M.A.C.A. Nos. 1623/2012 & 1176/2013

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.1623 OF 2012** **AGAINST THE AWARD IN OPMV 72/2005 DATED 31-10-2011 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** ## **APPELLANT/S:** **JAKE THOMAS (MINOR) S/O.DR.TIGY THOMAS JACOB, REPRESENTED BY NEXT FRIEND DR.LUCY JACOB, W/O.JACOB, BOTH ARE RESIDING AT PANAMPUNNA KIZHAKKEDAM HOUSE, MARIYATHURUTHU P.O., KOTTAYAM.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD** ## **RESPONDENT/S:** **1 DR.TIGY THOMAS JOCOB RESIDING AT PANAMPUNNA KIZHAKKEDAM HOUSE, MARIYATHURUTHU P.O., KOTTAYAM DISTRICT. 2 THE NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, SASTRI ROAD, KOTTAYAM-686001 3 DR.TIGY THOMAS JACOB RESIDING AT PANAMPUNNA KIZHAKKEDAM HOUSE, MARIYATHURUTHU P.O., KOTTAYAM DISTRICT.** **R1 BY ADV. SRI.GEORGE CHERIAN SR. R1 BY ADV. SMT.K.S.SANTHI R2 BY ADV. SRI.GEORGE CHERIAN (SR.)** **R2 BY ADV. SMT.K.S.SANTHI, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON** **26-03-2021, ALONG WITH MACA.1176/2013, THE COURT ON 30-03-2021 DELIVERED THE FOLLOWING:** MACA Nos. 1623/2012 & 1176/2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.1176 OF 2013** **AGAINST THE AWARD IN OPMV 72/2005 DATED 31-10-2011 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** ## **APPELLANT/S:** **THE NATIONAL INSURANCE CO. LTD. KOTTAYAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADV. SRI.GEORGE CHERIAN (SR.) BY ADV. K.S. SANTHI** ## **RESPONDENT/S:** **1 JAKE THOMAS (MINOR), (DECLARED AS MAJOR) REPRESENTED BY NEXT FRIEND DR.LUZY JACOB, PANAMPUNNA KIZHAKKEDAM HOUSE, MARIYATHURUTHU.P.O., KOTTAYAM, PIN-686001. (DECLARED AS MAJOR WITH EFFECT FROM 19.01.2018 AS PER ORDER DATED 29.01.2019 IN I.A NO.2/2019) 2 DR.TIGY THOMAS JACOB PANAMPUNNA KIZHAKKEDAM HOUSE, MARIYATHURUTHU.P.O., KOTTAYAM, PIN-686001. R1 BY ADV. SRI.P.S.APPU R1 BY ADV. SRI.A.R.NIMOD R1 BY ADV. SRI.T.C.SURESH MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2021, ALONG WITH MACA.1623/2012, THE COURT ON 30-032021 DELIVERED THE FOLLOWING:** MACA Nos. 1623/2012 & 1176/2013 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- ``` ``` M.A.C.A. No. 1623 of 2012 & M.A.C.A. No. 1176 of 2013 ------------------------------------------ Dated this the 30[th] day of March 2021 ``` ## **`JUDGMENT`** ``` These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. The 2[nd] respondent in O.P(M.V) No.72/2005 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam filed M.A.C.A. No.1176/2013. The petitioner in the above O.P(M.V) is the appellant in M.A.C.A No.1623/2012. O.P.(M.V) No. 72/2005 was disposed of along with O.P.(M.V) No. 71/2005. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). ``` ``` 2. The short facts are like this:- On 01.03.2004 at about 06.45 a.m., the deceased 'Dr. Sheena Elizabeth Alexander' along with her husband, who is the 1[st] ``` MACA Nos. 1623/2012 & 1176/2013 4 ``` respondent and her minor child aged 4 years, who is the petitioner in O.P(M.V)No.71/2005 were travelling in the car bearing Registration No. KL-5/H-597 from Gandhinagar to Thiruvananthapuram. When the car reached at Venjaramoodu, it hit against the lorry bearing Registration No. KL-07/E-8055 which was coming from the opposite direction. The car went to the wrong side of the road and hit against the front portion of the lorry resulting in the accident. Dr.Sheena Elizabeth Alexander sustained serious injuries and she succumbed to the injuries on the same day at 9.00 a.m. According to the petitioner, the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent, who is the owner cum driver of the car. Admittedly, Dr.Sheena Elizabeth Alexander was studying for 2[nd] year D.G.O in Medical College Hospital, Kottayam. She was getting stipend to the tune of Rs.6,657/-. O.P(M.V) No.72/2005 was filed by the minor son for getting compensation for ``` MACA Nos. 1623/2012 & 1176/2013 5 ``` the death of his mother. ``` ``` 3. To substantiate the case, Exhibits A1 to A9 were marked on the side of the petitioners. One witness was examined on the side of the petitioner as PW1. Exhibit B1 to B4 were marked on the side of the respondents. Exhibit X1 is the disability certificate. After going through the evidence and documents, the Tribunal found that the petitioner is entitled an amount of Rs.19,19,500/- (Rupees Nineteen Lakhs Nineteen Thousand and Five Hundred Only) as compensation with interest at the rate of 7.5% p.a., from the date of application till realisation. Aggrieved by the quantum of compensation, the petitioner filed M.A.C.A. No. 1623/2012. The 2[nd] respondent also filed M.A.C.A. No.1176/2013 alleging that the quantum of compensation fixed is excessive. ``` `4. Heard the learned counsel for the 2[nd]` `respondent and the learned counsel for the petitioner.` `5. I will consider both the appeals separately.` MACA Nos. 1623/2012 & 1176/2013 6 ## **`M.A.C.A No. 1176/2013`** ``` 6. This is an appeal filed by the 2[nd] respondent/Insurance Company mainly challenging two aspects. The learned counsel for the 2[nd] respondent submitted that, the Tribunal while assessing the dependency compensation only deducted 1/3[rd] for the personal and living expenses of the deceased instead of one half, in the light of the principle laid down in Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802]. The learned counsel also submitted that, the multiplier used by the Tribunal is '18' and the correct multiplier is '17'. The learned counsel for the petitioner submitted that, there are two dependents namely the petitioner and the 1[st] respondent. The 1[st] respondent is the husband of the deceased and the father of the petitioner. In such circumstances, the learned counsel submitted that, the Tribunal justified in deducting only 1/3[rd ] in the light of the decision in ``` MACA Nos. 1623/2012 & 1176/2013 7 ``` Sarla Verma's case (supra). The learned counsel also relied the judgment of this Court in New India Assurance Co. Ltd. v. Ayisha M. and Others [2011 (3) KLT 319]. ``` ``` 7. Admittedly, the claim petition was filed by the minor son of the deceased. He has no case that there is any other dependents to the deceased. The 1[st] respondent in the claim petition is the father of the petitioner and husband of the deceased. When the petitioner himself has no case that there is any other dependents and he is the only dependent, I think in the light of the decision in Sarla Verma's case (supra), the Tribunal ought have deducted one half towards the personal and living expense of the deceased. Therefore, according to me, the Tribunal erred in deducting only 1/3 towards the personal and living expenses of the deceased. Of course the learned counsel for the petitioner relied the judgment of the Apex Court inSurti Gupta v. United India ``` MACA Nos. 1623/2012 & 1176/2013 8 ## _**`Insurance Co. Ltd and another (2015 (11) SCC`**_ ``` 457). It is true that in the above decision, the Apex Court observed like this:- ``` ``` “On deduction of 1/3[rd] of the annual income towards personal expenses and applying the appropriate multiplier as per the principles laid down by this Court in the case of Sarla Verma's case (supra) the future loss of dependency suffered . by the appellant is calculated at Rs.8,73,600/-” ``` ``` 8. The learned counsel submitted that, in that case also there was only one dependent. In that case, the mother died and only one minor daughter filed by the claim petition and even then the Tribunal deducted only 1/3rd towards the personal and living expenses. But no principle is laid down by the Apex Court in the above decision. When the principle is laid down by the Apex Court in Sarla Verma's case (supra), in detail, I am not in a position to accept the contention of the learned counsel based on the decision of the Apex ``` MACA Nos. 1623/2012 & 1176/2013 9 ``` Court in Surti Gupta's case (supra). As far as the multiplier is concerned, the learned counsel for the petitioner also conceded that, the correct multiplier is '17'. ``` ## **`M.A.C.A No.1623/2012`** ``` 9. This is an appeal filed by the petitioner for enhancement of compensation. The main grievance of the petitioner is that, the notional income fixed by the Tribunal to the deceased is Rs.13,000/-. The learned counsel submitted that, admittedly, the deceased completed MBBS course and thereafter she was pursuing her studies in 'DGO'. The learned counsel submitted that, in the claim petition, it is stated that the deceased will get at least Rs.15,000/-. The learned counsel relied on the judgment of the Apex Court in Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma & Anr. (2015 SAR (Civil) 148) and submitted that the Apex Court had taken the future income of a Medical student as Rs.25,000/-. The ``` MACA Nos. 1623/2012 & 1176/2013 10 ``` learned counsel for the Insurance Company/2nd respondent submitted that, the claim of the petitioner in the claim petition is only Rs.6,657/- . The learned counsel submitted that, even in the claim petition, the petitioner only stated that the deceased will get at least an amount of Rs.15,000/- and therefore, this Court may not accept the principle laid down by the Apex Court. ``` ``` 10. For deciding the above question, it will be better to extract the relevant portion of the decision of the Apex Court in Ashvinbhai Jayantilal Modi's case (Supra), the relevant portion is extracted hereunder; ``` ``` The Tribunal and the High court have not taken into proper consideration that the deceased was a student of medicine at the time of the accident while determining his future income. The courts below have wrongly ascertained the future income of the deceased at only Rs.18,000/- per month, which in our view is too less for a medical graduate these days. Therefore, the courts below have failed ``` MACA Nos. 1623/2012 & 1176/2013 11 ``` in following the principles laid down by this Court in this aspect in the above case. The deceased was a diligent and outstanding student of medicine who could have pursued his M.D. after his graduation and reached greater heights. Today, medical practice is one of the most sought after and rewarding professions. With the tremendous increase in demand for medical professionals, their salaries are also on the rise. Therefore, we have no doubt in ascertaining the future income of the deceased at Rs.25,000/- p.m. i.e., Rs.3,00,000/- p.a. Further, deducting 1/3rd of the annual income towards personal expenses as per Oriental Insurance Co. Ltd. v. Deo Patodi and Ors, and applying the appropriate multiplier of 13, keeping in mind the age of the parent of the deceased, as per Sarla Verma case the guidelines laid down in (Supra), we arrive at a total loss of dependency at Rs.26,00,000/- [(Rs.3,00,000/- minus 1/3 X Rs.3,00,000/-)X13]. ``` ``` 11. In the above case, the accident was occurred ``` ``` on 12.07.2002 and the deceased was a Medical ``` MACA Nos. 1623/2012 & 1176/2013 12 ``` Student aged 19 years. The Apex Court fixed the monthly income as Rs.25,000/-. I think this Court can adopt the same principle in the facts and circumstances of the case also. As I mentioned earlier, the deceased in this case completed her MBBS Course and she was pursuing DGO which is a post graduation course. In such circumstances, this Court can safely fix the monthly income of the deceased as Rs.25,000/-, while assessing the dependency compensation. The accident in this case is happened in the year 2004 and the accident in the case decided by the Apex Court in Ashvinbhai Jayantilal Modi's case (Supra) was in the year 2002. Even then, the Apex Court fixed the monthly income of MBBS student as Rs.25,000/-. In such circumstances, this Court can safely fix the monthly income of post graduate medical student as Rs.25,000/-. Of course, the learned counsel for the 2[nd] respondent submitted that, the claim of the petitioner in the claim petition is only Rs.6,657/-. But, it is clear ``` MACA Nos. 1623/2012 & 1176/2013 13 ``` from the claim petition itself that the petitioner was only mentioned the stipend amount, she was getting at that time. Therefore, this Court can safely fix the monthly income of the deceased as Rs.25,000/-. Even though, the learned counsel for the petitioner submitted that, towards future prospects also the sufficient amount may be added, I am refusing the same because even according to the petitioner in the claim petition the monthly income of the deceased is around Rs.15,000/-. Therefore, I am denying any amount towards future prospects in the facts and circumstances of the case. Moreover, the petitioner will get a just compensation in this case. Then the compensation for dependency is to be recalculated in the following manner:- ``` ``` Rs.25000 X 12 X 17 X ½ = 25,50,000/- ``` ``` The Tribunal awarded an amount of Rs. 18,72,000/- which is to be deducted from the above amount. Then the balance amount will be ``` MACA Nos. 1623/2012 & 1176/2013 14 ``` Rs.25,50,000-18,72,000 =6,78,000/- (Rupees Six Lakhs Seventy Eight Thousand Only). ``` ``` 12. The Tribunal awarded an amount of Rs.30,000/- towards loss of love and affection to the petitioner who is the only son of the deceased. Petitioner is entitled an amount of Rs.40,000/- towards consortium in the light of the dictum laid down in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130],. Even though the learned counsel for the petitioner submitted that the husband of the deceased, who is the 1[st] respondent is also entitled compensation for consortium, according to me, he is not a petitioner and he is not entitled for the same. Therefore, an additional amount of Rs.10,000/- (Rupees Ten Thousand Only) more is entitled by the minor petitioner towards loss of love and affection. ``` ``` 13. As far as loss of estate is concerned, an amount of Rs. 5,000/- is allowed by the Tribunal. In the ``` MACA Nos. 1623/2012 & 1176/2013 15 ``` light of the decision of the Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT ``` ``` 662],the appellants are entitled Rs.10,000/- (Rupees Ten Thousand Only) more towards loss of estate. ``` ``` 14. Similarly, for funeral expenses, an amount of Rs. 5,000/- is allowed by the Tribunal. In the light of the decision of the Apex Court inNational Insurance ``` ``` Co. Ltd v. Pranay Sethi [2017(4) KLT 662],the appellants are entitled Rs.10,000/- (Rupees Ten Thousand Only) more towards funeral expenses. ``` `15. The enhanced compensation entitled by the` `appellant can be summarized like this:-` ``` HeadAmount Loss of dependency Rs. 6,78,000/- Funeral Expenses Rs. 10,000/- Loss of love and affection Rs. 10,000/- Loss of estate Rs. 10,000/- TotalRs.7,08,000/- ``` MACA Nos. 1623/2012 & 1176/2013 16 ``` Therefore, these appeals are allowed in part. The impugned award is modified and the appellants are entitled an enhanced compensation of Rs.7,08,000/- (Rupees Seven Lakhs Eight Thousand Only) with interest at the rate of 7.5% p.a, from the date of petition till realisation. Respondent No.2/National Insurance Co. Ltd. is directed to pay the enhanced compensation with interest. ``` ## **`Sd/-`** ``` P.V.KUNHIKRISHNAN JUDGE ``` ``` avs ```