M.A.C.A. No.1792 of 2008

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 6TH DAY OF JANUARY 2014/16TH POUSHA, 1935** # **MACA.No. 1792 of 2008** **-------------------------OP(MV)NO. 3328/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 03-10-2007** **....** ## **APPELLANTS:PETITIONERS:** **----------------------------------------------** **1. K.SARASWATHY , AGED 53 YEARS, W/O. LATE SRI.K.RAGHAVAN.** **2. R.RAJESH KUMAR, AGED 24 YEARS, S/O. LATE SRI.K.RAGHAVAN.** **3. S.R.RAJI, AGED 23 YEARS, D/O. LATE SRI.K.RAGHAVAN.** **4. KUTTY ,AGED 86 YEARS, W/O. LATE SRI.KOCHU KUNJU.** **BY ADV. SRI.ANIL S.RAJ** ## **RESPONDENT(S):RESPONDENTS:** **----------------------------------------------------** ## **1. A.S. SIVADASAN, S/O. A.R.SREENIVASA RAO, ALUNKAL HOUSE, ELAMAKKARA, COCHIN 682 026.** ## *** 2. P.N.SUNIL, S/O. NARAYANAN,** **PUTHUVALSTHALATH HOUSE, NEAR AGRICULTURAL UNIVERSITY, MURIKKUMPADAM, AZHEEKAL P.O., VYPEEN. (D E L E T E D)** ## **3. THE UNITED INDIA INSURANCE COMPANY LIMITED , SHANMUGHAM ROAD, COCHIN 682 031.** ***RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANTS VIDE ORDER DTD. 17/12/2013 IN I.A.NO.3411/2013 IN MACA NO.1792/2008.** **R3 BY SRI.MATHEWS JACOB,SENIOR ADVOCATE ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## S. SIRI JAGAN & K. RAMAKRISHNAN, JJ. -----------------------------------------------------------------M.A.C.A. No.1792 of 2008 --------------------------------------------------------------------Dated this the 6[th] day of January, 2014 ## J U D G M E N T ## S. Siri Jagan, J The wife, two minor children and aged mother of late Raghavan are the appellants herein. Raghavan died in a motor vehicle accident, caused by the negligent driving of a vehicle, owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. The appellants filed O.P. (M.V.).No.3328/2000 before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of Raghavan. The tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: M.A.C.A. No.1792 of 2008 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of dependency|8,64,000| |2|Transportation|2, 500| |3|Funeral expenses|2, 500| |4|Pain and suffering|10, 000| |5|Loss of consortium|10, 000| |6|Loss of estate|10, 000| ||Total|₹ 8,99,000/-<br>rounded off<br>to<br>₹ 9,00,000/-| Dissatisfied with the quantum of compensation awarded by the tribunal, the appellants have filed this appeal, seeking enhanced compensation. 2. The accident was on 28.09.2000 and deceased Raghaven was 51 years old at the time of the accident. He was an Operator in the Bharath Petrolium Corporation, earning a monthly income of 17,888/-. The₹ first contention of the appellants is that, after accepting his monthly income as 17,888/-, the tribunal first deducted₹ 1/3[rd] for recoveries and a further 1/3[rd] for personal expenses M.A.C.A. No.1792 of 2008 3 of the deceased. The salary certificate does not mention any recoveries and therefore, the deduction of 1/3[rd] for recoveries is unsustainable is the first contention. It is further submitted that, the tribunal has deducted 1/3[rd] for personal expenses of the deceased, which is wrong, going by the decision in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , in which the Supreme Court has held that, where the number of dependants are 4 to 6, only 1/4[th] could have been deducted for personal expenses of the deceased. It is further submitted that, the compensation awarded for loss of consortium and funeral expenses is on the lower side. It is also pointed out that no amount has been awarded towards loss of love and affection of the two minor children and the aged mother. The appellants would also contended that the adoption of multiplier is wrong and it should have been 11 instead of 9. 4 ## M.A.C.A. No.1792 of 2008 3. On the other hand, the learned counsel for the insurance company would argue to sustain the impugned award. The learned counsel pointed out that, even assuming the multiplier as 11, since Raghaven would have retired at the age of 60, only 9 could have been taken for the purpose of calculating loss of dependency. It is further pointed out that the tribunal has not deducted any amount towards income tax, which should have been done in accordance with the decision in Sarla Verma’s case (supra). 4. We have considered the rival contentions in detail. 5. The retirement age of Raghagan was 60. Therefore, had be been alive, he would have contributed to the family the monthly salary of 17,888/- for 9 more years.₹ Further going by the decision of the Supreme Court in **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** , even for M.A.C.A. No.1792 of 2008 5 the persons in the age group of 50 to 60 also, 15% should be added for future prospects. But at the same time, going by Sarla verma’s decision (supra), 20% has to be deducted for income tax. Since, the dependants are 4 in number, only 1/4[th] could have been deducted for personal expenses of the deceased, going by Sarla Verma’s case (supra). We are inclined to take 9 as the multiplier for the period, during which the deceased would have continued in service. For the balance multiplier out of 11, (since for a person aged 51, the proper multiplier is 11) loss of dependency can be awarded only on a notional monthly income of 3,000/-.₹ For the multiplier of 9, the loss of dependency would come to ₹ 13,33,014/- (17,888x12x9x115%x80%x3/4). We are adopting 3,000/- as the notional income for the period₹ after retirement. For the balance multiplier out of 11, after retirement, the loss of dependency would come to 54,000/-₹ (₹3,000x12x2x3/4). The total loss of dependency would be M.A.C.A. No.1792 of 2008 6 ₹ 13,87,014/-. But only 8,64,000/- has been awarded by₹ the tribunal. The balance due to the appellants would be ₹5,23,014/- under the head loss of dependency. 6. The first appellant, wife of Raghavan, was aged only 45 years at the time of death of her husband. She had practically no chance of a re-marriage. Therefore, she is entitled to 40,000/- towards loss of consortium instead₹ of 10,000/- awarded by the tribunal. We are inclined to₹ enhance the compensation for funeral expenses to ₹ 10,000/- from 2,500/- awarded by the tribunal. Since,₹ two of the children are minors and there is an aged mother also, we are inclined to award compensation for loss of love and affection. We fix that amount as 30,000/-. Adding₹ together, the appellants would be entitled to additional compensation of 5,90,514/-, over and above what has been₹ awarded by the tribunal. This amount would carry interest at the rate of 9% per annum from the date of the claim M.A.C.A. No.1792 of 2008 7 petition, till date of payment. The 3[rd] respondent insurance company is directed to deposit this amount also within two months. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss