M.A.C.A. No.659/2012 (OPMV 1933/2006)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF DECEMBER 2023/13TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 659 OF 2012`** ``` OPMV 1933/2006 OF MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL ,ERNAKULAM`** ## **`APPELLANTS/PETITIONERS:`** - `1 RETHNAMMA VASUDEVAN, AGED 56 YEARS, W/O.LATE V.G.VASUDEVAN, OMKARAM, H.NO.19/1048, P.D. ROAD, PALLURUTHY, ERNAKULAM 682016` - `2 MAYA V.NAIR, AGED 25 YEARS, D/O. LATE V.G. VASUDEVAN, OMKARAM, P.D.RAOD, PALLURUTHY, ERNAKULAM.` - `3 MANOJ VASUDEVAN AGED 23 YEARS S/O.LATE V.G. VASUDEVAN, OMKARAM, P.D.ROAD,PALLURUTHY, ERNAKULAM BY ADV SRI.K.V.RAJAN` ## **`RESPONDENTS/RESPONDENTS:`** - `1 ABDUL SALAM, MANATH HOUSE, PEECHAMPALLY, THRIKKAKARA P.O. VAZHAKKALA, ERNAKULAM 682021` - `2 SUNIL KUMAR O.S., S/O.SOMAN CHITTALAM NIKARTHIL HOUSE, BENNY ROAD, MARUNNUKADA, PALLURUTHY P.O.KOCHI - 682006` - `3 ORINETAL INSURANCE CO.LTD. BRANCH OFFICE, UTHAMAR GANDHI SALAI, 2ND FLOOR, ROSY TOWERS, NUNGAMBAKKAM, CHENNAI 400071 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.659/2012 : 2 : ## JUDGMENT The appellants are the petitioners in OP(MV) No.1933/2006 on the files of the Motor Accidents Claims Tribunal, Ernakulam. 2. The said claim petition was submitted by the appellants seeking compensation for the death of one V.G. Vasudevan, due to the injuries sustained to him in a motor accident that occurred on 07.06.2006. The deceased was the husband of the 1[st] appellant and the father of appellants 2 and 3. The accident occurred when the deceased was boarding a bus bearing registration No.KL-07/AU 5225, the 2[nd] respondent in a rash and negligent manner moved forward the said bus and consequently he had fallen down and sustained injuries. The said vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was aged 53 years and was working as a technician in Southern Railway with a monthly income of Rs.12,163/-. The compensation was claimed in such circumstances. M.A.C.A. No.659/2012 : 3 : 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy. However, they contended that the driver of the bus was not having valid badge at the relevant time and therefore sought exoneration from the liability. They disputed the quantum of compensation as well. 4. The evidence in this case consists of Exts.A1 to A11 from the side of the appellants and no evidence was adduced by the respondents. 5. After the trial, the tribunal came to the conclusion that that, the accident occurred due to the negligence on the part of the 2[nd] respondent and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.8,87,893/- and the said amount was directed to be deposited by the 3[rd] respondent insurance company along with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. M.A.C.A. No.659/2012 : 4 : 6. Heard Sri. K.V. Rajan, the learned counsel appearing for the appellant and Sri. Mathew Jacob, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The main contention put forward by the learned counsel for the appellant is with regard to the inadequacy of compensation awarded under various heads. The main contest is on the compensation for loss of dependency. It was pointed out that, the monthly income accepted by the tribunal was not correct and as it was not in tune with the salary certificate produced. Moreover, the tribunal applied split multiplier, taking note of the remaining period of service which the deceased had and applied a different amounts as monthly income, for the period during which he was in service and for the post retirement period. According to the learned counsel, the method of such computation is against the observations made in Puttamma v. Narayana Reddy [ 2014 (1) KLT 738 SC] and Sumathi v. National Insurance Co. Ltd. [2022 ACJ 1315]. However, the said contention was opposed by the learned counsel appearing for the insurance company by pointing out that a reasonable amount has been awarded by the tribunal. M.A.C.A. No.659/2012 : 5 : 8. After considering the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellant. As regards the monthly income, it is evident that while assessing the monthly income, the tribunal erroneously took the basic pay as Rs.3,375/- whereas the same was Rs.5,375/-. This is an apparent error and this needs to be rectified. While reassessing the monthly income after rectifying the said mistake, it would come to Rs.11,387/-. As rightly contended by the learned counsel for the appellants, the practice of split multiplier merely taking into account the remaining period of service before attaining the age of superannuation was deprecated by the Hon’ble Supreme Court in Puttamma ’s case and Sumathi ’s case (supra). In Sumathi ’s case (supra), it was categorically observed by the Hon’ble Supreme Court that the split multiplier cannot be applied, merely because the deceased was to retire in four years. In this case, it is evident that the deceased had 7 years of service remaining at the time of the death. Therefore, in the light of the principles laid down in the decisions referred to above, the salary which was being drawn by the appellant at the time of the death has to be applied for the entire multiplier. It is also to be noted in M.A.C.A. No.659/2012 : 6 : this regard that, as the deceased was aged 53 years at the time of the accident and he was employed in a regular vacancy with regular monthly income, the addition to be made towards future prospects was 15%. Thus, while reassessing the compensation for loss of dependency, in the light of the above criteria, the amount would come to Rs.11,52,360/- [(11387 + 40%) x12x 11 x 2/3] . 9. The next aspect is relating to the loss of consortium. The deceased left behind the wife and two children. As per Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130] and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], all the said appellants are entitled for compensation for loss of consortium at the rate of Rs.40,000/- each. Thus the compensation payable under the head of loss of consortium is determined as Rs.1,20,000/-. In the light of National Insurance Company Ltd. v. Pranay Sethi [ 2017(4) KLT 662], an amount of Rs.15,000/- each has to be granted towards loss of estate and funeral expenses. The tribunal has awarded an amount of Rs.10,000/- towards pain and suffering and the same can be retained, as it appears to be a M.A.C.A. No.659/2012 : 7 : reasonable amount. Towards medical expenses the amount awarded by the tribunal was Rs.3,94,085/- and this is also to be accepted. As regards the amount awarded towards loss of love and affection, I am of the view that, in the light of the observations made by the Hon’ble Supreme Court in United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], the said amount cannot be granted, as the compensation is already awarded for loss of consortium and it would take care of the compensation for love and affection as well. Thus in the light of the aforesaid observations, the compensation which the appellants are entitled are reassessed in the following manner: |Loss of dependency|11,52,360| |---|---| |Loss of consortium|1,20,000| |Loss of estate|15,000| |Pain and sufferings|10,000| |Medical expenses|39,485| |Funeral expenses|15,000| |Total|13,51,845| Thus, in the light of the aforesaid observations and findings, this appeal is allowed. The award dated 13.01.2011 passed by the Motor Accident Claims Tribunal, Ernakulam in OP(MV) No.1933/2006 is hereby modified by refixing the total M.A.C.A. No.659/2012 : 8 : compensation as Rs.13,51,845/- (Rupees thirteen lakhs fifty one thousand eight hundred and forty five only) and the said amount shall be deposited by the 3[rd] respondent insurance company along with interest at the rate of 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited. It is further clarified that, the apportionment of the said amount shall be made as ordered in the award. ZIYAD RAHMAN A.A. JUDGE ncd/