MACA No. 1502 of 2016 and CO No. 5 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** **MACA NO. 1502 OF 2016** **AGAINST THE AWARD IN O.P.(M.V) NO.452/2014 DATED 21.01.2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/3RD RESPONDENT:** **RELIANCE GENERAL INSURANCE CO. LTD, CALICUT, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENTS/CLAIMANTS:** - **1 VIJAYAKUMARI, W/O.BALAKRISHNAN, NELLIKKUNNATH HOUSE, VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK, PALAKKAD DT. 678 595.** - **2 BALAKRISHNAN, S/O.AYYAPPAN, NELLIKKUNNATH HOUSE, VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK, PALAKKAD DT. 678 595.** - **3 BINDHYA BALAKRISHNAN, D/O.BALAKRISHNAN, NELLIKKUNNATH HOUSE, VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK, PALAKKAD DT. 678 595.** ## **BY ADVS.** ## **SRI.K.B..ARUNKUMAR** **THIS M.A.C.A HAVING BEEN FINALLY HEARD ON 27.07.2021, ALONG WITH CO.5/2020,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** **CO NO. 5 OF 2020** **AGAINST THE AWARD DATED 21.01.2016 IN O.P (M.V) NO.452/2014 ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM** ## **CROSS OBJECTORS/RESPONDENT NO.1 TO 3/CLAIMANTS NO.1 TO 3** - **1 VIJAYAKUMARI, AGED 48 YEARS, W/O. BALAKRISHNAN, NELIKKUNNATH HOUSE, VAZHEMPURAM (P.O), KARAKURUSSI, OTTAPALAM TAUK, PALAKKAD DISTRICT, PIN-678 595.** - **2 BALAKRISHNAN, AGED 55 YEARS, S/O. AYYAPPAN, NELIKKUNNATH HOUSE,** **VAZHEMPURAM (P.O), KARAKURUSSI, OTTAPALAM TAUK, PALAKKAD DISTRICT, PIN-678 595.** - **3 BINDHYA BALAKRISHNAN, AGED 32 YEARS, D/O. BALAKRISHNAN, NELIKKUNNATH HOUSE, VAZHEMPURAM (P.O), KARAKURUSSI, OTTAPALAM TAUK, PALAKKAD DISTRICT, PIN-678 595.** **BY ADV K.B.ARUNKUMAR** ## **RESPONDENT/APPELLANT/RESPONDENT NO.3:** **RELIANCE GENERAL INSURANCE CO. LTD, CALICUT, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, VISHNU BUILDING, K.P. VALLON ROAD, KADAVANTHRA, ERNAKULAM, PIN-682 020.** **BY ADV K.S.SANTHI** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 27.07.2021, ALONG WITH** **MACA.1502/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:3:- ## **C.R.** ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of July, 2021 ## **JUDGMENT** The appeal and the Cross Objection are originated from an Award passed by Motor Accident Claims Tribunal, Ottappalam (for short 'the Tribunal') on 21.01.2016 in O.P.(M.V.) No.452/14 . The appeal was preferred by the insurer contending that the Tribunal went wrong in fixing the monthly income notionally as Rs.7,000/and arriving at the multiplicand by adding 50% to it in consideration of future prospects. 2. According to Smt.Santhi, the learned counsel for the insurer, the victim of the motor accident who succumbed to the injuries being a student of final year Diploma, aged 21 years, the Tribunal ought not to have fixed the monthly income notionally as Rs.7,000/- and added 50% of it in consideration of future M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:4:- prospects to arrive at the multiplicand. According to him, a sum lesser than Rs.7,000/- ought to have been taken and 40% of it ought to have been added to it. Contentions were also raised to the effect that the sum awarded as compensation for loss of dependency and loss of love and affection and the rate of interest ordered as payable for the amount awarded as compensation are also on the higher side. 3. The learned counsel has also called attention of this Court to a legitimate claim that the Cross Objection having been preferred before this Court by the Claimants after a lapse of five years from the date of filing of the appeal by the insurer, this Court ought not to have ordered interest for the period of delay. According to her, the direction to pay interest ought to have been confined to the period of pendency of the claim petition, excluding the period of delay occurred in filing the Cross Objection. 4. The Cross Objectors are the claimants who are the dependents of the deceased and the main contention raised was that, the deceased was a final year student of Diploma in M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:5:- Electronics at Government Polytechnic, Palakkad and selection having been obtained for a decent job in a Campus interview, the Tribunal ought to have taken a sum higher than Rs.7,000/- as his monthly income notionally and compensation for loss of dependency assessed on its basis. For the sake of clarity, Cross objectors are referred to hereinafter as the claimants. 5. **Ramakrishnapillai K. and others v. New India Assurance Co. Ltd** [2015 (3) KLJ 750] and **National Insurance Co. Ltd., Chennai v. Fathimath Zuhara @Zuhra Razak** [2016 KHC 691] were relied on by the claimants to contend that Rs.12,000/- ought to have been fixed by the Tribunal as monthly income on notional basis and the compensation payable for loss of dependency, assessed on its basis. It was further contended that Rs.10,000/- awarded by the Tribunal towards loss of estate is on the lower side and on the basis of the dictum in **National Insurance Co. Ltd v. Pranay Sethi** [2017 (4) KLT 662 (SC)] the same ought to have been fixed as Rs.15,000/-. Accordingly claimants seek for interference and modification of the M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:6:- ## compensation awarded by the Tribunal, under challenge. 6. True that in **Pranay Sethi** (supra) a larger bench of the Apex Court in its venture to answer a reference placed before it and with a view to standardise the procedure while awarding compensation, arrived at conclusions which are extracted hereinbelow : “61. In view of the aforesaid analysis, we proceed to record our conclusions : (I) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a Larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (II) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (III) 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. No. 1502 of 2016 and C.O. No.5 of 2020 -:7:- should be 15%. Actual salary should be read as actual salary less tax. (IV) In case of the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (V) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the Courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (VI) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (VII) The age of the deceased should be the basis for applying the multiplier. (VIII) Reasonable figures on conventional heads, namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” ## 7. In **National Insurance Co.Ltd, Chennai** Supra, the deceased was aged 19 years and was an Engineering student and the Tribunal had fixed his monthly income notionally as M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:8:- Rs.12,000/- and added 50% to it in consideration of future prospects in the process of arriving at the multiplicand. 8. In **National Insurance Co. Ltd.** Supra when compensation was claimed for the death of 19 year old Engineering students in a motor accident, the Tribunal had fixed the monthly income notionally at Rs.12,000/- and when an argument was advanced by the insurer against such fixation on the ground of excessiveness, a Division Bench of this Court, of which myself was also a member had repelled the contentions and uphold the fixation observing that various aspects such as, the educational careergraph, future prospects etc are also to be looked into while fixing it. In the case on hand the factors relevant for consideration had been made available by the claimants to the Tribunal in evidence but, it failed to consider those while fixing the monthly income as Rs.7,000/- notionally for computation of compensation for loss of dependency. In the light of the evidence tendered by the parents of the victim that he was a final year student of Diploma in Electronics and that he had already been selected for a M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:9:- job in the interview held at the Campus, the Tribunal ought to have been vigilant of his imminence to get a decent employment immediately on completion of his course and earn a reasonable income had the accident resulting in his death not been occurred. If the aforesaid evidence was duly and properly appreciated, the approach of the Tribunal ought to have been different. Therefore, on the strength of the dictum discussed above and the evidence already on record, this Court finds every justification in fixing the monthly income notionally as Rs.12,000/- in the place of Rs.7,000/- fixed by the Tribunal. 9. The Apex Court in **Reshma Kumari and Others V.Madan Mohan and Another** (2013 KHC 4253) had held that the Tribunal shall follow the table and guidelines stated in Para 42 of **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802(SC)] for determination of compensation in cases of death. 10. It is pertinent to note that a table has been prepared by the Apex Court in **Sarla Verma** supra having regard to three of its earlier decisions viz; **General Manager, Kerala State Road** M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:10:- **Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) & Others** [1994 (2) SCC 176], **U.P.State Road Transport Corporation & others v. Trilok Chandra & others** [1996 (4) SCC 362] and **New India Assurance Co. Ltd. v. Charlie & another** [2005 (10) SCC 720], for guidance in claims made under Section 166 of the Motor Vehicles Act, 1988. The Apex Court has held that the multiplier shown in column (4) of the table must be taken having regard to the age of the deceased, so as to achieve uniformity and conformity in the matter of grant of compensation in death cases. It has also been directed to add 40% to the established monthly income where the deceased was below the age of 40 years. Therefore, the Tribunal undoubtedly has gone wrong in adding 50% to the monthly income fixed notionally in consideration of future prospects to arrive at the multiplicand, while computing compensation for loss of dependency. In the above circumstances, this Court is inclined to correct it by substituting 40% addition to the monthly income, in the place of 50% addition taken by the Tribunal. M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:11:- 11. The Tribunal in the case on hand has adopted the multiplier as 18 on the basis of the age of the deceased in strict compliance with the directions of the Apex Court in **Sarla Verma** and therefore, interference in that regard is strictly uncalled for. For determination of the multiplicand, the deceased being a bachelor, the Tribunal had deducted 50% of the income fixed for computation of compensation in consideration of personal and living expenses in strict compliance of paragraphs 30 to 32 of **Sarla Verma,** which was also reiterated in **Pranay Sethi** and therefore, interference is unwarranted. The Apex Court had concluded in paragraph 61 of **Pranay Sethi** extracted above that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. When viewed in that backdrop this Court was occasioned to notice that the Tribunal failed to follow the guidelines issued by the Apex Court as above while awarding compensation under the conventional heads, which take in loss of estate, funeral expenses and loss of consortium. M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:12:- 12. In view of **Pranay Sethi,** Rs.40,000/- is payable under the head consortium and in view of **Magma General Insurance Co. Ltd. v. Nanu Ram & Ors.** [2018 (11) SCALE 247], each of the parents of the victim are entitled to get Rs.40,000/- under the head Filial Consortium. 13. The Apex Court in **Pranay Sethi** while fixing reasonable figures on conventional heads namely loss of estate, loss of consortium and funeral expenses had also directed that the figures fixed should be enhanced at the rate of 10% in every three years. The judgment in **Pranay Sethi** having been rendered by the Apex Court in the year 2017 and the current year being 2021, in view of the above direction, it is right time to consider 10% enhancement to the sums fixed as payable by the Apex Court under conventional heads. The compensation awarded by the Tribunal under the heads funeral expenses, being Rs.25,000/- an amount excess than directed to be paid by the Apex court is required to be deducted, therefrom. Therefore, figures of compensation payable to the claimants under the conventional M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:13:- heads in view of passage of three years would be as follows : Loss of estate : Rs.16,500/- (Rs.15,000/- + 10%) Funeral Expenses : Rs.16,500/- (Rs.15,000/-+ 10%) & Consortium : Rs.44,000/- (Rs.40,000/- + 10%) 14. In the above modification, Rs.16,800/- (Rs.12,000/- + 40% of Rs.12,000/-) will be the multiplicand and Rs.18,14,400/[Rs.16,800/- x12/2x18] will be the compensation payable under the head loss of dependency. 15. Thus, Rs.6,80,400/- would be payable additionally under the head loss of dependency, Rs.6,500/-, under the head loss of estate and Rs.88,000/- under the head loss of consortium. Rs.25,000/- having been awarded by the Tribunal under the head funeral expenses, Rs.8,500/- is liable to be deducted therefrom and Rs.16,500/- will be payable as compensation under that head. 16. In the above modification, Rs.20,91,400/- [Rs.5,000/+ Rs.1000/- + Rs.16,500/- + Rs.18,14,400/- + Rs.1,50,000/- + Rs.16,500/- + Rs.88,000/-] would be payable as total compensation to the claimants for the death of the victim. M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:14:- 17. As rightly pointed out by the learned counsel for the appellant, the Claimants are not entitled to get interest for the period for which, filing of the Cross Objection was delayed. Though the rate of interest is disputed, this Court is not inclined to interfere with and therefore is maintained. In the result, the appeal as well as Cross Objection are allowed in part. The Claimants are entitled to get Rs.20,91,400/with interest at the rate as directed by the Tribunal in the impugned award from the date of filing of the claim petition till realisation, excluding the period of delay in filing the Cross Objection. **Sd/ MARY JOSEPH, JUDGE.** ttb