MACA No. 2242 of 2015 [C] & Cross Objection No. 98 of 2018

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940** **MACA.No. 2242 of 2015** **---------------------** ## **OP(MV) 425/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA.** **........** ## **APPELLANT/3RD RESPONDENT:** **-------------------------** **THE ORIENTAL INSURANCE CO.LTD., THIRUVALLA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.** **BY SRI.GEORGE CHERIAN (SENIOR ADVOCATE) ADVS. SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** **RESPONDENT(S)/CLAIMANTS:** **------------------------** **1. JOSE EAPEN, S/O. V.E. EAPEN, VARAPURATHU HOUSE, THOTTABHAGOM P.O, THIRUVALLA, PIN - 689 001.** **2. TONY JOSE, S/O. JOSE EAPEN, VARAPURATHU HOUSE, THOTTABHAGOM P.O, THIRUVALLA, PIN - 689 001.** **3. TITTU EAPEN JOSE, S/O. JOSE EAPEN, VARAPURATHU HOUSE, THOTTABHAGOM P.O, THIRUVALLA, PIN - 689 001.** **BY ADV. SRI.S.SUBHASH CHAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/ 10.08.2018.** ## **K. VINOD CHANDRAN, J. ---------------------------------M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018 ---------------------------------Dated this the 25[th] day of July, 2018** ## **JUDGMENT** The appeal and cross objection are those filed by the Insurance Company and the claimant. An employee of the Minor Irrigation Department, under the State of Kerala, lost her life in an accident involving a tipper lorry, which hit the motor cycle in which the deceased was traveling pillion. The appeal of the Insurance Company is with respect to the quantum and so is the cross-appeal by the claimants, one for reduction and the other for enhancement. 2. The learned Senior Counsel appearing for the Insurance Company has specifically challenged the quantum of compensation under loss of dependency, funeral expenses, loss of love and affection, **M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018** **2** consortium and estate. The learned Counsel appearing for the respondent seeks 100% future prospects to be taken for loss of dependency, especially considering the fact that there could be revision of salary in the State Government service, which would be to the extent of about 100%. If not 100, at least 75% enhancement would be possible for the future prospects, is the submission. The learned Senior Counsel, however would counter the arguments of the claimants pointing out that the deceased, whom the claimants asserted to be 46 years old, had only 10 years left of state service. After that the future prospects has to be at 50% of the income; being the loss of pension alone. 3. Looking at the other heads challenged by the Insurance Company other than loss of dependency, this Court is of the opinion that there has to be a reduction made in all those heads going by the **M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018** **3** binding precedent in _**National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350].**_ Funeral expenses will have to be reduced to Rs.15,000/-, loss of consortium to Rs.40,000/- and loss of estate to Rs.15,000/-. Though there is no specific head under loss of love and affection as is discernible from the various precedents of the Hon'ble Supreme Court, a Division Bench of this Court in _**Jyni and Others v. Raphel P.T. & Others [2016 (2) KHC 870]**_ allowed compensation under that head _**.**_ Even then this Court finds that the amounts granted by the Tribunal under that head is on the higher side and loss of love and affection can be compensated with Rupees One lakh. The award will stand reduced to that extent. 4. On the question of loss of dependency, the claimants seek an enhancement, while the Insurance Company seeks for reduction. Both argue their **M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018** **4** respective positions on the basis of the computation of income and the future prospects that could be applied. It is also submitted by the learned Counsel for the respondents that the Tribunal has found the age of the claimant to be 41. The Tribunal merely went by the post-mortem certificate, but even then applied the multiplier for 46. 5. There is nothing in evidence to show that the deceased was 41 at the time of death. Even going by the claim petition, the age of the deceased is shown as 46. The Tribunal had merely mentioned the age to be 41 as per the post-mortem certificate, which cannot be relied on to grant compensation or adopt a suitable multiplier. When there was a clear admission of age, the claimants ought to have with sufficient evidence proved the age of the deceased, who admittedly was a state **M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018** **5** government employee. Obviously they decided to bank upon the lesser age shown in the post mortem certificate, which is only an approximation. Hence the age can only be adopted as 46; which is admitted in the claim petition. As for the multiplier to be applied, when 46 is taken as the age, the deceased had a period of service only for another 10 years. Then there has to be a split multiplier applied of 10 & 3 as has been laid down in _**Oriental Insurance Co. Ltd. v. Valsa [2015 (1) KLT 781].**_ 6. The contention of the respondent that 100% multiplier has to be applied is based on the decision of the Hon'ble Supreme Court in _**Sureshchandra Bagmal Doshi and Ors. v. The New India Assurance Company Limited and Ors. [2018 (5) SCALE 759]**_ . The Hon'ble Supreme Court in that case was considering the death of a 25 year old, who had **M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018** **6** risen up in the organisation fast, in a period of 7 years, ie. between 18 & 25. The salary of the deceased had also been considerably enhanced from Rs.14,000/- to Rs.17,000/- in that short period. This Court does not find any such exceptional circumstance in the present case. Further it has to be noticed that the decision of the Hon'ble Supreme Court was also relying on _**Pranay Sethi**_ [supra], wherein it was observed that “t _he percentage for calculating future rise in income is no bar to future prospects being taken at a higher level where the assessment is based on actual evidence led to the satisfaction of the Tribunal/the Court that the future prospects were higher than the standard percentage_ ”. There is absolutely no evidence led in the present case and only a salary certificate was produced. In the cited decision, there were two salary certificates produced to show **M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018** **7** the increase in salary over a short period of time. 7. In the present case the claimants did not even mount the box to depose as to the future prospects of the deceased, in so far as an enhancement in salary in excess of that which has been laid down by a structured table by the Hon'ble Supreme Court in _**Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. [(2009) 6 SCC 121]**_ and followed subsequently in all the decisions. Hence this Court is of the opinion that no enhancement is possible on future prospects other than 30% as laid down by the Hon'ble Supreme Court. 8. In the above circumstances, the salary evidenced by the certificate produced is Rs.16,442/-, to which 30% has to be added making the remuneration computed for deciding the future prospects to Rs.21,375/- [16,442+4,933]. Out of this 1/3 has to be reduced for the personal **M.A.C.A. No.2242 of 2015 [C] & Cross Objection No.98 of 2018** **8** expenses of the deceased and on such reduction the income would come to Rs.14,250/- [21,375-7,125]. This amount has to be multiplied with 12 and the split multiplier of 10 making the compensation to be Rs.17,10,000/- till the age of retirement. For the loss of income after retirement, the multiplier of 3 has to be applied on 50% of the salary being the loss of pension. The said compensation would come to Rs.2,56,500/- [7125x12x3]. The total compensation on loss of dependency would hence be Rs.19,66,500/-. The Tribunal order will stand modified to the above extent. The MACA would stand allowed with the above modification and the cross objection would stand rejected. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. To Judge sp/27/07/18