M.A.C.A No. 3526 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA,** ## **1945** **MACA NO. 3526 OF 2015** **AGAINST THE ORDER/JUDGMENT OPMV 1157/2007 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANTS/PETITIONERS:** - 1 M.K.RAVEENDRAN, AGED 71 YEARS S/O.KRISHNANACHARI, MEENATHU KIZHAKKATHIL, KADAPPA, MYNAGAPPALLY PO, KUNNATHOOR TALUK, KOLLAM - 2 P.K. SREE RENJINI, W/O.M.K.RAVEENDRAN, MEENATHU KIZHAKKATHIL, KADAPPA, MYNAGAPPALLY PO, KUNNATHOOR TALUK, KOLLAM BY ADVS. SRI.PRATHEESH.P SMT.RENY ANTO SMT.S.SEETHA ## **RESPONDENTS/RESPONDENTS 3,4 AND 6:** - 1 THE MANAGING DIRECTOR, ICICI LOMBARD GENERAL INSURANCE COMPANY,CORPORATE OFFICE, MUMBAI - 2 THE MANAGER, ICICI LOMBARD GENERAL INSURANCE COMPANY ICICI LOMBARD MOTOR INSURANCE CO. LTD., COCHIN - 3 KERALA STATE ROAD TRANSPORT CORPORATION, KSRTC THIRUVNANTHAPURAM 695001 BY ADVS. R.AJITH KUMAR (128/84) ALEX ANTONY SEBASTIAN P.A. K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No.3526 of 2015 2 ## **JUDGMENT** The appellants are the petitioners in O.P.(M.V) No. 1157/2007 on the files of the Motor Accidents Claims Tribunal, Kollam. The said claim petition was submitted by the legal heirs of one Ratheesh, who died due to the injuries sustained in a motor accident that occurred on 04.04.2007. 2. According to the appellants, the deceased was a pillion rider on a motorcycle bearing registration No. KL-2E 1232 and it was hit by a KSRTC bus bearing registration No.KL-15/3009. Immediately thereafter, the deceased was taken to the Taluk Hospital, Karunagappally and from there, he was taken to the Medical College Hospital, Thiruvananthapuram. While he was being taken to the Medical College Hospital, Thiruvananthapuram, in an Ambulance bearing registration No.KL 23/5083, driven by the 2nd respondent, it collided with another KSRTC bus, which came from the opposite direction. It is reported that the deceased sustained further injuries in the accident, and ultimately, he died on 05.04.2007 while undergoing treatment. 3. According to the appellants, the deceased was 28 years old at the time of the accident and was a police constable at the M.A.C.A No.3526 of 2015 3 relevant time. The claim petition was submitted in such circumstances by the appellants along with the sister of the deceased who is now no more. The 1st and 2nd respondents were the insurers of the Ambulance involved in the accident, whereas the 3rd respondent in this appeal was the Managing Director of KSRTC, the owner of the bus involved in the accident. 4. The respondents in this appeal filed written statements, accepting the accident but disputing the liability. As far as the insurer of the Ambulance is concerned, they accepted the coverage of the policy over the said vehicle. 5. The evidence in this case consists of oral testimonies of PWs 1 and 2 and Ext. A1 to A14 from the side of the appellants. The policy was produced as Ext.B1 from the side of the insurer. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the KSRTC bus and also the driver of the Ambulance and the liability was imposed upon them equally. The quantum of compensation was fixed as Rs.6,14,000/- and the respondents herein were directed to deposit the said amount in equal proportions. The appellants M.A.C.A No.3526 of 2015 **==> picture [7 x 9] intentionally omitted <==** submit this appeal in such circumstances seeking enhancement of compensation. 6. Heard, Sri. Pratheesh P, the learned counsel appearing for the appellants, Smt.K.S Santhi, the learned counsel appearing for the 2[nd] respond and Sri.Alex Antony Sebastian P.A, the learned counsel appearing for the 3[rd] respondent. 7. The only dispute in this case relates to the quantum of compensation. The learned counsel for the appellants would point out by placing reliance upon Annexure A1 produced along with the I.A No. 01/2023 and contend that even though the salary of the deceased as on the date of the accident was Rs.7,014/-, due to the pay revision orders, which came into effect subsequent to his death, the salary in the post of the deceased increased and as on 2016, it became Rs.33,382/-. Therefore, it was contended that the same has to be accepted for the purpose of determining the compensation instead of adopting a standard addition of 50% towards future prospects. 8. The learned counsel appearing for the respondents would oppose the said contentions. The learned counsel placed reliance upon the decision rendered by this Court in **Simi vs.** M.A.C.A No.3526 of 2015 5 **Bothers Carriers Pvt.Ltd** [2022 6 KHC 603], wherein it was held by this Court that when the claimants are able to demonstrate the exact increment they would have received and had the deceased been alive in the salary, nothing would preclude the Court from adopting the same, by deviating the common guidelines relating to the addition to be made towards future prospects as formulated in **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802] and **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. I do not have any disagreement with the proposition laid down by this Court in the said decision. However, the crucial question is whether the amounts shown in Annexure A1 could have been availed by the deceased in his lifetime. Evidently, the increase in the salary, as evidenced by Annexure A1, was a consequence of the pay revisions, which took place much after the death of the deceased. In **Sarla Verma** (supra), this question was specifically considered in paragraphs 44 and 45 and it was observed as follows: - “44. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. He submitted that though the M.A.C.A No.3526 of 2015 6 deceased was receiving Rs.4004/- per month at the time of death, as per the certificates issued by the employer (produced before High Court), on the basis of pay revisions and increases, his salary would have been Rs.32,678/- in the year 2005 and there is no reason why the said amount should not be considered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs.4004/and Rs.8008/-, but the average of Rs.4004/- and Rs.32,678/-. 45. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993.The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the two decades.If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If M.A.C.A No.3526 of 2015 7 the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon the pay scales in force at the time of the accident, if they are prompt in conducting case. But if they delay the proceedings, they can rely upon the revised pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scales subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation ” 9. The contention raised in the case was that even though the deceased at the relevant time was receiving a salary of Rs.7,013/- at the time of the death, consequent to the subsequent pay revisions and increases, it was enhanced to Rs.32,678,/- in the year 2016. Therefore, it was contended that the said amount ought to have been taken by the Tribunal for assessing the compensation. However, the Honourable Supreme Court declined the said prayer and found that in those cases also, the standardised addition stipulated by the Honourable Supreme Court has to be applied. In the light of the categorical pronouncement, as evidenced in the paragraphs referred to above, In **Sarla Verma’s** case (Supra) rendered by the Honourable Supreme Court, which addresses the exact situation now highlighted M.A.C.A No.3526 of 2015 8 before this Court, I am of the view that the figure shown in Annexure A1 cannot be accepted. 10. However, it is seen that the Tribunal did not make any additions towards future prospects. In the light of **Pranay Sethi** (supra), an addition of 50% ought to have been made as he was employed in a regular post with a regular salary. Similarly, the Tribunal also committed an error by adopting the multiplier, which was applicable to the mother of the deceased. The same was also not in tune with the principles laid down by the Honourable Supreme Court in **Sarla Verma's** and **Pranay Sethi's** cases. Therefore, the compensation in this case has to be calculated by taking the monthly income as Rs.7,013/- with an addition of 50% and applying the multiplier as '17', which is applicable to the age of the victim. Since he died as a bachelor, the deduction to be made towards personal expenses should be 50%. While calculating the compensation in the light of the aforesaid criteria, the compensation for loss of dependency would come to Rs.10,73,040/-[ (7,013 + 50%) x 12 x 17 x1/2). The amount already awarded by the Tribunal is Rs.5,68,080/-; thus, the additional compensation would come to Rs.5,04,960/-. M.A.C.A No.3526 of 2015 9 11. The next aspect relates to the compensation for loss of consortium. Among the claimants, the parents who are claimants Nos. 1 and 2 are entitled to compensation in the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)]** and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780 ]** at the rate of Rs.40,000/- each. Thus, the total amount would come to Rs.80,000/-. However, it is seen that the Tribunal has awarded an amount of Rs. 20,000/- under the head of loss of love and affection. Since it was held in **Satinder Kaur (supra)** that when compensation is awarded for loss of consortium, no separate amount could be granted for loss of love and affection. Therefore, the amount of Rs.20,000/- granted under the head is adjusted against the amount awarded by this Court towards the loss of consortium. Thus, the additional amount for loss of consortium would come to Rs.60,000/-. 12. Apart from the above, in the light of the observations made by the Honourable Supreme Court in **Pranay Sethi (supra),** an amount of Rs.5,000/- and 10,000/- are awarded under the heads of funeral expenses and loss of estate, M.A.C.A No.3526 of 2015 10 respectively. In addition to the above, a further sum of Rs.10,000/- is granted towards the pain and suffering of the deceased as, in this case, the deceased suffered two accidents, and the death occurred on the next day of the accidents while he was undergoing treatment. Thus, the total additional compensation is determined as Rs. 5,89,960/- (5,04,960 + 60,000 + 5,000 + 10,000 + 10,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 23.11.2011 in O.P(M.V) No.1157/2007 passed by the Motor Accidents Claims Tribunal, Kollam is hereby modified by granting an additional compensation of Rs.5,89,960/- (Rupees five lakhs eighty nine thousand nine hundred and sixty only). The said amount shall be deposited by the 2[nd] and 3[rd] respondents equally with interest at the rate as ordered by the Tribunal and with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. As it is reported that, the 3[rd] claimant, the sister of the deceased to whom an amount of Rs.1,00,000 was awarded by the Tribunal is no more, it is clarified that, the additional amount awarded by the Tribunal shall be apportioned among the M.A.C.A No.3526 of 2015 **==> picture [12 x 9] intentionally omitted <==** appellants equally. It is further clarified that, as the appeal was filed with a petition to condone the delay of 1389 days, the respondents shall be at liberty to exclude the said period while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk