K.K. Remani and others v. Prathapan and Babuprakash and National Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 16TH DAY OF DECEMBER 2013/25TH AGRAHAYANA, 1935** ## **MACA.No. 644 of 2009** ## **-------------------------** **AGAINST THE AWARD IN OP(MV)NO. 1024/1999 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM DATED 19-05-2006** **....** ## **APPELLANTS/ORIGINAL PETITIONERS.:** **---------------------------------------------------------------** **1. K.K.REMANI, W/O.GOPI, AGED 50 YEARS, NAMBOOTHIRI PARAMBIL, KAITHARAM P.O., PIN-683 519.** **2. AJESH KUMAR, AGED 32 YEARS, S/O.GOPI, -DO-..** **3. ANEESHKUMAR, AGED 30 YEARS, S/O.GOPI, ---DO---.** **4. KUNJULAKSHMI, AGED 80 YEARS, MOTHER OF GOPI, ---DO---.** **BY ADVS.SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMARAN (PARAVUR)** ## **RESPONDENTS/RESPONDENTS:** **-------------------------------------------------** **1. PRATHAPAN, S/O.AYYAN, KURUTHODATHVEEDU, PIZHALA, KADAMKUDY, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **2. BABUPRAKASH, S/O.RAGHAVA KURUP, CHAMAVILAYIL HOUSE, ERUMAKKUZHI P.O., NOORANADU, MAVELIKKARA.** **3. NATIONAL INSURANCE CO. LTD, MIPC OFFICE, MUTHOOT TOWERS, MG ROAD, COCHIN.** - **R1 & R2 BY ADV. SRI.T.I.DANIEL R3 BY ADV. SRI.JOE KALLIATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** ............................................................................ M.A.C.A.NO.644 OF 2009 ........................................................................... Dated this the 16[th] day of December, 2013. ## **JUDGMENT** ## **Ramakrishnan, J.** The claimants in OP(MV)No.1024/1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam are the appellants herein. The appellants, who are the wife, children and mother of deceased Gopi, have filed the application for compensation for his death which resulted on account of the negligent driving of a vehicle, owned and driven by respondents 1 and 2 and insured with the third respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.2,50,556/on various heads as follows: Transportation, carriage of dead body & funeral expenses Rs. 5,000 Pain and suffering Rs. 10,000 Loss of consortium Rs. 10,000 Loss of love & affection Rs. 10,000 Loss of dependency Rs.2,15,556 ------------------Total Rs.2,50,556 ========= 2 M.A.C.A.NO.644 OF 2009 2. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal before this Court seeking enhancement. 3. Heard the learned counsel for the appellants and the learned counsel for the insurance company. 4. The learned counsel for the appellants submitted that the deceased was working as Assistant Sub Inspector of Police and getting Rs.6,800/- per month and aged 51 years at the time of the accident. But, the Tribunal has arbitrarily fixed his monthly income as Rs.2,500/- taking note of the fact that his second son got employment under compassionate grounds and the first appellant is also getting family pension of Rs. 4,300/- which is not correct. Further, no future prospects have been taken into consideration by the Tribunal while awarding compensation under the head loss of dependency. Further, there were four dependants and as per the decision reported in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 SC), the Tribunal ought to have deducted one fourth for his personal expense instead of one third. Further, the amount awarded under the head loss of consortium, love and affection and funeral expenses are also on the lower side. No M.A.C.A.NO.644 OF 2009 3 amount was awarded under the head loss of estate. So, according to the counsel for the appellants, the appellants are entitled to enhancement under all heads. 5. On the other hand, the learned counsel for the insurance company submitted that the Tribunal has considered all the aspects in the correct perspective and the compensation awarded under all heads are just and proper. 6. We have considered the rival contentions of both the parties in detail. 7. The fact that deceased Gopi was working as Assistant Sub Inspector of Police and getting Rs.6,800/- per month and aged only 51 years at the time of accident has been proved by the appellants by producing documentary evidence. But, the Tribunal after taking into consideration the fact that the second son of deceased has got employment under compassionate grounds and the first appellant was getting family pension of Rs.4,300/-, deducted those amounts and fixed the monthly income of the deceased as Rs. 2,500/- per month. The question whether pensionary benefit and employment obtained under compassionate grounds etc. can be taken into consideration for the purpose of fixing the monthly income of M.A.C.A.NO.644 OF 2009 4 the deceased for calculating loss of dependency has been considered by the Supreme Court in the decision reported in **Vimal Kumar & Others v. Kishore Dan & others** (2013 ACJ 1441) and held that those things are irrelevant for the purpose of considering the question of compensation under the head loss of dependency and the actual salary drawn by the deceased at the time of his death has to be taken into consideration for this purpose. Further, in the decision reported in **Rajesh v. Rajbir Singh** (2013 (3) KLT 89), the Hon'ble Supreme Court has held that a 50 year old person having fixed income has to be provided 15% increase for future prospects. The Tribunal has not considered this aspect while fixing the monthly income of the deceased for awarding compensation under the head loss of dependency. Further, In **Sarla Verma** (cited supra), it has been held that in cases where no evidence has been adduced regarding deduction of income tax in the salary particulars, then 20% will have to be deducted from his salary for assessing monthly income of the deceased for awarding compensation under the head loss of dependency. 8. It is seen from the evidence that the deceased was aged 51 years at the time of the accident. He will be getting the M.A.C.A.NO.644 OF 2009 5 salary as Assistant Sub Inspector of Police only for a period of four years. So, the loss of dependency can be calculated on the basis of his salary only for the balance period of his service. For the remaining period, notional income will have to be fixed for assessing compensation under the head loss of dependency and remaining multiplier after deducting “4” from the total multiplier has to be applied for calculating the loss of dependency after retirement. In this case, though there were four dependants, appellants 2 and 3 are major children. There is no evidence adduced on the side of the appellants to prove that they were depending on the income of the deceased at the time of his death. So, considering this aspect, only the first appellant and 4[th] appellant can be taken as dependants for the purpose of assessing compensation under the head loss of dependency. If that be the case, the Tribunal was perfectly justified in deducting one third for the personal expenses of the deceased in view of the dictum laid down in **Sarla Verma** (cited supra). If a recalculation is made on this basis, for the remaining period of service of the deceased, the appellants will be entitled to get an amount of Rs.2,00,192/-(6800x12x115% x80%x2/3) and if his notional income is taken after the period M.A.C.A.NO.644 OF 2009 6 of retirement as Rs.2500/- per month including his future prospect, the appellants will be entitled to get an amount of Rs.1,40,000/- (2500x12x7x2/3) as loss of dependency. The total amount of compensation will come to Rs.3,40,192/-. Deducting the amount of Rs.2,50,556/- awarded by the Tribunal under that head, the appellants will be entitled to get an additional amount of Rs.1,24,636/- under this head and we award this amount under this head. 8. The first appellant was aged only 40 years at the time of death of her husband. She was left with two major children of 22 years and 20 years at the time of death of her husband. So, there is no possibility of re-marriage of the first appellant. She has lost consortium of her husband for the remaining period of her life. It is true that in the decision reported in **Rajesh's case** (cited supra), the Hon'ble Supreme Court has held that a minimum compensation of Rs.1,00,000/- has to be awarded under the head loss of consortium. But, even in that case though the deceased was aged only 33 years and the widow was still younger, the Apex Court has awarded only Rs.1,00,000/- as compensation under the head loss of consortium. That will go to show that the age of the deceased, M.A.C.A.NO.644 OF 2009 7 age of the widow and the period during which the married life subsisted are all matters that will have to be considered while awarding compensation under the head loss of consortium. If this principle is taken into consideration, the amount of Rs.10,000/- awarded by the Tribunal under the head loss of consortium to the first appellant appears to be on the lower side and we enhance the same to Rs.40,000/-. Similarly, appellants 2 and 3 have lost the love and affection of their father and the 4[th] appellant has lost the support and love 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 is also is on the lower side and we enhance the same to Rs.30,000/-. The Tribunal has awarded Rs.5,000/- under the head transportation, carriage of deadbody and funeral expenses. The same appears to be on the lower side and we enhance the same to Rs.10,000/-. No amount was awarded under the head loss of estate. Normally, a conventional amount will have to be awarded under that head and we award Rs.5,000/- under that head. Though persuasive arguments were made by the learned counsel for the appellants for getting enhanced compensation under other heads, we are of the M.A.C.A.NO.644 OF 2009 8 opinion that the appellants are not entitled to enhancement under other heads as the amounts awarded by the Tribunal under other heads appears to be just and proper. In all, the appellants will be entitled to get Rs.1,84,636/- as additional compensation over and above what has been awarded by the Tribunal, which the third respondent insurance company is liable to pay interest at the rate of 9% from the date of petition till the date of payment. Two months' time is granted to the insurance company to deposit the amount as well. Since the 4[th] appellant is an aged person and appellants 2 and 3 are major children, the additional compensation is directed to be paid to the first appellant alone. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- ## **S.SIRI JAGAN, JUDGE.** ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S. To Judge