MACA No. 1950 of 2013 & Cross Objection No.16 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939** **MACA.No. 1950 of 2013 () -------------------------** ## **AGAINST THE AWARD IN OPMV 167/2009 of M.A.C.T.,KOTTAYAM DATED 06-02-2013** **APPELLANT/RESPONDENT NO.2:** **----------------------------** **ICICI LOMBARD GENERAL INSURANCE COMPANY MUMBAI, NOW REPRESENTED BY MANAGER LEGAL, ICICI LOMBARD GENERAL INSURANCE COMPANY, KANNKERY ESTATE SHANMUGHAM ROAD, ERNAKULAM.** ## **BY ADV. SRI.AGI JOSEPH** ## **RESPONDENTS/PETITIONERS AND 1ST RESPONDENT:** **---------------------------------------------** ## **1. KUNJANNAMMA.M** - **LAYIKARY HOUSE, SACHIVOTHAMAPURAM PO, KURICHY CHANGANACHERRY-686549 (1ST PETITIONER IN THE ORIGINAL PETITION)** **2. TOMY JOSEPH - MINOR REPRESENTED BY NEXT FRIEND KUNJANNAMMA.M LAYIKARY HOUSE, SACHIVOTHAMAPURAM PO, KURICHY CHANGANACHERRY -686549(2ND PETITIONER IN THE ORIGINAL PETITION)** **3. TEEYA RANI JOSEPH TOMY JOSEPH - MINOR REPRESENTED BY NEXT FRIEND KUNJANNAMMA. LAYIKARY HOUSE, SACHIVOTHAMAPURAM PO, KURICHY CHANGANACHERRY -686549(3RD PETITIONER IN THE ORIGINAL PETITION)** **4. P.J. BABY PALOOPARAMPIL HOUSE, KUMARANALLOOR PO, KOTTAYAM -686016 (FIRST RESPONDENT IN THE ORIGINAL PETITION)** **R1-R3 BY ADV. SRI.V.B.PREMACHANDRAN R1-R3 BY ADV. SRI.T.K.KOSHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2017, ALONG WITH CO. 16/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & SHIRCY.V,JJ** ## **-----------------------------------** **M.A.C.A.No. 1950 of 2013** **& Cross Objection No.16 of 2017 -----------------------------------------------Dated this the 23[rd] day of May, 2017** ## **JUDGMENT** ## C.K.Abdul Rehim,J. The second respondent in O.P(MV)No.167/2009 on the files of the Motor Accidents Claims Tribunal, Kottayam is the appellant herein, challenging the quantum of compensation awarded by the Tribunal as excessive. The petitioners/claimants 1 to 3 before the Tribunal, had filed Cross-Objection seeking enhancement of the amount of compensation awarded. 2. In the accident in question, which occurred on 11.10.2008, the deceased sustained very serious injuries to which he had succumbed to death on 27.10.2008. With respect to the findings of the Tribunal that the Maca 1950 of 2013 & C.O.No.16/2017 2 accident occurred due to the negligence of the driver of the offending vehicle, which is insured with the appellant, and hence the appellant is liable to pay the amount of compensation, there is no dispute in the appeal. The only challenge of the appellant is that the amount awarded under different heads are excessive and that the tribunal had awarded litigation cost, erroneously.. The crossobjector is contending that the amount awarded under various heads are inadequate and insufficient. 3. The deceased was working as a Ration Inspector in the Civil Supplies Department of the State Government. He was drawing a monthly salary of Rs.14,006/-, at the time of his death. He left behind his wife, two minor children and aged mother as dependants. Subsequently, during pendency of the claim petition, the 4[th] petitioner/ claimant who is the mother of the deceased died. The Tribunal found that, as evidenced from Ext.A14, the salary of the deceased would have been Maca 1950 of 2013 & C.O.No.16/2017 3 enhanced to Rs.22,856/- with effect from 1.7.2009, had he been alive. On the basis that the deceased was aged 50 years and 11 months, the Tribunal had adopted a multiplier of 11. Taking his monthly income as Rs.22,856/-, compensation for loss of dependency was calculated, after deducting 1/3[rd] towards personal expenses. The appellant herein is mainly assailing the method adopted by the Tribunal for computing the compensation for loss of dependency. It is contended that, the Tribunal went erred in accepting the future monthly salary as the basis. It is also contended that the Tribunal went wrong in accepting the multiplier of 11, without considering the fact that the deceased would have retired at the age of 55 years and there was only four years service left for him. On the other hand, learned counsel for the Cross-Objector contended that, adoption of Rs.22,856/- as monthly salary is on the basis of the convincing evidence produced through Ext.A14 certificate. Maca 1950 of 2013 & C.O.No.16/2017 4 It is further contended that the multiplier adopted by the Tribunal is wrong and it ought to have been 13, based on the fact that the deceased had not completed 51 years as on the date of death. It is further contended that the deduction made on account of personal expenses ought to have been 1/4[th] instead of 1/3[rd] , since the number of dependants left at the time of death was 4, as held by the Honourable Supreme Court in _**Sarla Verma vs. Delhi Transport Corporation (2010(2) KLT 802(SC).**_ _4._ While considering the rival contentions on the aspect of computation of the loss of dependency, we find merit in the arguments raised on either side. It is true that the Tribunal went wrong in accepting the future salary as the basis. Instead the Tribunal ought to have considered the salary as on the date of death and addition should have been made towards future prospects. Going by the dictum in **Sarla Varma's case** (supra) and in **Rajesh vs. Rajbir Singh (2013 (3)KHC 212)** we are of Maca 1950 of 2013 & C.O.No.16/2017 5 the opinion that the Tribunal should have added 50% towards future prospects. 5. Considered on the above said basis, the monthly income of the deceased should have been adopted as Rs.21,009/- (14006+50%). Even though the 4[th] petitioner/claimant died during pendency of the claim petition, it is to be held that the deceased had left behind 4 dependants at the time of his death. The correct deduction ought to have been made is 1/4[th] of the monthly income, which is computed as above. Therefore the multiplicand to be adopted is Rs.15,757/(21009x3/4). The Tribunal had specifically found that the date of birth of the deceased was 25.11.1957. Therefore, as on the date of death, he has not completed 51 years. Hence the correct multiplier which ought to have been adopted is 13. It is evident that the deceased ought to have continued in service only for a period of 6 years, had he been alive, the age of retirement being 56. Hence the Maca 1950 of 2013 & C.O.No.16/2017 6 Tribunal could not have computed the loss of dependency for the entire period of the multiplier. After retirement the deceased would have been getting pension, which can roughly be calculated as 50% of the then salary. But he could have earned more from any probable postretirement employment. The basis for such loss of income for post-retirement employment can be taken as 50% of the salary. Hence for the period after retirement 50% of the multiplicand can be safely adopted for the purpose of computation. Hence we are inclined to adopt a split multiplier method. For the first six years the compensation for loss of dependency has to be worked out at Rs.11,34,504/- (15757x12x6). For the remaining 7 years, the multiplicand need to be fixed at Rs.7879/(15757 2). Computed on the above basis, the dependency for the remaining period of 7 years will be Rs.6,61,836/(7879x12x7). Thus the total compensation under the head of loss of dependency has to be reworked at Maca 1950 of 2013 & C.O.No.16/2017 7 Rs.17,96,340/-, which will in effect result in a reduction of the total compensation by a sum of Rs.2,14,988/-. 6. Learned counsel for the Cross Objectors contended that the amounts awarded by the Tribunal under different other heads like, expenses of transportation, funeral expenses, compensation for love and affection, loss of consortium etc: are insufficient and inadequate. We take note of the fact that the deceased was treated initially at the Medical College Hospital and subsequently at the Medical Trust Hospital, Ernakulam. So the expenses for his transportation and carriage of the dead body which would have been incurred is more than Rs.6,000/-. We reasonably refix the amount at Rs.15,000/-, which will entitle the claimants for an enhancement of Rs.9,000/- on that count. 7. We are of the opinion that the amount of Rs.50,000/- awarded towards the loss of love and affection need to be enhance to Rs.1 lakh. Therefore, the Maca 1950 of 2013 & C.O.No.16/2017 8 Cross Objectors will be entitled for a further addition of Rs.50,000/-. The amount of Rs.25,000/- awarded under the head of loss of consortium is too disproportionate and inadequate. We refix the amount of Rs.1 lakh and thereby allow a further enhancement of Rs.75,000/-. The amount of funeral expenses awarded is also insufficient. We are inclined to enhance the same to Rs.25,000/-. Accordingly the Cross Objectors will be entitled to a further enhancement of Rs.19,000/-. We do not find any ground warranting interference with respect to the amounts awarded under various other heads. Hence the Cross Objectors/claimants 1 to 3 are entitled for a total enhancement of Rs.1,53,000/-. When the said amount is set off against the reduction ordered, the net amount by which the award need to be reduced is Rs.61,988/(21,4988-15,3000). 8. Another ground of challenge against the impugned award is that the Tribunal went erred in Maca 1950 of 2013 & C.O.No.16/2017 9 awarding the litigation cost, despite there being no specific provision for the same. On a perusal of the impugned award it is evident that the Tribunal had allowed the litigation cost, including Advocate fee as provided in the Civil Rules of Practice, as applicable to original suits. According to learned counsel for the appellant, the awarding of the litigation cost as in the case of civil suits, relying upon provisions of the Civil Rules of Practice, is illegal, because the Tribunal is not a court subordinate to the High Court and that there is no specific provision for awarding cost in the Motor Vehicles Act or the Rules made thereunder. 9. The above said question came up for consideration before this court in the decision in **United India Insurance Company Ltd. vs. Padmini Amma (1986 KLT 581).** The award of advocate fee as provided for suits was challenged in an original petition filed before this court. It was held that MACT is not a Maca 1950 of 2013 & C.O.No.16/2017 10 court and it is not a court subordinate to the High Court either. Therefore it is held that the Rules regarding fee payable to Advocates, framed by the High Court, which relates to fees payable to the legal practitioners in the High Court and in the subordinate courts, will not apply to the Tribunals as such. But it is observed that, it is only by way of an analogy and rule of guidance that the provisions of the said Rules are referred to and relied upon broadly for the purpose of awarding Advocates fee by the Tribunals. Hence it is held that award of cost is not totally unauthorised or unfair. 10. Following the decision in **Padmini Amma's case** (cited supra) a Division Bench in **New India Assurance Company Limited vs. Koyammu (1991** **(1) KLT 320)** held that, since the Claims Tribunal is not a court and it is not a court subordinate to the High Court, the Rules made by the High Court in exercise of the powers conferred by section 122 of CPC are not applicable Maca 1950 of 2013 & C.O.No.16/2017 11 to petitions filed under section 110A of the Motor Vehicles Act. But it was observed that, awarding of cost is in the discretion of the Tribunal. The general rule is that a successful party is entitled to get costs incurred by him unless he is guilty of misconduct or negligence or there is any other reason for disallowing costs. There is no reason why the general rule cannot be extended to the claim petitions filed under the Motor Vehicles Act. A successful party in a claim petition before the Tribunal has to be paid costs incurred in the petition. A successful claimant should be allowed the court fee paid by him. There may be instances where the claimant has to incur huge expenditure in summoning Medical Officers and Medical Experts to prove the nature of injuries and the disability caused. Some of them may have to be paid travelling expenses and daily allowance and if they are coming from distant places a considerable amount has to be spent in this count. Such evidence is necessitated only to Maca 1950 of 2013 & C.O.No.16/2017 12 prove the claim and to enable the claimant to get adequate compensation. The Tribunal has therefore to award the expenses incurred for summoning witnesses and for producing or causing production of documents. The claimant has to seek legal advice in instituting the proceeding and in prosecuting the same. He has necessarily to incur expenses towards Advocate fee. Provision has therefore to be made in the award for the same. However, the court held that, the ad-valorem fee prescribed for original suits cannot ipso facto be made applicable to the claim petitions. 11. In **Jeena vs. Satheesh Babu (2011 (3)KLT 943)** the question mentioned above had again came up for consideration before this court. After referring to the decisions in **Padmini's case** and in **Koyammu's case** (cited supra) a Division Bench of this court held that, MACT has jurisdiction to award costs and while directing payment of costs the Tribunal should follow the principles Maca 1950 of 2013 & C.O.No.16/2017 13 underlying and procedure prescribed under Rule 195 and 196 of the Civil Rules of Practice. Taxable cost must be ascertained by reference to the Principles under Rule 195 of Civil Rules of Practice and the Advocates fee as stipulated under the Advocate's Fees Rules must be included in the costs certified by Tribunal. This court specifically observed that the procedure that has to be followed is as prescribed under Rule 196, though those provisions are not made specifically applicable to the Tribunals. The Division Bench while concluding the judgment in **Jeena's case (supra)** issued directions to the effect that, the Advocate fee as stipulated under the Advocate's Fees Rules must be included in the costs certified by the Tribunal. In ascertaining the Advocates fees payable, Rules 6(2) and (9) of the relevant Rules shall be followed by the Tribunal. It further directed that the cost shall be certified and appended to the free copy of the award and to the certified copy issued to the Maca 1950 of 2013 & C.O.No.16/2017 14 parties under section 168 of the Motor Vehicles Act. 12. Eventhough learned counsel made strenuous attempts to question correctness of the above cited decisions and canvassed for a reference of the issue to be decided by a Full Bench, we are not inclined to accept those contentions in view of the position remaining settled as above. Therefore we do not find any valid ground to interfere with the award on the aspect of allowing litigation cost. In the result, the appeal as well as the Cross Objection are hereby disposed of by reducing the total compensation awarded by the Tribunal from Rs.22,87,143/- to Rs.22,25,155/- (22,87,143-61,988). The terms of the award with respect to interest and costs will remain as such. The appellant insurer will deposit the balance amount within a period of two months. On such deposit the Cross Objectors will be entitled to approach the Tribunal seeking withdrawal and the Maca 1950 of 2013 & C.O.No.16/2017 15 Tribunal shall pass appropriate orders without further delay. **C.K.ABDUL REHIM JUDGE** **SHIRCY.V JUDGE** pmn/- smm