MACA No. 1847 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 6TH DAY OF MARCH 2012/16TH PHALGUNA 1933** ## **MACA.No. 1847 of 2011 ( )** ## **------------------------------OPMV.36/2006 of II ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** **APPELLANTS/PETITIONERS:** **---------------------------------** **1. DR.JAYASANKAR M.T., AGED 51 YEARS, S/O. M.S.THANKAPPAN, RESIDING AT NO.3, JAYANTHI NAGAR COLONY, P.T.USHA ROAD, KOZHIKODE-32 NOW, R/AT TC 27/1747, SANTAWANAM VANCHIYOOR, THIRUVANANTHAPURAM.** **2. M.POOJA JAYASANKAR, AGED 21 YEARS, (DATE OF BIRTH 6.5.1989), ATTAINED MAJORITY AND HAVING ADDRESS AT TC 27/1747, SANTAWANAM VANCHIYOOR, THIRUVANANTHAPURAM.** **3. M.POONAM JAYASANKAR, AGED 18 YEARS, (DATE OF BIRTH 19.8.1993), ATTAINED MAJORITY AND HAVING ADDRESS AT TC 27/1747, SANTAWANAM VANCHIYOOR, THIRUVANANTHAPURAM.** **4. MRS.K.S.RADHADEVI, AGED 70 YEARS, W/O. SRI.T.K.ASHOKAN, NO.3, JAYANTHI NAGAR COLONY P.T.USHA ROAD, KOZHIKODE-32, NOW RESIDING AT THACHAPPALLY HOUSE, THRITHALLORE P.O., VATANAPPILLY THRISSUR DISTRICT.** - **BY ADVS.SMT.K.KUSUMAM SMT.SHAMNA** **svs** **...............2/-...** ## **( 2 )** ## **M.A.C.A. NO.1857/2011** ## **RESPONDENTS/RESPONDENTS: -------------------------------------** **1. REMESHAN K.P., S/O. BALAN,(AGE NOT KNOWN), RESIDING AT VALAPPIL THODI, POOZHAYIL ROAD, CHUNGAM, WEST HILL, KOZHIKODE DISTRICT - 673 005 (RC OWNER OF AUTORIKSHAW REGISTRATION NO.KL-11/D 4136).** **2. NEW INDIA ASSURANCE CO. LTD., TRIPURI BUILDING, EAST NADAKKAVU, KOZHIKODE-11. (INSURER OF AUTORIKSHAW BEARING REGISTRATION NO.KL-11/D 4136).** ## **3. K.R.SURESH,** **(AGE AND FATHER'S NAME NOT KNOWN), RESIDING AT KAITHAVALAPPIL HOUSE, KALLAI, KOZHIKODE-673 003). (AMENDED AS PER ORDER IN IA 519/10 DTD.6.10.2010).** **BY ADV. SRI.ZIYAD RAHMAN R2 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ** --------------------------------------------- MACA No.1847 of 2011 --------------------------------------------Dated this the 6[th] day of March, 2012 ## **JUDGMENT** ## Ramakrishna Pillai, J The appellants, who are the legal heirs of one T.A.Ligi who succumbed to the injuries sustained by her in a road traffic accident on 17.2.2005, approached the Tribunal claiming a sum of Rs.1,37,50,000/- as compensation. 2. Allegedly, on the ill-fated day the deceased Ligi was driving her car which collided with an autorickshaw driven by the first respondent. She, who sustained fatal injuries, succumbed to the injuries at about 1.35 p.m. on the same day. The deceased, who was 37 years old at the time of her death, was a Selection Grade Lecturer of the Department of Zoology in Malabar Christian College, Kozhikodu. Allegedly, she was drawing a monthly salary of Rs.22,000/-. The learned Tribunal, finding that the first respondent who was driving the autorickshaw was negligent, the second respondent Insurance Company was saddled with the MACA No.1847 of 2011 2 liability of paying compensation. The learned Tribunal awarded a sum of Rs.35,28,180/- as compensation under various heads. Dissatisfied with the amount of compensation awarded, the claimants have preferred this appeal. 3. We have heard the learned counsel for the appellants and the learned counsel for the second respondent Insurance Company. We have also perused the impugned award. 4. The learned counsel for the appellants would argue that the learned Tribunal has awarded only a meager sum as compensation, without taking into account the future prospects. It was pointed out by the learned counsel for the appellants that the deceased was posthumously awarded Ph.D, by the Calicut University and as per Ext.A10 Government Order, UGC scheme was implemented and as per Ext.A12 Government Order, the pay scale was revised and enhanced to three times within one year of the date of death of the deceased. According to the learned counsel for the appellants, these things were proved by Ext.X1 salary certificate of one Dr.Renjini who also joined the very same college on the very same day in the same department where the deceased was working. Hence, according to the appellants, their MACA No.1847 of 2011 3 case has to be considered as one having extraordinary exceptional circumstance calling for deviation from applying the general principles of multiplier-multiplicand method. The learned counsel for the third respondent, per contra, would argue that the learned Tribunal awarded compensation relying on the principles laid down by the Apex Court in _**Sarla Verma and others**_ v _**Delhi Transport corporation and others**_ (2009(6) SCC 121). It was pointed out that the multiplicand was arrived at on an addition of 50% of actual salary drawn by the deceased after deducting 20% towards income tax and awarded compensation for loss of dependency. Hence, according to the learned counsel for the third respondent, the award does not call for interference. The fact that the deceased was aged 37 years and she was working in Malabar Christian College as Lecturer in Zoology is not in dispute. It is true that the deceased was doing the research at the time of her death and posthumously she was awarded Ph.D. The learned Tribunal, for arriving at the quantum of compensation for loss of dependency, took the salary of the deceased on the date of her death. The learned Tribunal rightly MACA No.1847 of 2011 4 relied on the decision of the Apex Court in _Sarla Verma's case_ and added 50% of the salary drawn by the deceased on the date of her death. As per Ext.A9 certificate, the gross salary of the deceased as on 17.2.2005 was Rs.21,640/-. As the appellants did not produce any document regarding the exact amount of tax paid by the deceased, 20% of the amount was deducted by the learned Tribunal towards the amount of tax that the deceased would have been liable to pay had she been alive. We see no infirmity in the method adopted by the learned Tribunal. The proper multiplier was adopted and the proper amount of compensation was arrived at by the learned Tribunal. 5. Towards loss of dependency, the learned Tribunal found that the appellants are entitled to get a sum of Rs.35,05,680/-. The claim being one under Section 166 of the Motor Vehicles Act, the appellants are entitled to get just compensation. Just compensation, according to us, is fair, moderate and reasonable compensation depending upon the proved circumstance of the particular case. Just compensation cannot be perfect compensation. It can be only a fair compensation. The compensation contemplated under Section MACA No.1847 of 2011 5 166 is not intended to be a windfall to the dependents. The expression “which appears to be just” vests a wide discretion in the Tribunal in the matter of determination of liability, but the determination cannot be arbitrary and must be based on certain data establishing reasonable nexus between the loss incurred and the compensation to be awarded. 6. We hold that the amount of compensation awarded by the learned Tribunal in this case is just as the award amount if invested at a reasonable rate of interest would yield an income some what equivalent to what the deceased was spending towards the appellants who are the dependents, had she been alive. 7. The learned Tribunal, for arriving at the compensation for loss of dependency, has rightly followed the principles laid down by the Apex Court in _Sarla Verma's case._ We do not see any reason to interfere with the same. 8. Being the last court on facts, we made a quick reappraisal of the compensation awarded under other heads also. It is brought to our notice that the first appellant who is the widower re-married subsequently. Appellants 2 and 3 are MACA No.1847 of 2011 6 daughters who are aged 21 and 18 years. Appellants 2 and 3 lost their mother at a time when the care and protection of their mother was most required. As we notice that no amount of compensation was awarded by the learned for loss of love and affection, we are awarding a sum of Rs.50,000/- under that head to the second and third appellants. Since the award under other heads are quite reasonable, we do not interfere with the same. 9. In the result, the appeal is allowed and the award shall stand modified as above. The additional amount awarded shall carry interest at the same rate as awarded by the Tribunal. ## **Sd/- PIUS C.KURIAKOSE, JUDGE** **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** css/ true copy P.S.TO JUDGE