supra) that in respect of the family consisting of members 2 to 3, it should be 1/3[rd] and where it is 4 to 6, it should be 1/4[th] . The deceased is survived by his widow, 2 minor children and his mother, who are the dependants; and as such, the deduction M.A.C.A. No. 2230 of 2015 ..6.. towards personal expenses could only have been 1/4[th] and not 1/3[rd] . Appropriate multiplier, as mentioned above, is '15' and not 16. On reworking the compensation towards loss of dependency, it comes to 28,35,000/- (21000 x 12 x₹ 15 x 3/4). After deducting the sum of 16,46,592/- awarded₹ by the Tribunal, balance comes to **₹ 11,88,408/-** . 11. In **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 SC], it has been declared by the Apex Court that the amount of compensation payable towards loss of consortium, loss of love & affection and funeral expenses shall be at the rate of ₹1,00,000/-, ₹1,00,000/- and ₹25,000/- respectively. It is true that the accident in the said case was in the year 2007, whereas in the instant case, it was in the year 2006. The said decision was subsequently considered by a Division Bench of this Court in **Valsamma** v. **Biju Jose** [2014 (1) KLT 10], where it has been held that the amounts payable towards 'loss of consortium' as well as 'loss of love and affection' have to be awarded with reference to the age of the M.A.C.A. No. 2230 of 2015 **==> picture [20 x 8] intentionally omitted <==** deceased/claimants as well. Striking a balance, we find it appropriate to refix the compensation for 'loss of consortium' as ₹75,000/-. After deducting the compensation of ₹10,000/- awarded by the Tribunal towards loss of consortium, balance payable is **₹65,000/-** . Similarly, an equal amount of ₹75,000/is payable towards 'loss of love and affection' and after deducting the sum of 10,000/- awarded by the Tribunal towards₹ loss of love and affection, the balance under this head comes to **65,000/-₹** . We also find it appropriate to award a further sum of **₹15,000/-** towards funeral expenses. 12. Accordingly, the appellant will be entitled to get an additional compensation of **₹13,33,408/-** (Rupees thirteen lakhs thirty three thousand four hundred and eight only) in this appeal. Since the policy is admitted, we direct the insurance company to satisfy the additional compensation @ 9% per annum from the date of petition except the period of delay (2094 days) in filing the appeal, by virtue of the order passed on 16.02.2016 as a condition M.A.C.A. No. 2230 of 2015 **==> picture [20 x 8] intentionally omitted <==** to have had the delay condoned. Deposit shall be effected before the Tribunal within one month from the date of receipt of copy of this judgment. The appeal is disposed of accordingly. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge