MACA NO. 1878 OF 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** **MACA NO. 1878 OF 2012** **AGAINST THE AWARD DATED 17.02.2012 IN OPMV 194/2009 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANTS/APPELLANTS:** 1 SHEEJA P. JOHN PLATHOTTATHIL HOUSE, AMAYANNOOR (P.O), KOTTAYAM. 2 SHEENA P.JOHN KUNDELKARAYIL HOUSE PAKKIL P.O KOTTAYAM. 3 SHEEBA ALICE JOHN PALATHOTTATHIL HOUSE AMAYANNOOR P.O BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ## **RESPONDENTS/RESPONDENTS:** 1 SUBAIR A.S ATTUVEETTIL, ERATTUPETTA (P.O), KADUVAMOSHY, KOTTAYAM DISTRICT PIN - 686 121. 2 MANOJ PADIPURACKAL ANANTHUR P.O THALAPPALAM PIN - 686 122. 3 THE ORIENTAL INSURANCE CO.LTD. KOTTAYAM PIN - 686 001. SRI.VPK. PANICKER-R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.1878/2012 2 ## **M.R.ANITHA, J** ****************** M.A.C.A.No.1878 of 2012 -------------------------------------------Dated this the 8[th] day of April, 2022 ## **JUDGMENT** The appellants are the claimants in O.P.M.V No.194/2009 on the file of Motor Accidents Claims Tribunal, Kottayam. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of death of Alice, the mother of the appellants/claimants in a motor accident occurred on 22.03.2008 at about 4.00 pm., while she was walking along ManarcaduKidangoor road and when reached near Ayarkunnam Junction, an Auto Rickshaw bearing Registration No. KL-5/Q 8514 driven by the 2[nd] respondent knocked down the deceased, thereby she sustained grievous injuries. Immediately she was taken to Medical College Hospital, from there she succumbed to the injuries. Total compensation of Rs.5,14,000/- has been claimed which was limited to 5,00,000/-. M.A.C.A.No.1878/2012 3 2. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd ] respondent, the driver of the Auto Rickshaw. The 1[st] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. 3. Before the Tribunal, 1[st] respondent the owner of the offending vehicle remained ex parte and the 2[nd] respondent driver of the Auto Rickshaw filed written statement denying the rashness and negligence attributed against him in the claim petition. Appellants/claimants were put to strict proof regarding the age, income and occupation of the deceased. It is further contended that he was having valid driving license to drive the AutoRickshaw. 4. 3[rd] respondent filed written statement admitting insurance coverage with respect to the offending vehicle and denying the rashness and negligence on the part of the 2[nd] respondent. It is contended that the AutoRickshaw was not having any fitness certificate during the relevant time and hence 3[rd] respondent is not liable to indemnify the 1[st] respondent. 1[St] M.A.C.A.No.1878/2012 4 and 2[nd] appellants were married and are living with their husbands and they are not dependents of the deceased. 3[rd] appellant is working and living on her own income and she is not a dependent of the deceased. 5. Exts. A1 to A9 were marked from the side of the appellants/claimants. There was no oral evidence from either side. 6. On evaluating the pleadings and documents produced from the side of the claimants, the Tribunal found 2[nd] respondent is responsible for the accident. Hence 3[rd] respondent is held liable to indemnify the 1[st] respondent insured. Tribunal awarded a total compensation of Rs.3,06,250/- under various heads. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants approach this Court in appeal for the various grounds stated in the memorandum of appeal. Though service is complete against 1[st] respondent, there was no appearance. Service of notice as against 2[nd] respondent is dispensed with at the risk of the M.A.C.A.No.1878/2012 5 appellant. Adv.V.P.K.Panicker, the Standing Counsel appeared on behalf of the 3[rd] respondent. 8. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 9. According to the learned counsel for the appellant, claimant was working as Peon in KSFE and her monthly income was Rs.7,952/- as per Ext.A7 salary certificate. It is also contended that the claimant having two months more service since she was 57 years 10 months old at the time of death. But no amount was awarded towards loss of salary for two months. But the Tribunal taken her income notionally as Rs.3,500/- which according to him is very low. It is also his contention that in **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. It is also contended that the compensation awarded M.A.C.A.No.1878/2012 6 under conventional heads also is not as per the current position of law and hence he seeks for enhancement on all heads. 10. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 11. Admittedly, the deceased had only two more months' servce since she was 57 years and 10 months old at the time of accident. So, though the learned counsel for the claimants would vehemently contend that the income as on the date of incident ought to have been taken by the Tribunal to compute the loss of dependency as has been rightly contended by the learned counsel for the insurer she would have only two months' more service and thereafter she would have retired on superannuation. 12. In **Puttamma & Others v. K.l. Narayana Reddy & Another (2013 (15) SCC 45)** it has been held by the Apex Court that in determination of compensation in accident claims case under Section 166 of the Act, the multiplier method followed M.A.C.A.No.1878/2012 7 in **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** which is affirmed by a three-judge Bench of the Apex Court in **Reshma Kumari & Ors. v. Madan Mohan & Anr., ((2013) 9 SCC 65)** is to be followed deprecating the practice of split multiplier. It is also held therein that 1988 Act does not envisage application of split multiplier. In the absence of any specific reason and evidence on record, the Tribunal or the Court should not apply split multiplier on routine course and should apply the multiplier as per **Sarla Verma** (supra) as affirmed in **N.Jayasree & Ors. v. Cholamandalam MS General Insurance Company Ltd. (2021 0 Supreme (SC) 627)** . In that, Apex Court deprecated the application of split multiplier by the High Court. 13. In this particular case, since the deceased was having only two more months' service, there would be no justification in taking her monthly salary as per Ext.A7 as the multiplicand for the entire period of 9 years. So, contention of the learned counsel for the claimants to take the salary covered by Ext.A7 for M.A.C.A.No.1878/2012 8 the calculation of dependency cannot be accepted. The learned counsel for the insurer, on the other hand, would contend that only half of salary as on the date of accident and by giving 15% enhancement towards future prospects alone can be taken for awarding compensation towards loss of dependency. As per Ext.A7 the last pay of the deceased was Rs.7,952/-, half of which would come to Rs.3,976/-. 14. As rightly contended by the learned counsel for the claimants, this amount would be far below than the notional income of a coolie as per **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** . So, that, according to me, would be irrational and illogical. Merely because deceased happened to be a Government servant, the claimants should not be prevented from getting the benefits of even a coolie due to the death of their mother. The 3[rd] claimant was unmarried. Her father was also no more. If the deceased was self-employed or a coolie, monthly income notionally could have been taken as per **Ramachandrapa** followed by **Syed Sadiq** as Rs.6,500/- in the M.A.C.A.No.1878/2012 9 year 2008. So, taking those factors into account, I am of the considered view that the monthly income of the deceased can notionally be taken as Rs.6,500/- inspite of Rs.3,500/- taken by the Tribunal. If that be so, by giving 15% enhancement of the said amount, i.e. Rs.6,500 x 15/100 = Rs.975/-, the total amount would be Rs.6,500 + Rs.975 = Rs.7,475/-. Deducting Rs.2,491 [Rs.7,475 x 1/3] from Rs.7,475 towards personal and living expenses, the balance amount would be Rs.4,984/[Rs.7,475 – Rs.2,491). 15. As per **Sarla Varma v. Delhi Transport Corporation (2009 (6) SCC 121)** which has been followed in **National Insurance Company Limited v. Pranay Sethi and** **Ors (2017 (4) KLT 662)** it has been held that the proper multiplier to be applied is 9 for 56 to 60 years. Thus, the amount under the head loss of dependency would be **Rs.5,38,272/-** [Rs.4,984 x 12 x 9]. From that, Rs.2,52,000/-, the amount already awarded by the Tribunal is to be deducted. Then the balance amount would be **Rs.2,86,272/-** [Rs.5,38,272 – M.A.C.A.No.1878/2012 10 Rs.2,52,000]. 16. Next contention of the learned counsel for the claimants is with regard to the compensation awarded under conventional heads. In **Pranay Sethi** , Constitution Bench has fixed the compensation under the conventional heads, as Rs.15,000/- each towards loss of estate and funeral expenses and Rs.40,000/- towards loss of consortium. That has been followed in **Magma General Insurance Co. Ltd** ., with an expansion of the consortium as spousal consortium, ‘parental consortium’, and ‘filial consortium’. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse and parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. M.A.C.A.No.1878/2012 11 17. The Apex Court in **Rasmita Biswal & Others v. Divisional Manager, National Insurance Company Ltd., & Another (CDJ 2021 SC 1024** ) has awarded 10% increase to the conventional heads taking into account the directions in **Pranay Sethi** for 10% enhancement after every three years. Accordingly the claimants in that case were awarded 16,500/each towards loss of estate and funeral expenses and Rs.44,000 towards spousal consortium by giving 10% enhancement to Rs.15,000/- each as well as to Rs.40,000/-. The accident in that case, was on 9.5.2013. In **pranay Sethi** the Apex Court while declaring 10% enhancement in every three years did not make any reference with respect to the date of accident also. Hence claimants are entitled to get 10% escalation of conventional heads. 18. Claimants 1 and 2 are married daughters and are living separate. 3[rd] claimant alone is the unmarried daughter who is entitled to get parental consortium. 19. So claimants are entitled to get Rs.16,500/- under the M.A.C.A.No.1878/2012 12 head 'loss of estate', Rs.44,000/- to 3[rd] claimant under the head 'loss of consortium' as well as Rs.16,500/- towards funeral expenses, thus a total amount of Rs.77,000/- (Rs.16,500 + 44,000 + Rs.16,500). Tribunal already awarded Rs.6,000/towards funeral expenses, deducting that amount, balance would be Rs.10,500/- (Rs.16,500 – Rs.6000). Rs.10,000/- has been awarded towards loss of estate. Balance would be Rs.6,500/(Rs.16,500 – Rs.10,000). Once the compensation is awarded under the head of consortium, claimants would not be entitled to get any amount towards loss of love and affection (See **The New** ## **India Assurance Company Limited v. Somwati (2020 (9)** **SCC 644** ). So, Rs.20,000/- awarded towards loss of love and affection to be deducted i.e. Rs.44,000 – Rs.20,000 = Rs.24,000-. So balance amount under conventional heads would be **Rs.41,000/-** [Rs.10,500 + Rs.6,500 + Rs.24,000]. Thus, the claimants are entitled to get an amount of Rs.3,27,272/[ 2,86,272 + 41,000] towards enhanced compensation which is rounded off to **Rs.3,27,300/-** . M.A.C.A.No.1878/2012 13 20. In the result appeal allowed. The claimants are entitled to realise enhanced compensation of **Rs.3,27,300/-** (Rupees Three lakhs twenty seven thousand three hundred only) with interest at 7.5% from the date of petition till realisation. The 3rd respondent, the Insurance Company, shall satisfy additional compensation granted in this appeal together with interest deducting the liability of the appellants/claimants to pay balance court fee within a period of two months from the date of receipt of certified copy of this judgment. Enhanced compensation shall be apportioned in the ratio of 30 : 30 : 40 among the claimants 1 to 3/appellants 1 to 3 respectively. The claimants shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge