M.A.C.A. No. 692 of 2010 and No. 1426 of 2011 (Mariyamma James and Joblin K. James v. Rajan, K.S. Prasad and National Insurance Co. Ltd.)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 MACA.No. 692 of 2010() ---------------------( OPMV.1028/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA ) .................... APPELLANTS/PETITIONERS 1 & 2 ------------------------------- 1. MARIYAMMA JAMES, KANJIKUZHIYIL HOUSE, THOTTAMON MURI, RANNY VILLAGE, RANNY TALUK. 2. JOBLIN K.JAMES (MINOR), REPRESENTED BY HIS MOTHER MARIYAMMA JAMES (IST APPELLANT), KANJIKUZHIYIL HOUSE, THOTTAMON MURI, RANNY VILLAGE, RANNY TALUK. BY ADV. SRI.T.K.KOSHY SRI.SABU I KOSHY SRI.P.GIREESHKUMAR SRI.V.V.RISANI ## RESPONDENTS/RESPONDENTS 1 TO 3 ------------------------------------------------------------- 1. RAJAN, S/O.KOCHUKUNJU, THEKKUMKOOTTATHIL HOUSE, PULLOOPRAM.P.O, ANGADI VILLAGE, RANNY TALUK. 2. K.S.PRASAD, KULATHUMKAL HOUSE, CHETHAKKAL.P.O, RANNY. 3. BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, PULIMMOTIL SHOPPING ARCADE, THODUPUZHA-685 584. ADV. SMT.RAJI T.BHASKAR FOR R3 ADV. SRI.V.SETHUNATH FOR R1 & 2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011, ALONG WITH MACA NO. 1426 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jj ## **R. BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------M.A.C.A.NOS: 692/2010 & 1426 OF 2011** **----------------------------------------------------------Dated this the 6[th ] September, 2011.** ## **JUDGMENT** ## Basant, J. These appeals are directed against an award passed by the Tribunal under which total amount of Rs.14,33,564/has been awarded as compensation to the claimants who are the wife and the minor child of the deceased. 2. The deceased was employed abroad as a Marine Technician(Welder). He was allegedly getting an amount of about Rs.45,000/- as monthly salary. He holds the requisite quantification and experience to work as a Marine Technician. He had come on leave to his native place and it was then that he had suffered injuries on 5.7.2003. Against a total claim limited to Rs.25 lakhs, the Tribunal awarded an amount of Rs.14,33,564/- as per the details which are given in paragraph-10 of the impugned award which we extract below: M.A.C.A.692/2010 & 1426/2011 2 1. Loss of dependency Rs.13,52,064/2. Loss of estate/loss of expectancy of life Rs.15,000/3. Loss of consortium to first petitioner widow Rs.15,000/4. Loss of love and affection and parental care to minor petitioner Rs.25,000/- 5. Pain and sufferings endured by the deceased Rs.15,000/6. Transportation expenses and damage to clothing Rs.1,500/- 7. Funeral and allied expenses Rs.10,000/---------------Total Rs.14,33,564/- ========== 3. Both sides have preferred appeals. The challenge is directed primarily against the quantum of compensation awarded under the head of loss of dependency. While the learned counsel for the appellant assails the impugned award of Rs.13,52,064/- under the head of loss of dependency to be excessive, the learned counsel for the claimants contends that the amount awarded is too low. 4. The Tribunal arrived at the amount of Rs.13,52,064/- by reckoning 16 as the multiplier and M.A.C.A.692/2010 & 1426/2011 3 Rs.10563/- as the multiplicand. 1/3[rd] was deducted towards the personal expenses of the deceased. 5. The learned counsel for the claimants submits that the Tribunal had arrived at the multiplicand at Rs.10563/by a process which is extremely unscientific and unsatisfactory. The Tribunal assumed that the deceased must have worked abroad for a further period of five years from the date of his death. During that period the Tribunal assumed that he must have earned an amount of Rs.25,000/a month. The Tribunal assumed that he would have returned to India after a period of five years and would have continued to work in India for the remaining eleven years, that is 16-5 years. During that period the Tribunal assumed that the total monthly income of the deceased would have been Rs.4000/- . Thus the Tribunal found that during the first five years the total income that would have been earned would be Rs.15 lakhs (25000 x 5 x 12). For the remaining 11 years though the Tribunal assumed that the total earnings would be Rs.528000/- (4000 x 11 x 12). The Tribunal added up the total income for the period of 16 M.A.C.A.692/2010 & 1426/2011 4 years and divided that amount by 16. It was further divided by 12 to arrive at the probable monthly income of Rs.10563/-. 6. Learned counsel for the claimant submits that it is extremely unsatisfactory to assume that the deceased would have worked at his place of employment abroad only for five years and would thereafter have returned to India. Counsel further points out that it was so perverse to assume that his monthly income after he returns to India would be only Rs.4000/-. The learned counsel points out that the available indications suggest that the deceased was employed abroad for a fairly long period of time. He could have continued employment abroad for a long further period of time. While he is employed abroad he could have continued to earn income at the present rate. As per Ext.A9 his present monthly income translated to Indian currency would be about Rs.45000/-. He could have continued to earn the income. Following the dictum in **Sarla Verma (Smt) and others v. Delhi Transport Corporation and another {(2009) 6 SCC 121}** it was argued that the provisions may M.A.C.A.692/2010 & 1426/2011 5 be made for the increase of 30% in the earnings of the deceased. In these circumstances it is contended that the quantum of compensation awarded under the head loss of dependency is totally and perversely insufficient. 7. Learned counsel for the Insurance Company on the contrary contends that Ext.A9 does not at all show that he was in permanent employment of the employer who issued Ext.A9. The learned counsel points out that Ext.A9 only shows that the deceased was under the employment of such employer for a short period of three months. The Certificate does not suggest that he has a settled regular stable employment under such employer. In such employment it is usual that a relatively higher salary may be given to such persons who cannot claim salary for the period during which they are not actually employed. The learned counsel for the Insurance Company further points out that it must realistically be accepted that such persons employed abroad will have to spend a lot of money for remaining in such employment. The entire monthly salary cannot as such be repatriated to India. From that substantial amounts will M.A.C.A.692/2010 & 1426/2011 6 have to go as price for continuance in employment to live abroad. In these circumstances it would be unrealistic to swallow Ext.A9 and assume that the deceased would have continued to get such salary for all times. The learned counsel for the Insurance Company contends that the Tribunal at any rate erred grossly in assuming Rs.10563/as the monthly earnings for the entire period of sixteen years. That amount deserves to be reduced and brought down substantially contends the learned counsel. 8. The learned counsel for the Insurance Company further contends that at any rate 16 could not have been accepted as the multiplier. Going by **Sarla Verma (supra)** only 15 should have been accepted as the multiplier contends the learned counsel. 9. We will now have to ascertain what would be the monthly contribution of the deceased to the claimants for the fifteen years which is accepted as the multiplier. Taking all the relevant inputs into account we are satisfied that Rs.15000/- can be reckoned as the monthly income and Rs.10000/- to be the amount of contribution that the M.A.C.A.692/2010 & 1426/2011 7 deceased would have made to the claimants herein. The challenge can succeed only to the above extent. 10. Though attempt was made by both sides to assail the quantum of compensation awarded under the other heads we are certainly of the opinion that invocation of the appellate jurisdiction is not warranted or necessary to interfere with the quantum of compensation awarded under the other heads. 11. It follows from the above discussions that the claimants/appellants are entitled to a further amount of Rs.4,47,936/- (Rupees four lakhs forty seven thousand nine hundred and thirty six only) as shown in addition to the amount awarded by the Tribunal. Loss of dependency **Rs. 447936/-** (Rs.15000 x 12 x 2/3 x 15, i.e Rs.18 lakhs minus Rs.1352064) 12. In the result; a) M.A.C.A.692/2010 is allowed in part. b) M.A.C.A.1426/2011 is dismissed. c) The appellants are entitled to a further amount of M.A.C.A.692/2010 & 1426/2011 8 Rs.447936/- (Rupees four lakhs forty seven thousand nine hundred thirty six only) in addition to the amount awarded by the Tribunal. d) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period specified by the Tribunal under the impugned order. e) All other directions of the Tribunal are upheld. R. BASANT Judge K. SURENDRA MOHAN Judge jj M.A.C.A.692/2010 & 1426/2011 9