MACA No.1204 of 2010 (Leelakutty A.T. Mangattu House & others v. Managing Director, KSRTC; Pankajakshan Pillai; National Insurance Company Ltd)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 MACA NO. 1204 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 105/2000 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA/I ADDL. ``` ``` M.A.C.T. ``` ## **`APPELLANTS/CLAIMANTS:`** - `1 LEELAKUTTY A.T. MANGATTU HOUSE, VADASERIKKARA, RANNY, PATHANAMTHITTA.` - `2 LINO M. VARGHESE MANGATTU HOUSE, VADASERIKKARA, RANNY, PATHANAMTHITTA.` - `3 LINTO M. VARGHESE MANGATTU HOUSE, VADASERIKKARA, RANNY, PATHANAMTHITTA. BY ADVS.SRI.BIJI MATHEW SRI.B.V.JOY SANKER` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM. 2PANKAJAKSHAN PILLAI, S/O. KRISHNAN UNNITHAN, SREENILAYAM, PADANILAM P.O., NOORANADU. 3DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, THIRUVNANATHAPURAM DIVISION, THIRUVANANTHAPURAM. BY ADVS.SRI.P.C.CHACKO(PARATHANAM) SRI.P.G.JAYASHANKAR KUM.P.K.RESHMA (KALARICKAL) SMT.REVATHY P. MANOHARAN SMT.STEFIN THOMAS SMT.AMRITHA SUBIN SRI SANIN V.U. SRI.ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.1204 of 2010 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 02[nd] day of November, 2022** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Pathanamthitta (for short ‘the Tribunal’) on 11.11.2008 in O.P.(MV) No.105/2000. The appellants are the petitioners before the Tribunal. For the sake of convenience the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status before the Tribunal. 2. The petitioners have preferred the above Original Petition seeking for a sum of Rs.19,60,500/- as compensation for the death of Adv.M.C.Varghese in a motor accident. The Tribunal has awarded a sum of Rs.6,02,500/- and permitted the petitioners to realise interest for the sum at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal has also awarded Rs.14,000/- as proportionate cost. 3. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners who are the legal heirs and dependents ``` MACA No.1204 of 2010 ``` ``` 3 ``` of Adv.M.C.Varghese have approached this Court in the appeal on hand. At the time when the impugned award was passed, all the petitioners were alive but during it’s pendency, the third petitioner who is the third appellant passed away. 4. The accident in the case on hand was occurred on 28.07.1999. Adv.M.C.Varghese went to Chengannur to attend a funeral and on his way back was knocked down by a KSRTC Bus bearing registration No.KL 15/3169 proceeding from the opposite direction, at ITI junction Chengannur and thereby he sustained serious injuries. He was taken to Government Hospital, Chengannur and there he succumbed to the injuries. Alleging that the accident was occurred due to the rash and negligent driving of the KSRTC Bus by the second respondent and claiming for a sum of Rs.19,60,500/- as compensation, his legal heirs and dependents who are none other than the wife and two minor children, have preferred the Original Petition on hand. The owner, driver and the insurer of the KSRTC bus were arrayed as respondents 1 to 3 in the Original Petition. Respondents 1 and 2 did not turn up to contest the Original ``` MACA No.1204 of 2010 ``` ``` 4 ``` Petition despite receipt of notice from the Tribunal and therefore, were declared ex-parte. 5. The third respondent has filed written statement admitting insurance coverage of the KSRTC Bus as on date of the accident. It was contended that the second respondent who was driving the KSRTC Bus was not rash and negligent and was not responsible for the accident. The sum claimed as compensation is disputed for it’s exorbitant nature. The claim petition is sought to be dismissed for the above reason. 6. Before the Tribunal, petitioners marked Exts.A1 to A10 in evidence. The third respondent did not adduce any evidence. On appreciation of the entire evidence the Tribunal found the driver of the KSRTC Bus, negligent and responsible for causing the accident. Thus the liability was fixed on the third respondent insurer to indemnify the insured, who is the first respondent. The Tribunal has also arrived at Rs.6,02,500/- as the compensation payable and permitted the petitioners to realise interest for the sum at the rate of 7.5% per annum. ``` MACA No.1204 of 2010 ``` ``` 5 ``` 7. According to Sri.Biji Mathew, the learned counsel for the petitioners, the deceased was a lawyer having 25 years standing at the Bar. According to him, though the petitioners had raised a claim of Rs.8,000/- as his monthly income, the Tribunal fixed Rs.6,000/- as the monthly income of the deceased on a notional basis. It was contended that Rs.6,000/- is highly unreasonable to be fixed as monthly income for a lawyer having 25 years’ experience at the Bar. The learned counsel has also pointed out that the compensation stands awarded by the Tribunal under various other heads also require modification. 8. The learned counsel for the third respondent has pointed out that petitioners being the legal heirs are not entitled to get any sum as compensation under the head pain and suffering and the Tribunal is highly unjustified in awarding compensation under that head. He has also relied on _**United Insurance Company Limited v. Satinder Kaur Alias Satwinder Kaur and Others**_ [(2021) 11 SCC 780], where the Apex Court has issued directions to observe the principles laid down in _**Sarla Verma v. Delhi Transport**_ ``` MACA No.1204 of 2010 ``` ``` 6 ``` ## _**Corporation**_ [2010 (2) KLT 802 (SC)], which are extracted hereunder: ## **“Step 1 (Ascertaining the multiplicand)** The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand. ## **Step 2 (Ascertaining the multiplier)** Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a Table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said Table with reference to the age of the deceased, ## **Step 3 (Actual calculation)** The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the “loss of dependency” to the family. Thereafter, a conventional amount in the range of Rs 5000 to Rs 10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. ``` MACA No.1204 of 2010 ``` ``` 7 ``` The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.” (emphasis supplied) 9. Under Step 3 above, the Apex Court has directed that no amount is to be awarded under the head pain and suffering or hardship caused, to the legal heirs of the deceased. In _**National Insurance Company Limited v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)] it was directed by the Apex Court that the surviving members of a victim of a motor accident who is no more, are entitled to get compensation under the conventional heads such as loss of estate, funeral expenses and loss of consortium. Wide dimension has also been given to ‘consortium’ in _**Magma General Insurance Co.Ltd v. Nanu Ram and Others**_ [Manu/SC/1012/2018]. It was held that consortium would take within it’s ambit, parental, filial and spousal consortium. 10. It is an admitted factum that the deceased was a lawyer having 25 years experience at the Bar and was aged only 52 years at the relevant time of his death. He has been practicing as a lawyer ``` MACA No.1204 of 2010 ``` ``` 8 ``` from the date of his enrollment till the date on which he died due to the injuries sustained in the accident. If sufficient income was not earned, he would have chosen some other avocations to sustain his family consisting of wife and two children. Evidence is not forthcoming to show that he had shifted his profession as a lawyer to some other profession. 11. The deceased being a lawyer having 25 years’ standing at the Bar, this Court finds it reasonable to fix Rs.12,000/- as his monthly income ignoring the factum that Rs.6,000/- alone was claimed by his wife as the monthly income in the Original Petition. The Tribunal has adopted 11 as the multiplier and it being correct is maintained. The deceased being 52 years, 10% is required to be added to the monthly income in consideration of future prospects. The wife and two minor children being his dependents, 1/3[rd] is liable to be deducted from the monthly income fixed, in consideration of personal expenditure liable to be met with, had his death not occurred. Therefore, Rs.1,05,600/- is arrived at as the multiplicand. In the assessment with the above factors, ``` MACA No.1204 of 2010 ``` ``` 9 ``` Rs.11,61,600/- (Rs.1,05,600 x 11) is arrived at as compensation under the head loss of dependency. Rs.5,28,000/-, stands awarded by the Tribunal when adjusted in the sum arrived at, petitioners will get Rs.6,33,600/- as additional compensation. In view of _**Magma**_ supra, each of the surviving members, are entitled to get Rs.40,000/as compensation for loss of consortium. 12. It is found that the Tribunal has awarded Rs.12,500/- as compensation for loss of consortium in favour of the wife and the children have been declined compensation under that head. Rs.25,000/- is found awarded under the head loss of love and affection. Since three years have already been passed since laying of the dictum in **Pranay Sethi** supra, as directed therein, the petitioners are entitled to get Rs.16,500/- (15,000 + 10% of 15,000) each under the conventional heads of loss of estate and funeral expenses and Rs.44,000/- under, loss of consortium. Rs.12,500/- stands awarded to the wifeunder the head loss of consortium is adjusted against Rs.1,32,000/- now arrived at as payable under the head loss of consortium. Since the petitioners ``` MACA No.1204 of 2010 ``` ``` 10 ``` have no entitlement to get compensation under the head loss of love and affection, Rs.25,000/- stands awarded towards that is also adjusted in the above sum arrived at as compensation for loss of consortium. Therefore, petitioners will get Rs.94,500/[Rs.1,32,000/- – (Rs.25,000/- + Rs.12,500/-)] as additional compensation under the head loss of consortium. The petitioners are found entitled to get Rs.16,500/- towards funeral expenses. Rs.10,000/- being the sum stands awarded by the Tribunal, petitioner will get Rs.6,500/- as additional compensation. Towards loss of estate the Tribunal has already awarded Rs.15,000/-. Petitioners are entitled to get Rs.16,500/- and therefore, Rs.1,500/- will be payable as additional compensation. It is found that Rs.10,000/- has been awarded by the Tribunal under the head pain and suffering but, the petitioners have no entitlement for that. Therefore, Rs.10,000/- stands awarded as above is also to be adjusted in the final sum found payable as additional compensation. ``` MACA No.1204 of 2010 ``` ``` 11 ``` 13. In the above manner of modification petitioners will get Rs.7,26,100/- (Rs.7,36,100/- - Rs.10,000/-) (Rupees Seven lakhs twenty six thousand and one hundred only) in total as additional compensation and the said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The third respondent shall deposit the said sum with interest fixed as above and the amount already stands awarded by the Tribunal in the impugned award (if not paid till date) together with interest fixed, within a period of two months from the date on which a certified copy of the judgment is received. 14. Vide order passed by this Court on 16.08.2022 in C.M.Appln.1520 of 2010 (CMA No.2/2010), the third respondent stands exempted from paying interest for the delay of 50 days occurred in filing the appeal. Therefore, the third respondent is exonerated from paying interest for those days. MACA stands allowed accordingly. Sd/- **MARY JOSEPH SMA JUDGE**