M.A.C.A No.1140 of 2011 (C) and Cross Objection No.5 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 8TH DAY OF MARCH 2012/18TH PHALGUNA 1933** **MACA. No.1140 of 2011 (C) ------------------------(AGAINST THE AWARD IN OP(MV).NO.2091/2006 of MACT, TRIVANDRUM)** **APPELLANT(S)/2ND RESPONDENT: --------------------------------------------------** **THE NATIONAL INSURANCE CO. LTD, THIRUVANANTHAPURAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR OMANA BUILDING, M.G.RAOD, KOCHI-35.** **BY ADV. SRI. GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENT(S)/CLAIMANTS & 1ST RESPONDENT:** **--------------------------------------------------------------------------** **1. DHANYA SETHUNARAYANAN, RESIDING AT SEBARI 1592/38, MUNDAKKAL EAST, KOLLAM-691001.** **2. SHILPA SETHUNARAYANAN, RESIDING AT SEBARI 1592/38, MUNDAKKAL EAST, KOLLAM- 691001.** **3. SETHU NARAYANAN, RESIDING AT SEBARI 1592/38, MUNDAKKAL EAST, KOLLAM-691001.** **R1 & R2 BY ADV. SRI.N.SUKUMARAN (SR.) BY ADV. SRI.S.SHYAM BY ADV. SRI.BOBBY MATHEW KOOTHATTUKULAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2012, ALONG WITH CO. 5/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- M.A.C.A No.1140 of 2011 and Cross Objection No.5 of 2012 --------------------------------------------Dated this the 8[th] day of March, 2012. ## **JUDGMENT** ## **Ramakrishna Pillai, J** . Under challenge in this appeal and the cross objection is the award passed by the Motor Accidents Claims Tribunal, Thiruvananthapuram, in O.P(MV) No.2091/2006. Respondent Nos.1 and 2 (cross appellants) claimed a sum of Rs.50,37,000/- as compensation on account of the death of their mother Sheeja, who died in a road traffic accident occurred on 03/09/2006. 2. Allegedly, while the deceased was travelling by a car driven by her husband (the third respondent), the vehicle went out of his control and hit a compound wall. The deceased, who sustained serious injuries, succumbed to the same on the same day, while undergoing treatment in the hospital. M.A.C.A No.1140 of 2011 and _Cross Objection No.5 of 2012_ -:2:- 3. The deceased was the Professor and Head of the Department of Zoology, Sree Narayana College for Women, Kollam, at the time of her demise. 4. Against the claim, the learned Tribunal awarded a sum of Rs.25,49,372/- together with interest at the rate of 7.5% per annum from the date of petition till realisation. The appellant insurance company, who admitted the policy of the offending vehicle, was saddled with the liability of paying compensation. 5. In this appeal, the appellant mainly challenges the amount of compensation awarded for loss of dependency, adopting a uniform multiplicand for the entire period of eleven years, which is the multiplier applicable to the age group of the deceased. According to them, the deceased was aged 52 years at the time of her demise and she would have demitted her office at the age of 55, had she been alive. According to the appellant, as the deceased had only three more years of service, the adoption of a uniform multiplicand based on the salary drawn by the deceased for the entire period of eleven years is totally unjustifiable. M.A.C.A No.1140 of 2011 and _Cross Objection No.5 of 2012_ -:3:- 6. Respondent Nos.1 and 2, who are the cross appellants, are dissatisfied with the impugned award. According to them, the salary of the deceased was re-fixed with retrospective effect from 01/01/2006 as per Government Order dated 27/03/2010 and her pay was fixed at Rs.49,890/- with effect from 01/01/2006, as is seen from the salary certificate dated 17/09/2011 issued by the employer. According to them, compensation has to be re-fixed on the basis of the re-fixed pay scale. 7. We have heard the learned counsel for the appellant insurance company and the learned senior counsel appearing for respondent Nos.1 and 2 (cross appellants). We have also perused the impugned award. 8. The fact that the deceased was the Professor and the Head of the Department of Zoology, Sree Narayana College for Women, Kollam, is not in dispute. It is in evidence that the accident had occurred due to the negligence of the third respondent, who was driving the offending vehicle. Evidently and admittedly too, the deceased was aged 52 years at the time of the accident. Presumably, the deceased might have demitted her office on attaining the age of 55. In other words, the remaining M.A.C.A No.1140 of 2011 and _Cross Objection No.5 of 2012_ -:4:- period of service of the deceased was only three years, as the deceased had crossed the aged of 52. The accident and death were on 03/09/2006. Compensation was fixed for loss of dependency by the learned Tribunal on the basis of Ext.A8 salary certificate dated 25/09/2009. As per Ext.A8, gross salary of the deceased was Rs.28,608/- per mensem. Dependency compensation was worked out to Rs.25,17,372/-, applying the multiplier 11 and adopting 2/3[rd] of the salary as multiplicand. 9. In _**Sarala Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ the Apex Court has made it clear that an addition of 50% of actual salary income of the deceased can be given towards future prospects, where the deceased is below forty years. However, when the deceased is above forty years but below fifty years, the addition permitted is only 30%. However, it was made clear that there should be no addition, where the age of the deceased is more than fifty years. 10. It is true that the multiplier applicable to the age group of the deceased is eleven, as she was only 52 years at the time of her demise. However, as the remaining years of service of the deceased was only M.A.C.A No.1140 of 2011 and _Cross Objection No.5 of 2012_ -:5:- three, the learned Tribunal was not at all justified in adopting a uniform multiplicand for the entire period of eleven years. Relying on Ext.A8 salary certificate, the learned Tribunal (after deducting 1/3[rd] of the salary in consideration of the expenses which the deceased would have been incurred, had she been alive) found that the amount that would have been contributed by the deceased for maintaining the family per month was Rs.19,071/-. We do not see any reason to interfere with the said finding. 11. Compensation for loss of dependency for a period of three years can be calculated at the aforesaid rate. For the balance period of eight years, a notional income has to be fixed. We do notice that the deceased was a senior Professor in Zoology. Presumably, she might have earned some income after her retirement, especially as there is high demand for experienced professors who teach science subjects for institutions imparting intensive coaching for the preparation of entrance examinations. Considering the age, qualification and experience of the deceased, we feel that the notional monthly income for the remaining period can be fixed as Rs.22,500/-. When 1/3[rd] of the amount is deducted M.A.C.A No.1140 of 2011 and _Cross Objection No.5 of 2012_ -:6:- in consideration of the expenses which the deceased would have incurred, had she been alive, the monthly benefit that would have derived by the family is Rs.15,000/-. 12. Hence, compensation for loss of dependency can be recalculated as under:- (i) For the first three years Rs.19,071/- x 12 x 3 = Rs. 6,86,556/- (ii) For the next eight years Rs.15,000/- x 12 x 8 = Rs.14,40,000/ - Total Rs.21,26,556/ 13. Accordingly, we modify the amount of compensation for loss of dependency payable to respondent Nos.1 and 2 as Rs.21,26,556/-. This means that the amount of compensation awarded for loss of dependency shall stand reduced by Rs.3,90,816/- (Rs.25,17,372/- - Rs.21,26,556/-). 14. We have also reappraised the amounts awarded under other heads. We feel that the compensation award by the learned Tribunal for pain and suffering is inadequate. Thus, we award an additional amount of Rs.5,000/- under that head. 15. We also notice that respondent Nos.1 and 2 lost their mother at M.A.C.A No.1140 of 2011 and _Cross Objection No.5 of 2012_ -:7:- a stage when they needed the care and protection of their mother. Both of them were unmarried at the time of their mother's demise. Hence, we feel that the amount awarded for loss of love and affection is inadequate. Thus, we are awarding an additional sum of Rs.15,000/- on that count. 16. While offsetting the aforesaid amount of Rs.20,000/(Rs.5,000/- + Rs.15,000/-) against the excess amount of Rs.3,90,816/-, the net amount that will have to be deducted from the total compensation, will come to Rs.3,70,816/-. This means that respondent Nos.1 and 2 who are the cross appellants will get only Rs.21,78,556/- as compensation. Appeal and cross objection are disposed of modifying the award amount as above. sd/- **PIUS C. KURIAKOSE JUDGE** sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj