M.A.C.A. No.1953 of 2005

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934 MACA.No. 1953 of 2005 ( ) ------------------------OPMV.836/2001 of MACT MUVATTUPUZHA APPELLANTS/CLAIMANTS 1, 2, 3 & 5 IN O.P. (MV): ------------------------------------------------------------------- 1. LISAMMA, AGED 47, W/O.LATE JOSE, NADUVILEDATH HOUSE, ANCHELPETTY P.O., PAMPAKUDA. 2. BOBY, AGED 20, S/O.LATE JOSE, NADUVILEDATH HOUSE, ANCHELPETTY P.O., PAMPAKUDA. 3. JOBY (MINOR) AGED 17, S/O.LATE JOSE, ANCHELPETTY P.O. PAMPAKUDA REPRESENTED BY MOTHER LISSAMMA, NADUVILEDATH HOUSE ANCHELPETTY P.O. PAMPAKUDA. 4. SARASAMMA JOHN, AGED 74, W/O.LATE M.V.JOHN, NADUVILEDATH HOUSE, ANCHELPETTY P.O. PAMPAKUDA. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENT(S)/RESPONDENTS IN O.P.(MV) ------------------------------------------------------------- 1. P.V.JOHN, PULPRAKUZHIYIL HOUSE, AMBALLOOR P.O. KANJIRAMATTOM. 2. SHIBY PAUL, S/O.K.V.PAULOSE, KAPPILANGATTU HOUSE, EZHAKKARANADU P.O. PUTHENCRUZ VIA. 3. THE UNITED INDIA INSURANCE CO.LTD., R.S.ROAD, ALUVA. R3 BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2012, THE COURT ON 19.10.2012 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.A.C.A. No.1953 of 2005 ----------------------------------------------Dated 19[th] October, 2012. J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the petitioners 1, 2, 3 and 5 in O.P.(MV) No.836 of 2001 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. 2. The case of the petitioners in the O.P.(MV) is briefly as follows : On 13.2.2001, while deceased Jose was driving a car bearing Registration No.KL-7/R-5380 through Piravom - Ernakulam road from west to east, a bus bearing Registration No.KL-5/A-9772 driven by the second respondent in a rash and negligent manner came from opposite direction and collided with the car, as a result of which Jose sustained serious injuries and on the way to the hospital, he succumbed to the injuries. The accident was due to the rash and negligent driving of the second respondent. The first respondent was the owner and the third respondent was the insurer of the bus. The first petitioner is the widow, petitioners 2 and 3 are the minor children and petitioners 4 and 5 are the father and mother of deceased Jose. They claimed `30,00,000/- as compensation. During the pendency of the proceedings, the 4[th] petitioner died. 2 M.A.C.A. No.1953 of 2005 3. Respondents 1 and 2 remained _ex parte_ . The third respondent filed written statement admitting the policy of the bus and contended that the accident was not due to the negligence of the second respondent and that the compensation claimed is excessive. 4. Before the Claims Tribunal, PW1 was examined and Exts.A1 to A16 and B1 were marked. The Tribunal, on considering the evidence on record, found that the accident was due to the rash and negligent driving of the second respondent and awarded a compensation of `6,90,000/- to the petitioners 1 to 3 and 5 with 6% interest from the date of the petition till date of realization from the respondents and the third respondent was directed to deposit the amount as the insurer. Out of the compensation awarded, `25,000/- was ordered to be given to the 5[th] petitioner. The remaining amount was ordered to be apportioned equally among respondents 1 to 3. Being dissatisfied with the quantum of compensation awarded, the petitioners 1, 2, 3 and 5 filed this appeal. 3 M.A.C.A. No.1953 of 2005 5. Heard the learned counsel for the appellants and the learned counsel for the Insurance Company. 6. The learned counsel for the appellants submitted that the compensation awarded is very low and that the appellants are entitled to get enhanced compensation under various heads. The learned counsel appearing for the Insurance Company supported the award. 7. The Tribunal awarded compensation under various heads as follows : |**_Sl._**<br>**_No_**|**_Head_**|**_Amount awarded(Rs)_**| |---|---|---| |1|Compensation for loss of dependency|624,000| |2|Funeral expenses|5,000| |3|Transportation expenses|1,000| |4|Compensation for pain and suffering|5,000| |5|Compensation for loss of love and affection|30,000| |6|Compensation for loss of expectation in life|10,000| |7|Compensation for loss of consortium|15,000| ||Total|6,90,000| ## 8. There is no dispute that Jose died at the age of 48 years. Ext.A13 is a certificate issued by the Financial Controller of the employer. It shows that Jose was employed in 4 M.A.C.A. No.1953 of 2005 his organization as Senior Sales and Service Engineer from 1[st] October, 1998 to 18[th] February, 2001 and that his last drawn gross salary was `14,320/-. The details of salary given in Ext.A13 are as follows : |Basic pay|`6,400| |---|---| |House Rent Allowance|`3,200| |Other Allowance|`800| |Addl. Allowance|`640| |Medical Allowance|`640| |Leave Travel Allowance|`640| |Conveyance Allowance|`2000| ||----------| |Gross salary|`14,320| ||=======| 9. The Tribunal took the basic salary of `6,400/- as the monthly income of the deceased on the ground that House Rent Allowance, Medical Allowance, Conveyance Allowance etc. are paid to meet the expenses required for performing the duties attached to the office. In the decision reported in Sunil Sharma v Bachitar Singh [2011(2) KLT 451 (SC)], it was held that amount paid as H.R.A., C.C.A., E.P.F. and G.I.S. and medical M.A.C.A. No.1953 of 2005 5 allowances should be taken into consideration in calculation of income of deceased. In view of the above decision, all allowances, except conveyance allowance of `2,000/- can be taken into consideration in assessing the monthly income of the deceased. Calculating on that basis, the income of the deceased can be fixed as `12,320/- per month. In the decision cited above, it was further held thus : “Where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3[rd] ) where the number of dependent family members is 2 to 3, onefourth (1/4[th] ) where the number of dependent family members is 4 to 6, and one-fifth (1/5[th] ) where the number of dependent family members exceed six.” Since there were five dependent family members at the time of death of Jose, ¼ amount has to be deducted towards personal expenses of the deceased. Deducting ¼ of the income, the dependency of the petitioners per month will come to `9,240/-. Ext.A14 is a certificate issued by the Assistant Manager of Elcome Marine Services Private Ltd. to the effect that Mr.Jose would have retired at the age of 58 years as per the Company's 6 M.A.C.A. No.1953 of 2005 Retirement Rules. Therefore, it is clear that he had ten years' more service before his retirement. Therefore, we are of the view that '10' can be taken as the suitable multiplier. Calculating on that basis, the petitioners are entitled to get `11,08,800/- in the place of `6,24,000/- awarded by the Tribunal towards compensation for loss of dependency. Towards compensation for pain and suffering, the petitioners are entitled to get `10,000/- instead of `5,000/- awarded by the Tribunal. The petitioners are entitled to get `40,000/- towards compensation for loss of love and affection in the place of `30,000/- awarded by the Tribunal. We also award `25,000/towards compensation for loss of consortium instead of `15,000/- awarded. Thus, in total, the petitioners are entitled to get an additional compensation of `5,09,800/-. Accordingly, this appeal is allowed in part and the appellants are allowed to receive an additional compensation of `5,09,800/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit from the M.A.C.A. No.1953 of 2005 7 respondents and the third respondent is directed to deposit the amount within three months from this date. Out of the additional compensation awarded, the 4[th] appellant(5[th] petitioner) is entitled to get `50,000/- and the balance amount shall be equally divided among appellants 1 to 3. There is no order as to costs. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)