MACA NO. 1364 OF 2015

`MACA NO. 1364 OF 2015` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 ``` ## **`MACA NO. 1364 OF 2015`** ``` AGAINST THE AWARD DATED 26.11.2014 OP(MV)NO.519/2005 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL-II, MAVELIKKARA`** ## **`APPELLANTS / PETITIONERS:`** - `1 RAHIYANATH R., AGED 53 YEARS HASITHA NIVAS, KADATHOOR MURI, K.S.PURAM PO, KARUNAGAPPALLY` - `2 HASSITHA.A, AGED 38 YEARS HASITHA NIVAS, KADATHOOR MURI, K.S.PURAM PO, KARUNAGAPPALLY` - `3 HASSEEN.A, AGED 35 YEARS HASITHA NIVAS, KADATHOOR MURI, K.S.PURAM PO, KARUNAGAPPALLY` - `4 HASHA.A, AGED 17 YEARS (MINOR PETITOER IS REP. BY HER MOTHER, GUARDIAN AND NEXT FRIEND) HASITHA NIVAS, KADATHOOR MURI, K.S.PURAM PO, KARUNAGAPPALLY` ``` BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SMT.PARVATHY NAIR ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1MARTIN CHACKO, VALLIKKADU VEEDU, NALUKODI MURI, CHANGANASSERY 686 101. ``` - `2 PRASANNA KUMAR THAKADI PARAMBIL THRIKODITHANAM, CHANGANASSERY 686 101.` - `3 UNITED INDIA INSURANCE CO. LTD, REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, KAYAMKULAM690 502. BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 1364 OF 2015` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 1364 of 2015 st Dated this the 31 day of October, 2023 ## JUDGMENT The appellants are the petitioners in O.P.(M.V) No. 519/2005 on the files of the Motor Accidents Claims Tribunal, Mavellikkara. The said claim petition was submitted by them seeking compensation for the death of one Abdul Razak, who died due to the injuries sustained in a motor accident that occurred on 18.12.2003. 2. The accident occurred when the scooter ridden by the deceased was hit by a car bearing registration No.KL.05.M.9701, driven by the 1[st] respondent. The said vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was working as an Arabic Teacher with a monthly income of Rs.9,489/at the time of the accident. Due to the accident, he sustained very serious injuries and he was in a vegetative stage. He continued his treatment until he died on 09.02.2005. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent/insurance company submitted a written statement admitting the coverage of the policy in respect of the said vehicle. However, they contended that there was violation `MACA NO. 1364 OF 2015` 3 of policy conditions by the insured. They also disputed the negligence as well as the quantum of compensation. 4. The evidence in this case consists of Ext.A1 to A20 from the side of the appellants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence on the part of the driver of the car. Even though the 3[rd] respondent raised a contention as to the violation of the policy conditions, that was found against them, and therefore, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.12,50,738/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances by the appellants seeking enhancement of compensation. 5. Heard, Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellants and Smt. Latha Susan Cherian, learned counsel appearing for the 3[rd] respondent/Insurance company. 6. The learned counsel for the appellants points out that the salary of the appellant, even though claimed in the claim petition was Rs.9,489/- later, the same was revised and refixed by the `MACA NO. 1364 OF 2015` 4 Government, with effect from 01.07.2004, as Rs.11,580/-. Thus, the date on which the revision of salary came into effect was subsequent to the date of the accident but before his death. Therefore, it was contended that the revised salary should have been considered to determine the compensation. The crucial aspect to be noticed is that in this case, the accident occurred on 18.12.2003, the deceased took voluntary retirement on 1.10.2004 consequent to the injuries, and he died on 09.02.2005. The learned counsel for the Insurance Company opposed taking the monthly income at the revised scale on the reason that the revision came into force, after the date of the accident. According to the learned counsel for the insurance company, the relevant date for taking the monthly income should be the date of the accident and not the date of death. The learned counsel also placed reliance upon the observations made by the Hon’ble Supreme Court in **Sarla Varma & Ors v. Delhi Transport Corporation [(2009) 6 SCC 121],** in support of the said contention. The learned counsel also brought the attention of this court to the observations made by the Hon’ble Supreme Court in **Sarla Varma’s case** in paragraphs 44 and 45, which deal with the enhancement towards the future prospects taking into account the revision of the pay scale. 7. However, I am of the view that the said observations made by the Hon’ble Supreme Court in the aforesaid paragraphs `MACA NO. 1364 OF 2015` 5 cannot be made applicable in this case, mainly because of the peculiar facts and circumstances existing. It is to be noted that the deceased met with an accident on 18.12.2003. He was in a critical stage consequent to the injuries and was under treatment, until he died on 09.02.2005. Despite the injuries, he continued in the service, and the pay revision occurred on 01.07.2004 while he was in service. Later, with effect from 01.10.2004, he availed voluntary retirement, consequent to the injuries and disability, which was after the pay revision. Therefore, the actual loss sustained by the legal heirs of the deceased is to be taken into account with reference to the date of death, as the deceased and the dependents of the deceased were deprived of the benefit of the revised income, even though the same was availed by the deceased before his death. This is particularly because, the death was admittedly due to the injuries sustained in the accident, which is not seriously disputed. 8. As far as the observations made by the Hon’ble Supreme Court in **Sarla Varma’s case** are concerned, the question considered by the Supreme Court in that case was different. The Hon’ble Supreme Court was dealing with the pay revisions which took place years after the accident, and the claimants had never accrued the right to get revised income, as the death was before the said pay revisions. Here, in this case, the benefit of pay revision `MACA NO. 1364 OF 2015` 6 was availed by the deceased during his lifetime, and therefore, the same cannot be ignored to compute the loss of dependency consequent to the death. Consequently, I have no doubt in my mind that the monthly income to be taken to quantify the compensation for loss of dependency is Rs.11,580/-, which is the revised salary with effect from 01.10.2004, even though the same was after the date of the accident. Adoption of the revised monthly income is perfectly justified as it is already found that the death was due to the injuries sustained in the accident. 9. Another relevant aspect is that, as the deceased comes within the age group of 50-60 years and was having regular employment with fixed salary, a further addition of 15% should be made towards future prospects in the light of the **Pranay Sethi’s case.** While reassessing the compensation with the above revised monthly income and 15% of the future prospectus, the amount would come to Rs.13,18,383/-[ (11580 + 15%) x 12 x 11 x ¾] and the amount already awarded by the tribunal under this head is Rs.9,38,619/-. Thus, the additional compensation would come to **Rs.3,79,764/-** . 10. While moving on to other heads, it can be seen that the Tribunal awarded an amount of Rs.25,000/- towards funeral expenses, whereas the actual amount payable was Rs.15,000/- as per **Pranay Sethi’s case.** It can be seen that the Tribunal has `MACA NO. 1364 OF 2015` 7 awarded only Rs.5000/- under the head of loss of estate, whereas the actual amount is Rs.15,000/-. Therefore, the additional amount awarded towards funeral expenses is adjusted against the lessor amount awarded for loss of estate. 11. When it comes to the loss of consortium, it is seen that the amount awarded is only Rs.25,000/-. But a further amount of Rs.20,000/- is granted for loss of love and affection and another sum of Rs.10,000/- is granted under the head of loss of expectation of life and prospects of the family. As per the decision rendered by the Honourable Supreme Court in **United India Insurance Co Ltd., Vs. Satinder Kaur @ Satwinder Kaur and Other [2020** **(3) KHC 760],** the amount payable towards loss of consortium to the appellants is Rs.40,000/- each thereby making the total amount as Rs.1,60,000/-. It is also a well settled position of law that, when compensation for consortium is awarded, no separate compensation is to be granted for loss of love and affection. Similarly, since the compensation for loss of consortium would take in the loss of expectation of life and prospectus of the family, the amount of Rs.10,000/- awarded under this head was also not necessary. Therefore, the amount awarded under the heads of loss of love and affection and loss of expectation of life and prospectus of the family can be adjusted towards the compensation now refixed under the head of loss of consortium, Thus, the additional `MACA NO. 1364 OF 2015` 8 compensation under the head of loss of consortium would stand revised as **Rs.1,05,000/-** . (1,60,000) – (25000 + 20000 + 10000). 12. Another aspect highlighted by the learned counsel for the appellants was with regard to the compensation for pain and suffering. For more than one year and three months, the deceased was in a critical stage, and therefore, some amount needs to be granted. Even though the learned counsel for the Insurance Company opposes the said prayer, I am of the view that, considering the long period of treatment undergone by the deceased and the pathetic stage of the deceased from the date of the accident, until he died on 09.02.2005, certainly, the deceased has to be compensated for the pain and sufferings he had suffered. As per the provisions in The Kerala Torts (Miscellaneous Provisions) Act, 1976, the said claim would survive to the legal heirs upon the demise of the person who suffered such injuries due to a tortious act. Therefore, the appellants herein can very well claim such compensation as well. Considering the facts and circumstances of the case, I deem it appropriate to fix it as Rs.40,000/-. 13. Even though the learned counsel for the appellants raised a contention that he is entitled to bystander expenses for the entire period he was undergoing treatment, it is seen that no such claim has been raised before the tribunal and in the appeal memorandum, also no grounds relating to the same were raised. `MACA NO. 1364 OF 2015` 9 The Tribunal has already awarded Rs 21,425/- under the said head pertaining to the period of hospitalization. In such circumstances, taking note of the amounts awarded under the other heads, I am not inclined to grant the same. Accordingly, the total additional compensation is fixed as Rs.5,24,764/- [379764+105000+40000]. 14. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 26.11.2014 in OP(MV)No.519/2005 passed by the Motor Accidents Claims Tribunal, Mavelikkara, is hereby modified by granting an additional compensation of Rs.5,24,764/-. (Rupees five lakhs twenty four thousand seven hundred and sixty four only). The said amount shall be deposited by the third respondent/Insurance Company along with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. This appeal is allowed accordingly. sd/- ZIYAD RAHMAN, A.A, JUDGE ## R.AV `MACA NO. 1364 OF 2015` 10 ## **`APPENDIX OF MACA 1364/2015`** ``` PETITIONER EXHIBITS Exhibit P1 Exhibit P2COPY OF SALARY CERTIFICATE ``` ``` A TRUE COPY OF AWARD DATED 26.11.2014 IN OP (MV) NO. 519 OF 2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA. ```