MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 355 OF 2013`** ``` AGAINST THE AWARD DATED 06.11.2012 IN OP(MAC) 704/2011 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, TIRUR`** ## **`APPELLANT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO. LTD. THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI 18. ``` ``` BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ``` ## **`RESPONDENT/CLAIMANTS:`** - `1 AHAMED SHAREEF PULPARAMBIL S/O.ABOOBACKER, PULPARAMBIL (H), P.O KARANTHOOR, KOZHIKODE, PIN 673 511.` - `*2 SABAH MURSAL PULPARAMBIL(DIED) S/O.AHAMED SHAREEF, PULPARAMBIL (H), P.O KARANTHOOR, KOZHIKODE PIN 673 571.` - `3 WASIL MURSAL PULPARAMBIL S/O.AHAMED SHAREEF, PULPARAMBIL (H), P.O KARANTHOOR, KOZHIKODE PIN 673 571.` - `4 ASNA SHAHEEN PULPARAMBIL (MINOR) D/O.AHAMED SHAREEF PULPARAMBIL (H, P.O KARANTHOOR, KOZHIKODE, PIN 673 571. REPRESENTED BY HER NEXT FRIEND GUARDIAN AND FATHER AHAMED SHAREEF PULPARAMBIL, S/O.ABOOBACKER.` - `5 PATHUMMA THARIYATT MANUGAM VEETTIL ALIAS FATHIMA, W/O.LATE MUHAMMED MASTER, VALLUVARTHODI KANJIRANGAD (H), OLAVANNA P.O, PANTHEERAMKAVU, PIN 673 019.` - `ADDL.6 RUSANA MANDAYAPURATH AGED 31 YEARS, W/O. SABAH MURSAL, PULPARAMBIL HOUSE, P.O. KARANTHOOR, KOZHIKODE, PIN- 673571 .` ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 2 ``` ``` ADDL.7ISAM MUHAMMED AGE 7 YEARS, S/O. SABAH MURSAL, PULPARAMBIL HOUSE, P.O. KARANTHOOR, KOZHIKODE, PIN- 673 571. REPRESENTED BY HIS NEXT FRIEND AND MOTHER RUSANA MANDAYAPURATH, AGED 31 YEARS, W/O. SABAH MURSAL, PULPARAMBIL HOUSE, P.O. KARANTHOOR, KOZHIKODE PIN- 673 571. *THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL R6 AND ADDITIONAL R7 AS PER ORDER DATED 12/12/2022 IN IA 2/2022. ``` ``` BY ADV ADV K.K.MOHAMED RAVUF ADV A.N. SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.12.2023, ALONG WITH MACA.811/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, ``` ## **`1945`** ## **`MACA NO. 811 OF 2013`** ## **`AGAINST THE AWARD DATED 06.11.2012 IN OP(MAC) 704/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR`** ## **`APPELLANTS/PETITIONERS:`** - `1 AHAMED SHAREEF PULPARAMBIL PULPARAMBIL HOUSE, P.O.KARANTHOOR, KOZHIKODE.` - `*2 SABAH MURSAL PULPARAMBIL(*DECEASED AND DELETED) S/O.AHAMED SHAREEF,` - `-DO- -DO-` - `3 WASIL MURSAL PULPARAMBIL S/O.AHAMED SHAREEF,` - `-DO- -DO-` - `4 ASNA SHAHEEN PULPARAMBIL AGED 17 YEARS, MINOR, D/O.AHAMED SHAREEF, 4TH APPELLANT. REPRESENTED BY NATURAL GUARDIAN FATHER 1ST APPELLANT.` - `5 PATHUMMA TARIYATT MANUGAM VEETTIL @ FATHIMA, W/O.LATE MUHAMMED MASTER, VALUVARTHODI, KANJIRANGAD HOUSE, OLAVANNA P.O., PANTHEERAMKAVU.` - `ADDL.6 RUSANA MANDAYAPURATH AGED 31 YEARS, W/O SABAH MURSAL, PULPARAMBIL HOUSE,P.O.KARANTHOOR, KOZHIKODE, PIN: 673571` ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 4 ``` ``` ADDL.7ISAN MUHAMMED AGED 7 YEARS, S/O SABAH MURSAL, PULPARAMBIL HOUSE, P.O. KARANTHOOR, KOZHIKODE, PIN:673571.REPRESENTED BY HIS NEXT FRIEND AND MOTHER RUSANA MANDAYAPURATH, AGED 31 YEARS, W/O SABAH MURSAL, PULPARAMBIL HOUSE,P.O, KARANTHOOR, KOZHIKODE, PIN :673751 ``` ``` *ADDITIONAL APPELLANTS 6 AND 7 ARE IMPLEADED AS LEGAL HEIRS OF SECOND APPELLANT AFTER DELETING THE NAME OF THE DECEASED SECOND APPELLANT FROM THE PARTY ARRAY AS PER ORDER DATED 12.12.2022 IN IA 1/2022 IN MACA 811/2013. ``` ``` BY ADV K.K.MOHAMED RAVUF ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 P.S.PRAMOD S/O.SIVARAMAN,PARAMEL HOUSE, PANNISSERY P.O., KOONAMOOCHI, THRISSUR - 680 504.` - `2 JYOTHISH E.S. S/O.SUBRAMANIAN E.K., ERAKKATTUKUZHI HOUSE, THADILAM, VELLATTANJOOR P.O., THRISSUR - 680 601.` - `3 ORIENTAL INSURANCE CO.LTD. DEVASWOM BUILDING, 2ND FLOOR, ROUND WEST, THRISSUR - 680 001.` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.12.2023, ALONG WITH MACA.355/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 5 ``` ## **`JUDGMENT`** ## **`[MACA Nos.355/2013, 811/2013]`** Both these appeals arise from the award passed by the Motor Accident Claims Tribunal, Tirur in O.P.(MAC) No.704/2011. The said claim petition was submitted by the appellants in M.A.C.A. No.811/2013 seeking compensation for the death of one Ummu Subaida K. due to the injuries sustained in a motor accident that occurred on 10.06.2011. The original claimants were the husband, three children and the mother of the deceased. For the sake of convenience, the parties in these appeals are referred to based on their respective ranks in the claim petition. 2. According to the claimants, the accident occurred when a stage carriage in which the deceased was travelling went off the road and fell into a paddy field due to the rash and negligent driving of the 2nd respondent. The 1st respondent owned the vehicle and it was insured with the 3rd respondent. The deceased was an Associate Professor in an ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 6 ``` aided institution at Tirurangadi with a monthly income of Rs.81,648/-. She was 49 years old at the time of the accident. The claim petition was submitted in such circumstances seeking compensation. 3. The 3rd respondent/Insurance Company alone contested the matter by filing a written statement, wherein they admitted the coverage of policy with respect to the said vehicle but disputed the liability on various grounds. The quantum of compensation was also seriously disputed by them. The said claim petition was tried along with O.P.(M.V.) No.703/2011, which arose from the very same accident. 4. The evidence in these claim petitions consists of Ext.A1 to A30 from the side of the claimants. The disability certificate in O.P.(M.A.C) No.703/2011 was marked as Ext.C1. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2nd respondent in driving the bus. Being the insurer of the said ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 7 ``` vehicle, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.81,81,736/-. The said amount was directed to be deposited along with interest @ 9% per annum from the date of petition till realisation. Challenging the quantum of compensation, the 3rd respondent Insurance Company filed M.A.C.A. No.355/2013, whereas seeking enhancement of compensation, M.A.C.A. No.811/2013 was filed by the claimants. 5. Heard Sri.K.K. Mohamed Ravuf, learned counsel appearing fort the claimants and Sri.George Cherian (Thiruvalla), learned senior counsel appearing for the 3[rd] respondent Insurance Company. 6. Before going to the merits of the case, a crucial aspect to be noticed is that, earlier, both these appeals were disposed of by this Court as per a common judgment dated 17.09.2020. As per the said judgment, the quantum of compensation fixed by the Tribunal has been reduced and ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 8 ``` refixed as Rs.76,98,145/-. However, the review petitions submitted by the claimants were submitted in both the said appeals, highlighting that, at the time of disposing of these appeals, the 2nd claimant was no more and therefore, this Court passed the judgment with a dead person in the party array. Those review petitions were allowed by this Court, as per a common judgment dated 29.09.2022, by which both the judgments were recalled, and the appeals were restored into the file. These appeals are now being heard afresh in the light of such order of recalling of the judgments. 7. After the disposal of review petitions, the additional 6[th] and 7[th] respondents were impleaded as the legal representatives of the 2[nd] claimant in both these appeals. 8. The main contest from either side is in relation to the quantum of compensation. Among the various heads, the serious dispute relates to the amount under the head of loss of dependency. The learned senior counsel appearing for the Insurance Company contended that, as this Court has already ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 9 ``` quantified the compensation in the common judgment which was already recalled and such recalling was done only on the basis of some technical defects, the said judgment has to be restored. To substantiate the said contention, the learned senior counsel further contended that, subsequent to the judgment passed by this Court in these appeals, the claimants have approached the Motor Accident Claims Tribunal, Tirur, by filing I.A. No.1/2021 seeking certain changes in the apportionment of the award consequent to the death of the 2nd claimant. Therefore, it was pointed out by the learned senior counsel that, from the said context, it is evident that they have already accepted the judgment passed by this Court on the earlier occasion. Therefore, further consideration of the appeal is not necessary. The learned counsel also pointed out that, at the time of disposal of the said cases, the fact that the 2nd claimant was not alive was not brought to the notice of this Court and this is also highlighted as an omission from the part of the claimants. ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 10 ``` 9. However, after considering all the material aspects, I am not inclined to accept the contention put forward by the learned senior counsel in this regard. As far as the judgment passed by this Court on the earlier occasion is concerned, the same already stands recalled since it was found that it suffered from an inherent defect as it was disposed of with a dead person in the party array. Therefore, when the judgment was recalled, all the findings and conclusions that arrived therein will have no effect, and nothing would preclude this Court from considering the matter afresh by taking note of the factual circumstances and the laws applicable to the same. 10. Now, when coming to facts in the case, it is to be noted that, evidently, the deceased was working as an Associate Professor in the Physics Department of an aided college. The salary certificate of the deceased was produced as Ext.A11. The said salary certificate was proved by examining PW1 as well. Even though the Tribunal accepted the salary certificate and the monthly income shown therein, ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 11 ``` i.e. Rs.81,648/-, the compensation for loss of dependency was calculated only for the remaining period she was in her service at the time of the death, which was about 7 ¾ years. Thus, a multiplier of 8 was applied and the compensation was calculated. This is under serious challenge in these appeals. After considering the materials placed on record, I find force in the contention put forward by the learned counsel for the claimants. As per the decision rendered by this Court in **Puttamma v. K.L Narayana Reddy [2014 (1) KLT 738]** even in respect of a person who was having lesser years of service remaining than the multiplier applicable, the compensation has to be calculated for the entire period by applying the monthly income which the deceased was earning at the relevant time. The said view has been followed and reiterated in **R.Valli and Others v. Tamil Nadu State Transport Corporation Limited [(2022) 5 SCC 107]** , wherein the case of a person aged 54 years at the time of the accident was considered and the compensation was calculated on the basis ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 12 ``` of the salary which he used receive at time of death, for the entire multiplier. Therefore, I am of the view that, in the light of the categorical pronouncement of legal proposition as referred to above, the compensation in this case has to be calculated by taking the monthly income of the deceased as is discernible from Ext.A11 for the entire multiplier, irrespective of the period of service, which was remaining in her credit at the time of the death. 11. As regards the question of determination of monthly income, the learned counsel for the claimants, sought further enhancement of the monthly income by placing reliance upon Annexures A1 and A2 certificates (in R.P. No.493/2022). Annexure A1 was the service certificate of the deceased, which was issued on 27.10.2021, showing the details of the promotion she would have got and the income she would have received as on the date of the said certificate had she been in service. Annexure A2 is the salary certificate of another Associate Professor in the very same rank which ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 13 ``` would indicate that the salary the said person drawing was Rs.1,61,829/- as on 11.12.2017. The learned counsel placed reliance on the said certificate and contended that, the said amount ought to have been taken for the purpose of assessment of compensation. However, the learned counsel for the claimants, places reliance upon the observations made by the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] in paragraph 55 which reads as follows: _“55. Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in_ ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 14 ``` _the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, “just compensation”. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. We approve the principle of “standardization” so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.”_ In response to the aforesaid averments, the learned senior counsel brought the attention of this Court to the observations ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 15 ``` made by this Court in **Sarla Verma & Ors. v. Delhi Transport Corporation** [(2009) 6 SCC 121], in paragraph Nos.44 to 47 which reads 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 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,_ ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 16 ``` _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._ _46. 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 1988-1989 itself and if the appeal had been decided by the High Court in the year 1989-1990, 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._ _47. If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants could only rely upon the pay scales in force at the time of the accident, if they are prompt in_ ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 17 ``` _conducting case. But if they delay the proceedings, they can rely upon the revised higher 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.”_ 12. I have carefully gone through the observations made by the Honourable Supreme Court in both the said judgments. As regards the observations made by the Honourable Supreme Court in **Pranay Sethi (supra)** , it can be seen that those are general observations made by the Honourable Supreme Court regarding how the assessment of the monthly income has to be made. However, even in the said observations, it is evident that there are ample indications that the future prospects are to be calculated on the proven income at present, as is observed in paragraph 57 thereof. Moreover, in paragraphs 44 and 45 of **Sarla Verma's** case, the Honourable Supreme Court specifically considered the impact ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 18 ``` of pay revision and increase in the salary subsequent to the accident and the death. After discussing the issue in detail, it was categorically observed that such pay revisions, which occurred after the death, cannot be relied on for the purpose of determining the monthly income. In light of the above observations, I am of the view that what is relevant for consideration is the monthly income established by the claimants as on the date of the accident. Therefore, I do not find any justification in accepting the figures reflected in Annexures A1 and A2 (in R.P. No.493/2022), in view of the fact that, what is relevant for the purpose of assessing the compensation in this case, is the monthly income as is revealed from Annexure A11 with the standardized addition of 30% thereof as held in **Pranay Sethi (supra)** . Thus, the monthly income to be taken for the purpose of assessment of compensation is Rs.81,648/- with the addition of 30%. 13. At this juncture, the learned senior counsel would point out that the Tribunal did not take into account the ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 19 ``` amount to be deducted towards income tax, which is also one of the necessary aspects to be considered. This contention has to be accepted. The monthly income of the deceased comes within the zone of taxation, and therefore, the amount payable towards tax has to be deducted. On examining the slab of tax prevailing at the relevant time, it is seen that, for the amount above Rs.2,40,000/- up to Rs.5,00,000/-, the tax payable was 10%. For the amount in excess of Rs.5,00,000/up to Rs.8,00,000/-, the tax payable was 20% thereof, whereas for the Rs.8,00,000/- and above, the amount of tax would come to 30%. In this case, the salary is Rs.81,648/and therefore, the annual salary would come to Rs.9,79,776/when the tax is computed for the said amount, the amount of tax would come to Rs.1,39,933/- (26,000 + 60,000 + 53,933). Thus, the annual income after the tax would come to Rs.8,39,843/-.The 30% of the same has to be added towards future prospects and thus the income to be taken for the assessment of compensation is to be fixed as Rs.10,91,796/-. ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 20 ``` When the compensation for loss of dependency is calculated by adopting the multiplier of 13 and making a deduction of 1/4th towards personal expenses, the amount of compensation would come to Rs.1,06,45,011/- (10,91,796 x 13 x ¾). The amount already awarded by the Tribunal is Rs.81,51,736/-; thus, the additional amount receivable by the appellant would come to Rs.24,93,275/-. 14. The next aspect relates to the compensation payable under conventional heads. The learned counsel for the appellant points out that, in the light of **Pranay Sethi's** case, 10% of the conventional heads have to be revised every three years. However, the same was objected by the learned counsel for the Insurance Company. The learned counsel also places reliance upon the decision rendered by the honourable Supreme Court in **Anjali and Others v. Lokendra Rathod and Others** [2023 ACJ 637]. However, the crucial aspect to be noticed in this regard is that, as far as the periodical increase in the conventional heads is concerned, even though ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 21 ``` the same was provided in **Pranay Sethi's** case, there is nothing mentioned in the said decision as to whether the same has to be reckoned with reference to the date of the accident. Since any such observation with regard to the same is lacking, it can only be understood to mean that the said enhancement is applicable in respect of the cases in which the accidents occurred after the pronouncement of the decision rendered in **Pranay Sethi** and the periodical enhancement has to be given effect to with reference to the date of the accident. Here, in this case, the accident occurred in the year 2011. Therefore, I do not find any justification in making an addition of 10% as contemplated in **Pranay Sethi** merely because the appeals in these cases were kept pending for more than three years after the pronouncement of the decision in **Pranay Sethi's** case. Of course, in **Anjali's** case (supra), the honourable Supreme Court has also granted compensation by providing an enhancement of 10%. But, in that decision also, this aspect was not mentioned, and ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 22 ``` presumably, the same can only be understood as a decision taken under Article 142 of the Constitution of India. Therefore, I am not inclined to accept the contention put forward by the learned counsel for the claimant in this regard. 15. Thus, when moving on to the additional compensation to be granted under the conventional heads, it is to be noted that the Tribunal awarded Rs.5,000/- each under the head of loss of estate and funeral expenses, whereas **Pranay Sethi's** decision contemplates the amount of Rs.15,000/- each under these heads. Therefore, Rs.10,000/each is awarded under both heads. Similarly, the amount awarded towards the loss of consortium was only Rs.10,000/which is grossly inadequate. As the deceased left behind the claimants, who are the husband, three children and the mother, all of them are entitled to compensation under this head at the rate of Rs.40,000/- each, thereby making a total amount of Rs.2,00,000/-. At this juncture, the learned counsel for the Insurance Company points out that the Tribunal has ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 23 ``` already awarded an amount of Rs.10,000/- towards loss of love and affection, which was not at all warranted in the light of observations made in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760]. The contention has to be accepted as it is held in the said decision that when compensation is awarded for loss of consortium, no further amount is needed for loss of love and affection. Therefore, the said amount can be adjusted towards the additional amount fixed by this Court towards loss of consortium. Hence, the additional compensation under this head is determined to be Rs.1,80,000/-. 16. Similarly, no amount is seen awarded towards pain and suffering. Of course, the learned counsel for the Insurance Company opposes the said contention by pointing out that this is a case of death and therefore, no such amount needs to be granted. However, it is evident from the records that the deceased passed away while she was being taken to hospital. Therefore, the pain and suffering which she had ``` 24 ``` ## **`MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013`** suffered consequent to the injuries before death has to be compensated. Therefore, I fix a notional amount of Rs.10,000/- under the said head. 17. Thus, the total compensation is determined as Rs.27,03,275/- (24,93,275 + 10,000 + 1,80,000 + 10,000 + 10,000). 18. The learned counsel for the claimants by placing reliance upon the decision rendered by the honourable Supreme Court in **Sidram v. Divisional Manager, United India Insurance Company Limited and Another** [(2023) 3 SCC 439] contends that the claimants are entitled to litigation cost since the huge delay has occurred, in disposing of the matter. In paragraphs 77 to 82, a detailed discussion has been made by the Honourable Supreme Court with respect to the same and the amount of Rs.50,000/- was granted in that case, taking into account the fact that, even though the accident in that case occurred in the year 2012, the matter was ultimately settled only in the year 2023. However, there ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 25 ``` are certain distinguishing factors in the said decision. The litigation expenses awarded by the Honourable Supreme Court in the said decision were taking note of the fact that, even though the accident occurred on 18.07.2012, the claimant therein was forced to take up the matter to the Supreme Court and only in the year 2023, the same was disposed of. Therefore, taking into account the entire expenses, including the litigation expenses, which the claimant incurred up to the Supreme Court, the said amount was fixed. On the other hand, in this case, the crucial aspect to be noticed is that even though the accident occurred in the year 2011, these appeals were disposed of in the year 2020. Later, the said judgment was recalled in the year 2022 merely because of the fact that the 2nd claimant was not alive as on the date of disposal of the appeals. This was due the mistake on the part of the claimants in conveying the death of the 2nd claimant to this Court when the matter was taken up for disposal in the year 2020. Therefore, latches on the part of the ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 26 ``` claimants also contributed to the delay in the disposal of the matter. Moreover, in **Sidram** ’s case (supra), the litigant was forced to approach the Honourable Supreme Court thereby incurring huge expenses, which is not the situation in this case. Therefore, I am of the view that this is not a case in which litigation expenses, as observed by the Honourable Supreme Court in **Sidram's** case (supra), can be granted and the said contention is rejected. Thus, in the light of the aforesaid observations and findings, M.A.C.A. No.355/2013 filed by the 3[rd] respondent Insurance Company is hereby dismissed. M.A.C.A. No.811/2013 filed by the claimants is allowed and the award dated 06.11.2012 in O.P.(MAC) No.704/2011 passed by the Motor Accident Claims Tribunal, Tirur is hereby modified by granting an additional compensation of Rs.27,03,275/(Rupees twenty seven lahks three thousand two hundred and seventy five only) and the 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest at ``` MACA NO. 355 OF 2013 & MACA NO. 811 OF 2013 ``` ``` 27 ``` the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs