MACA No. 2619 of 2016 & CO No. 158 of 2016

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 31 [ ST ] DAY OF MAY 2024 / 10TH JYAISHTA, 1946 MACA NO. 2619 OF 2016 ``` ``` AGAINST THE AWARD DATED 22.12.2015 IN OP(MV) NO.1122 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI 18. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONERS:`** - **`1 VARGHESE, S/O POULOSE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.`** - **`2 ELSA, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.`** - **`3 AAVILA, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.`** - **`4 EMILY, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.`** - **`5 MILAN, S/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.`** ## **`BY ADV VINODE V. LUKA`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2024, ALONG WITH CO.158/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2619 of 2016 & CO No.158 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 31[ ST ] DAY OF MAY 2024 / 10TH JYAISHTA, 1946 CO NO. 158 OF 2016`** ``` THE AWARD DATED 22.12.2015 IN OP(MV) NO.1122 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`CROSS OBJECTORS/RESPONDENTS/PETITIONERS:`** - **`1 VARGHESE, AGED 64 YEARS,`** ``` S/O POULOSE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. ``` - **`2 ELSA, AGED 30 YEARS, D/O VARGHESE ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511.`** - **`3 AVILA, AGED 26 YEARS,`** ``` D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. ``` ``` 4 EMILY, AGED 24 YEARS D/O VARGHESE ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. ``` - **`5 MILAN, AGED 22 YEARS,`** ``` S/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. ``` ``` BY ADVS. VINODE V. LUKA SRI.RENJITH RAJAPPAN ``` ## **`RESPONDENT/S:`** ``` THE ORIENTAL INSURANCE COMPANY LTD. REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI- 682 018. ``` ``` BY ADV SRI.P.JACOB MATHEW ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2024, ALONG WITH MACA.2619/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2619 of 2016 & CO No.158 of 2016 3 ## **J U D G M E N T** The above appeal and cross objection are directed against the award in OP(MV) No.1122 of 2008 on the file of Additional Motor Accidents Claims Tribunal, Thrissur. The 3rd respondent-Insurer is the appellant and the claimants are the cross objectors. Both are assailing the award; the Insurer on the ground of its excessive nature, and the claimants on its inadequacy. 2. On 21.07.2007, Smt.Alphosa, the wife of the 1st claimant and mother of claimants 2 to 5, died in a road traffic accident, while she was travelling in KL-9/C-1919 bus. Due to the rash and negligent driving of the bus by the 2nd respondent, the bus hit against an electric post, whereby, Smt.Alphonsa suffered serious injuries and succumbed to it, on her way to hospital. She was a 48 year old School Teacher at the time of incident. Her legal heirs approached the Tribunal claiming compensation of Rs.30,00,000/- and the Tribunal awarded Rs.22,55,270/-, which according to the Insurer is on MACA No.2619 of 2016 & CO No.158 of 2016 4 the higher side, but according to the claimants, it is on the lower side. 3. The 1st respondent was the owner of the offending bus, 2nd respondent was its driver and the 3rd respondent was its Insurer. Respondents 1 and 2 were _ex parte_ before the Tribunal. The 3rd respondent contested the case, but admitted the Policy as well as the incident. 4. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. 5. Heard learned counsel for the appellant/Insurer and learned counsel for cross objectors/claimants. Learned counsel for the appellant would submit that the deceased was a 48 year old Teacher, and she was due to retire after 8 years. So the multiplier taken by the Tribunal as 13, was not correct and the proper multiplier would have been ‘8’. The Apex Court has time and again deprecated the practice of applying split multiplier in the case of death of an employee prior to MACA No.2619 of 2016 & CO No.158 of 2016 5 superannuation. So, this Court is of the view that the multiplier applied as 13 by learned Tribunal is not liable to be disturbed. 6. Learned counsel for the cross objectors/claimants would submit that though learned Tribunal accepted the monthly income of the deceased as per Ext.A1 salary certificate and 30% addition was given for future prospects also, deduction of **⅓** towards personal expenses cannot be justified as she was having 5 dependents including her husband. The claimants were her husband and four children. The elder one was aged only 22 and the younger one was aged only 14 at the time of her death. There was nothing to show that any of her children were employed/married at the time of incident so that they could not have been treated as her dependent. Without any materials to show that her children were not dependent on her, learned Tribunal could not be justified in treating only three of the claimants as her dependents so as to reduce **⅓** of her income towards her personal expenses. So, this Court is inclined to take all the MACA No.2619 of 2016 & CO No.158 of 2016 cross objectors/claimants as her dependents so that only ¼ was liable to be deducted towards her personal expenses. So her monthly income could have been taken as Rs.14,627/-. When loss of dependency is calculated accordingly, it will come to Rs.22,81,812/- (14,627x12x13). Learned Tribunal awarded Rs.20,28,270/- (15,60,208+4,68,062). On deducting that amount, the cross objectors are entitled to get enhanced compensation of Rs.2,53,542/- under the head loss of dependency. 7. Learned counsel for the appellant would point out that towards funeral expenses, learned Tribunal awarded Rs.25,000/-, instead of Rs.15,000/- eligible, and so, the excess amount has to be refunded. As per the decision **National Insurance Company Ltd. v. Pranay Sethi and Others,** **[(2017) 16 SCC 680]** , the cross objectors/claimants were eligible to get only Rs.15,000/- under the head ‘funeral expenses’. So Rs.10,000/-is liable to be deducted from the amount awarded by the Tribunal under that head. MACA No.2619 of 2016 & CO No.158 of 2016 8. Learned counsel for the cross objectors would submit that though Rs.1,00,000/- was claimed by them under the head ‘loss of estate’, no amount was awarded by the Tribunal. Based on **Pranay Sethi’s case** cited _supra_ , the cross objectors/claimants are eligible to get Rs.15,000/- and so this Court is inclined to award that amount in their favour. 9. Towards loss of consortium, learned Tribunal awarded Rs.1,00,000/-, apart from Rs.1,00,000/- awarded under the head ‘loss of love and affection’, amounting Rs.2,00,000/- in total. Based on **Pranay Sethi’s case** cited _supra_ , the cross objectors/claimants are eligible to get Rs.40,000/- each under the head ‘loss of consortium’, which will come to Rs.2,00,000/-. So they are not eligible to get any further enhancement under the head ‘loss of consortium/loss of love and affection’, than the amount already awarded by the Tribunal. 10. Learned counsel for the appellant would submit that learned Tribunal failed to deduct income tax from the income calculated for the deceased. As per the salary certificate, the MACA No.2619 of 2016 & CO No.158 of 2016 8 annual income of the deceased was only Rs.1,80,024/-. The standard deduction in that financial year was Rs.1,45,000/- for women. Apart from that if she was having other deductions towards deposits, housing loan etc., she was not liable to pay income tax and so, this Court cannot find fault with the Tribunal for not deducting tax from the annual income of the deceased. |deceased.||||| |---|---|---|---|---| |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |Loss of<br>dependency|Rs.20,28,270/-|Rs.22,81,812/-||Rs.2,53,542/-| |Funeral<br>expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|| |Loss of estate|…|Rs.15,000/-||Rs.15,000/-| |Loss of<br>consortium|Rs.1,00,000/-|Rs.2,00,000/-||| |Loss of love and<br>affection|Rs.1,00,000/-|||| |Total|||Rs.10,000/-|Rs.2,68,542/-| |||||| |Enhanced compensation is Rs.**2,58,542/-**(2,68,542 - 10,000)||||| Enhanced compensation is Rs. **2,58,542/-** (2,68,542 - 10,000) 11. In the result, the cross objectors are entitled to get enhanced compensation of Rs.2,58,542/- after deducting the MACA No.2619 of 2016 & CO No.158 of 2016 excess amount of Rs.10,000/- awarded under the head ‘funeral expenses’. 12. The appellant/Insurer is directed to deposit the enhanced compensation of Rs.2,58,542/- (Rupees Two Lakh Fifty Eight Thousand Five Hundred and Forty Two only) with interest @ 9% per annum, from the date of petition till the date of deposit, before the Additional Motor Accidents Claims Tribunal, Thrissur, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to cross objectors 1 to 5/claimants 1 to 5 in equal share, after deducting the liabilities if any towards tax, balance court fee, legal benefit funds etc. The appeal and cross objection are allowed in part to the extent as above and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-