High Court of KeralaSingle Judge2020-06-09The appeal is partly allowed; enhanced compensa...

Laiby George and others v. George J. Puthiyidam and others

Case / Petition Number:MACA.No.1235 of 2013

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-06-09
Court Decision / Holding: The appeal is partly allowed. The tribunal’s compensation is revised upward by applying modern standards (future prospects and notional income adjustments per Pranay Sethi and Sarla Verma). Additional amounts are awarded for loss of dependency, loss of consortium, loss of estate, funeral expenses, and pain and suffering, resulting in an enhanced total. The 3rd respondent/insurer is directed to pay an additional ₹4,70,355 with 7.5% interest from the date of OP(MV) within one month.
Final Disposition: The appeal is partly allowed; enhanced compensation with interest and directed payment by insurer within one month.

Parties to the Case

Appellants / Petitioners

Laiby George
Tomin George (minor)
Jojin George (minor)
Ann Maria George (minor)

Respondents

George J. Puthiyidam
Nisha G.
The National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Georgekutty Mathew

Counsels for Respondents

• Baby Thomas
• M.A. George
• Deepa George
• P.G. Ganappan

Case Synopsis & Summary

This is MACA.No.1235 of 2013, an appeal under Section 173 of the Motor Vehicles Act, 1988, arising from an award of the Motor Accidents Claims Tribunal, Pala dated 10 January 2013 in OP(MV) No.974/2009. The deceased, George Thomas, aged 47, a police constable, was killed in a vehicular collision on 21 July 2009. The Appellants/ petitioners – widow and three minor children represented by the mother as next friend – challenge the MACT award, claiming compensation of ₹35 lakhs for the loss suffered due to the death. The respondents contend the accident occurred solely due to the negligence of the deceased and that the vehicle involved had a valid license; insurer disputes liability. The Tribunal found the 2nd respondent negligent, relying on the charge sheet, and awarded ₹16,99,420 after distributing sums across heads such as loss of dependency, pain and suffering, loss of estate, funeral expenses, and loss of consortium, with some heads reduced. On appeal, the Court revises the approach to compensation by applying established principles from Supreme Court precedents (notably future prospects and deduction for personal living expenses) and adjusts the multiplier from 11 to 11 in this context while enhancing several heads. The result is an overall enhancement of compensation, with the insurer/3rd respondent directed to pay an additional ₹4,70,355 at 7.5% interest within a month, thereby partly allowing the appeal.

Provisions of Law Cited

Section 173 of Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Notional income concept
Future prospects in calculating compensation (Pranay Sethi)
Deduction for personal and living expenses (Sarla Verma)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal erred in applying a multiplier of 11 instead of 13 given the deceased’s age (47) and 9 years of service left; it failed to adequately account for future career prospects, which would raise the notional income. They seek higher compensation across heads including loss of consortium, loss of estate, funeral expenses, and pain and suffering. They rely on Pranay Sethi and Sarla Verma to adjust notional income, deduction for personal expenses, and to factor future prospects, demanding an upward revision of the award.

Contentions of Respondents

The respondents argue the accident was solely the deceased’s negligence and that the MACT’s conclusions should stand. They contend the insured’s driver’s license was valid and dispute any liability beyond what is already established, urging no substantial deviation from the Tribunal’s findings or the compensation calculation.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Pranay Sethi and others	(2017) 16 SCC 680	Positive	Courts follow Pranay Sethi guidelines to incorporate future prospects and notional income in calculating compensation.
Sarla Verma and others v. Delhi Transport Corporation and another	(2009) 6 SCC 121	Positive	Used to justify deduction for personal and living expenses in loss of dependency calculations.
2006 ACJ 1058	2006 ACJ 1058	Positive	Cited as precedent for the multiplier rule (11) in the given context.
2009 ACJ 2742	2009 ACJ 2742	Positive	Cited as precedent for multiplier and assessment methods.
2005 ACJ 1441	2005 ACJ 1441	Positive	Cited as precedent for multiplier approach.
2009 ACJ 1199	2009 ACJ 1199	Positive	Cited as precedent for multiplier and calculation method.
2007 ACJ 2188	2007 ACJ 2188	Positive	Cited as precedent for multiplier and dependency calculations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942** ## **MACA.No.1235 OF 2013** **AGAINST THE AWARD IN OP(MV)No.974/2009 DATED 10-01-2013 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA** ## **APPELLANTS/PETITIONERS:** - **1 LAIBY GEORGE, PALLIYARADIYIL HOUSE, EZHACHERRY P.O., ANTHINADU, KOTTAYAM DISTRICT-686 509.** - **2 TOMIN GEORGE (MINOR), DOB 24.12.1996, PALLIYARADIYIL HOUSE, EZHACHERRY P.O., ANTHINADU, KOTTAYAM DISTRICT-686 509.** - **3 JOJIN GEORGE (MINOR), DOB 27.10.1997, PALLIYARADIYIL HOUSE, EZHACHERRY P.O., ANTHINADU, KOTTAYAM DISTRICT-686 509.** - **4 ANN MARIA GEORGE (MINOR), DOB 18.4.2004, PALLIYARADIYIL HOUSE, EZHACHERRY P.O., ANTHINADU, KOTTAYAM DISTRICT-686 509. (PETITIONERS 2 TO 4 ARE REPRESENTED BY THE 1ST PETITIONER LAIBY GEORGE, THEIR MOTHER AS NEXT FRIEND).** ## **BY ADV. SRI.GEORGEKUTTY MATHEW** ## **RESPONDENTS/RESPONDENTS:** **1 GEORGE J. PUTHIYIDAM, 9/16 PUTHIYIDAM HOUSE, KADANADU P.O., ANTHINADU, KOTTAYAM DISTRICT-686 653.** **MACA.No.1235 OF 2013** **:2:** **2 NISHA G., PUTHIYIDAM HOUSE, KADANADU P.O., ANTHINADU, KOTTAYAM DISTRICT-686 653. 3 THE NATIONAL INSURANCE CO. LTD., NEW DELHI, REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM-686 651. R1 BY ADV. SRI.BABY THOMAS SRI M.A. GEORGE SMT DEEPA GEORGE SRI. P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2020, THE COURT ON 09-06-2020 DELIVERED THE FOLLOWING:** **MACA.No.1235 OF 2013** **:3:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 9[th] day of June, 2020**_ Petitioners in OP(MV) No.974/2009 of the Motor Accidents Claims Tribunal, Pala, are in appeal aggrieved by Award dated 10.01.2013 therein, invoking Section 173 of the Motor Vehicles Act, 1988. 2. The appellants-petitioners are widow and children of deceased George Thomas. Sri.George Thomas aged 47 and employed as a Police Constable, was knocked down by a car driven by the 2[nd] respondent on 21.07.2009 near Pulinchuvadu Bhagom on Melukave - Kollappally road. Sri.George Thomas was taken to Medical College Hospital, but succumbed to the injuries on the same day. The appellants filed OP(MV) contending that the accident occurred due to the rash and negligent driving of the 2[nd] respondent and the respondents are **MACA.No.1235 OF 2013** **:4:** liable to compensate them. The appellants made a claim for ₹35 lakhs towards compensation. 3. The 1[st] respondent opposed the OP(MV) stating that the accident was caused solely due to the negligence of the deceased and that the 2[nd] respondent had a valid driving licence. The 3[rd] respondent-insurer also stated that the accident occurred solely due to the negligence of the deceased. The statements in the OP(MV), made by the appellants on the age and income of the deceased were disputed. 4. The appellants produced Exts.A1 to A10 documents and examined the 1[st] appellant as PW1. The respondents did not adduce any oral or documentary evidence. 5. The Tribunal, after appreciation of evidence, held that Ext.P4 charge sheet would _prima facie_ show that the 2[nd] respondent was negligent and in the absence of any contrary evidence, it should be held that the accident was caused due to the negligence on the part of the 2[nd] respondent. Taking note of **MACA.No.1235 OF 2013** **:5:** various factors, the Tribunal awarded an amount of ₹16,99,420/towards compensation under the following ## heads:- |Part I|Amount claimed (Rs.)|Amount awarded (Rs.)| |---|---|---| |Transport to hospital|5,000|2,000| |Damage to clothing and articles|2,000|1,000| |Treatment expenses|5,000|Not entitled| |Funeral expenses|15,000|5,000| |Part II||| |Pain and suffering|50,000|15,000| |Loss of estate|2,00,000|5,000| |Loss of dependency|30,00,000|16, 41,420 16,580 x 12 = ₹ 1,98,960 - 1/4 ₹ th (49740) - 1,49,220 x 11)| |Loss of love and affection|2,00,000|20,000| |Loss of consortium to first petitioner|50,000|10,000| |Loss of expectation of life|5,00,000|Not entitled| |Total Claim is limited to|39,77,000 35,00,000|16,99,420| ## Being dissatisfied by the amount of compensation awarded, the ## appellants are before this Court. 6. Learned counsel for the appellant submitted that the fact that the deceased was aged 47 and was drawing a monthly salary of 16,580/- as a Police Constable is not in dispute. The₹ **MACA.No.1235 OF 2013** **==> picture [23 x 9] intentionally omitted <==** Claims Tribunal committed a grave error in adopting the multiplier of 11 when the appropriate multiplier would have been 13 as the deceased was aged 47 years. The Tribunal did not take into account future prospects of the deceased in his service, while arriving at his notional income. The appellants were entitled to 40,000/- as compensation towards loss of₹ consortium, whereas the Tribunal granted only 10,000/-. Only₹ an amount of 5,000/- was awarded towards compensation for₹ loss of estate. The award of 5,000/- towards funeral expenses₹ is also on a lower side. The appellants are entitled to get a higher compensation towards pain and suffering. Taking into account all the above factors, the compensation awarded by the Tribunal has to be revised upward. 7. The Standing Counsel for the 3[rd] respondent controverted the arguments made on behalf of the appellants. The Standing Counsel pointed out that the retirement age of the deceased was 56 years. While calculating the income of the deceased, the Tribunal ought to have adopted a split **MACA.No.1235 OF 2013** **==> picture [23 x 9] intentionally omitted <==** multiplier, as the deceased had only 9 years service remaining. The Tribunal has considered all relevant aspects in awarding the compensation and no interference is warranted with the impugned Award. 8. I have heard the learned counsel for the appellants and learned Standing Counsel for the 3[rd] respondent. 9. The deceased was a Police Constable aged 47 years and he was drawing a monthly income of 16,580/-, is₹ not in dispute. The deceased had 9 years remaining service. The Tribunal considered the adoption of proper multiplier. The Tribunal, after referring to the judgments reported in 2006 ACJ 1058, 2009 ACJ 2742, 2005 ACJ 1441, 2009 ACJ 1199 and 2007 ACJ 2188, arrived at the conclusion that the proper multiplier to be taken is 11 as per the settled law since multiplicand is high. 10. However, it has to be noted that while awarding compensation towards loss of dependency, the Tribunal did not take into consideration the future career prospects of the **MACA.No.1235 OF 2013** **==> picture [23 x 9] intentionally omitted <==** deceased nor the personal and living expenses. Therefore, in view of the decision of the Apex Court in _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ , the compensation towards loss of dependency is to be revised appropriately, making provisions for the future prospects in career of the deceased and deductions to be made towards his personal and living expenses. The monthly income of the deceased was 16,580/-. An enhancement of 30% has to be₹ made towards future prospects to arrive at notional income of the deceased in view of the judgment of the Apex Court in _**Pranay Sethi** (supra)._ Accordingly, the notional income of the deceased would be 24,870/-. As the number of dependents₹ are 4, a deduction of 1/4[th] amount has to be made towards personal and living expenses in view of the decision of the Apex Court in _**Sarla Verma and others v. Delhi Transport Corporation and another** [(2009) 6 SCC 121]_ . Accordingly, ₹4,145/- is reduced from the notional income. The notional income for the purpose of calculating compensation towards loss of dependency therefore would be ₹20,725/-. The **MACA.No.1235 OF 2013** **==> picture [23 x 9] intentionally omitted <==** appellants accordingly will be entitled to enhancement of ₹4,10,355/- (₹20,725/- x 12 x 11 x 3/4 minus 16,41,420/-₹ already awarded by the Tribunal) towards compensation for loss of dependency. 11. The Tribunal has granted only ₹10,000/compensation towards loss of consortium, 5,000/- towards₹ loss of estate and 5,000/- towards funeral expenses. These₹ amounts are on a lower side and will have to be revised in the . light of the decision of the Apex Court in _**Pranay Sethi** (supra)_ Accordingly, enhancement towards loss of consortium, loss of estate and funeral expenses will be 30,000/-, 10,000/- and₹ ₹ ₹10,000/- respectively, enhancing the total compensation under these three heads to 70,000/-.₹ 12. The learned counsel for the appellants argued that the compensation of ₹15,000/- granted towards pain and suffering is very less. The accident took place on 21.07.2009 at about 6.15 a.m. and the deceased succumbed to injuries at about 11.55 a.m. The appellants are the wife and 3 minor **MACA.No.1235 OF 2013** **==> picture [30 x 9] intentionally omitted <==** children. Taking note of the entirety of the case, this Court is inclined to enhance the compensation awarded towards pain and suffering to ₹25,000/-, by granting an additional compensation of 10,000/-.₹ Accordingly, the appellants will be eligible for additional compensation on various heads as indicated below:- |(i)|Additional compensation towards loss of|Additional compensation towards loss of|4,10,355/- ₹|4,10,355/- ₹| |---|---|---|---|---| ||dependency ( 20,725/- x 12 ₹|x 11 x 3/4 minus||| ||16,41,420/- already awarded ₹|by the Tribunal)||| |(ii)|Additional compensation towards loss of|||30,000/- ₹| ||consortium ( 40,000/- minus ₹|10,000/- already ₹||| ||awarded by the Tribunal)|||| |(iii)|Additional compensation towards loss of estate|||10,000/- ₹| ||( 15,000/- minus 5,000/- already awarded by ₹ ₹|||| ||the Tribunal)|||| |(iv)|Additional compensation|towards funeral||10,000/- ₹| ||expenses ( 15,000/- minus ₹| 5,000/- already ₹||| ||awarded by the Tribunal)|||| |(v)|Additional compensation towards pain and|||10,000/- ₹| ||suffering ( 25,000/- minus ₹|15,000/- already ₹||| ||awarded by the Tribunal)|||| ||**Total**||**4,70,355/-** **₹**|| ||The appeal is therefore partly allowed.|||The 3rd| **MACA.No.1235 OF 2013** **==> picture [30 x 9] intentionally omitted <==** respondent is directed to pay additional compensation of ₹4,70,355/- to the appellants with 7.5% interest from the date of the OP(MV) within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/06/06/2020