MACA No. 1638 of 2015 & MACA No. 2715 of 2015, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **MACA.No.1638 OF 2015** **AGAINST THE AWARD DATED 06-03-2015 IN O.P.(M.V) 637/2014 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS :-** **1 CHANDRAMATHY AGED 68 YEARS W/O.P.K.KUMARAN, CHANDRA NIVAS, UMMATHADATHIL PO, NIT, KOZHIKODE. 2 SAVITHA.K AGED 43 YEARS D/O.P.K.RAJENDRAN, "SRUTHI HOUSE", PUTHIYEDATH, P.O.PUNNASSERY, KOZHIKODE. 3 SRUTHI.C.N AGED 19 YEARS D/O.P.K.RAJENDRAN, "SRUTHI HOUSE", PUTHIYEDATH, P.O.PUNNASSERY, KOZHIKODE. 4 ATHULYA MINOR REP. BY MOTHER SAVITHA.K, D/O.P.K.RAJENDRAN, "SRUTHI HOUSE", PUTHIYEDATH, P.O.PUNNASSERY, KOZHIKODE. DOB:28.7.1999 (MINOR REP. BY MOTHER SAVITHA.K) BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.T.K.SANDEEP** ## **RESPONDENTS/RESPONDENTS :-** - **1 P.K.MUHAMMED S/O.IBRAHIM, PUNATHUM KUZHIYIL (H), P.O.MADAVOOR, KOZHIKODE 673 583.** - **2 ABDUL RAFEEQUE SO.ABDULLA MAKKUZHIYIL (H) PADANILAM PO, KOZHIKODE 673 571.** - **3 NATIONAL INSURANCE COMPANY LTD. 2ND FLOOR, NOOR COMPLEX, ARAUIDTHPALAM, NEAR SBT,** **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **2** **MAVOOR ROAD, KOZHIKODE 673 661. 4 P.MUNLAN NO.114 NELLUMANDI STREET MUTHIRA PALAYAM, PONDICHERY, PIN 605 001. 5 MOIDEDNKUTTY SO.KUNHIKOYA VILAPPAVIL H PARANNUR PO, NARIKKUNI, KOZHIKODE 673 585. 6 UNITED INDIA INSURANCE CO. LTD SEEMA TOWERS, BANK ROAD, MAVOOR ROAD JUNCTION, KOCHIKODE - 673 661. R6 BY ADV. SRI.GEORGE CHERIAN SR. R6 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SMT.LATHA SUSAN CHERIAN R3 BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2019, ALONG WITH MACA.2715/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** **MACA.No.2715 OF 2015** **AGAINST THE AWARD DATED 06-03-2015 IN O.P (MV) 637/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/6TH RESPONDENT :-** **THE UNITED INDIA INSURANCE CO.LTD KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM.** **BY ADVS.** **SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENT/S:** **1 CHANDRAMATHY W/O.P.K.KUMARAN, CHANDRA NIVAS, UMMATHANDATHIL P.O., NIT, KOZHIKODE-673003.** **2 SAVITHA K. W/O.P.K.REJENDRAN, 'SRUTHI HOUSE', PUTHIYEDATH P.O., PUNNASSERY, KOZHIKODE-673003.** **3 SRUTHI C.N. D/O.P.K.RAJENDRAN, 'SRUTHI HOUSE', PUTHIYEDATH P.O., PUNNASSERY, KOZHIKODE-673003.** **4 ATHULYA MINOR DOB:28-7-1999, REPRESENTED BY MOTHER, SAVITHA K., W/O.P.K.RAJENDRAN, 'SRUTHI HOUSE', PUTHIYEDATH P.O., PUNNASSERY, KOZHIKODE-673003.** **R1 BY ADV. SRI.ARJUN SREEDHAR** **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **4** **R1 BY ADV. SRI.ARUN KRISHNA DHAN R1 BY ADV. SRI.JOSEPH GEORGEMULLAKKARIYIL R1 BY ADV. SRI.P.S.SREEDHARAN PILLAI R1 BY ADV. SRI.T.K.SANDEEP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2019, ALONG WITH MACA.1638/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **5** ## **MACA Nos.1638 & 2715 of 2015** ## **JUDGMENT** M.A.C.A.No.1638 of 2015 is by the claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal and M.A.C.A.No.2715 of 2015 is by the insurer in the said proceedings. 2. One P.K.Rajendran, aged 53 years, died in a motor accident took place on 01.03.2014. He was an overseer in the service of the Kerala State Electricity Board Ltd. His mother, wife and two daughters were the claimants in the proceedings. Rs.1,00,00,000/- was the claim made in the proceedings. As against the said claim, the Tribunal has granted to the claimants a sum of Rs.40,22,290/- by way of compensation. According to the claimants, the compensation granted is inadequate and according to the insurer, the compensation is excessive. Hence these appeals. 3. Heard the learned counsel for the parties. 4. The fact that the deceased was an overseer in the service in the Kerala State Electricity Board Ltd. is not in **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **6** dispute. There is also no dispute to the fact that the deceased was drawing Rs.48,387/- by way of salary at the time of accident. The Tribunal has reckoned the salary of the deceased only at Rs.38,710/- after deducting 20% towards income tax. As it is admitted that the deceased was an income tax assessee, the Tribunal cannot be found fault with for having deducted 20% of the salary towards income tax. As the multiplier to be applied for computing compensation for loss of dependency in the case of the deceased being '11', as it was certain that the deceased would retire within 3 years, the Tribunal should have applied the split multiplier method. As the Tribunal has not applied the said method, the compensation payable to the claimants for loss of dependency has to be re-computed applying the said method. In other words, loss of dependency has to be computed for the period during which the deceased would have been in service based on the salary income, treating the remaining period of service as the multiplier and for the period after the service, applying the remaining multiplier, on a notional income to be arrived at. As the remaining period of service of the deceased was 3, the multiplier to be applied for the initial phase is 3 and the multiplier to be applied to the latter phase is 8. If **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **7** compensation is worked out on that basis, in the light of the decision of the Apex Court in **National Insurance Company Ltd V. Pranay Sethi** [2017(4) KLT 662 (SC)], the same would come to Rs.12,01,946/- (Rs.38,710x115/100x12x3x3/4) for the first phase. If compensation for the second phase is worked out on that basis, taking half of the salary income as notional income, the same would come to Rs.15,32,916/(Rs.19,355x110/100x12x8x3/4). The total compensation on that head, therefore, would come to Rs.27,34,862/-. The Tribunal has granted in its place, a sum of Rs.38,32,290/- by way of compensation. Rs.10,97,428/- granted by the Tribunal under that head is therefore in excess. 5. Towards funeral expenses, loss of estate and loss of consortium to the wife of the deceased, in the light of the decision of the Apex court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], the maximum compensation that could have been granted was Rs.70,000/-. The Tribunal has granted in its place, a sum of Rs.83,000/-. Rs.13,000/- granted by the Tribunal is also therefore in excess. 6. The Tribunal has granted only a sum of Rs.5,000/- towards compensation for pain and sufferings. **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **8** According to me, having regard to the fact of the accident is one that took place in the year 2014, the Tribunal should have granted Rs.15,000/- under that head. The claimants are therefore entitled to a sum of Rs.10,000/- more under that head. Towards compensation for loss of love and affection, having regard to the decision of the Apex Court in in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), according to me the Tribunal should have granted a sum of Rs.40,000/- to the mother of the deceased and 50,000/- each to the two daughters. The total compensation payable under that head would therefore come to Rs.1,40,000/-. The Tribunal has granted only a sum of Rs.1,00,000/- under that head. Therefore, they are entitled to an additional compensation of Rs.40,000/- under this head. 7. The net excess compensation granted by the Tribunal, in the circumstances, would come to Rs.10,60,428/-. The compensation granted by the Tribunal, in the circumstances is liable to be re-fixed at Rs.29,61,862/(Rs.40,22,290- Rs.10,60,428). In the result, these appeals are disposed of refixing the quantum of compensation granted by the Tribunal at Rs.29,61,862/-. **MACA.Nos.1638 OF 2015 & 2715 OF 2015** **9** All interlocutory applications in the appeals are closed. **Sd/-** # **P.B.SURESH KUMAR JUDGE** **SMA**