MACA Nos. 2281 of 2012 & 1444 of 2012: T.A. Sarada and others v. Jayan s/o Raman and The United India Insurance Co. Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945** **MACA NO. 2281 OF 2012** **OPMV 4150/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/S:** 1 T.A.SARADA W/O.LATE K.K.RAVI. 2 BIJU RAVI S/O.LATE RAVI. 3 BINU RAVI S/O. LATE RAVI. ALL ARE RESIDING AT KOTTIKKAL HOUSE,AMALA NAGAR, P.O. VILANGAN, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 JAYAN S/O.RAMAN, RESIDING A T KUMARAN KANDATH HOUSE, PALU DESOM, THAIKKAD, THRISSUR 680 104. 2 THE UNITED INDIA INSURANCE COMPANY LIMITED. GURUVAYOOR ROAD, THRISSUR 680 021. 3 MOHAMMED YAISM S/O.LATE ABOOBACKER, RESIDING AT KALLUVALAPPIL HOUSE, P.O. GURUVAYOOR, THRISSUR 680 010. BY ADV P.K.ManojKumar ADV. S ADV. SRI. MATHEW JACOB THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, ALONG WITH MACA.1444/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. Nos.2281 & 1444 of 2012 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945** **MACA NO. 1444 OF 2012** **OPMV 4150/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/S:** UNITED INDIA INSURANCE COMPANY THRISSUR NOW REPRESENTED BY ITS DEPUTYMANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** 1 T.A. SARADA S/O. LATE K.K. RAVI, KOTTIKKAL HOUSE, AMALA NAGAR.P.O., VILANGAN THRISSUR DISTRICT-680315. 2 BIJU RAVI S/O. LATE RAVI,KOTTIKKAL HOUSE, AMALA NAGAR.P.O., VILANGAN THRISSUR DISTRICT-680315. 3 BINU RAVIMINOR S/O. LATE RAVI, REPRESENTED BY HIS MOTHER 1ST RESPONDENT T.A. SARADA KOTTIKKAL HOUSE, AMALA NAGAR.P.O., VILANGAN THRISSUR DISTRICT-680315. BY ADVS. SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD SRI.T.C.SURESH MENON **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, ALONG WITH MACA.2281/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. Nos.2281 & 1444 of 2012 : 3 : ## **JUDGMENT** Both these appeals arise from the award passed in OP(MV) No.4150/2003 on the files of the Motor Accident Claims Tribunal, Thrissur. 2. The said claim petition was submitted by the legal heirs of one Ravi who died due to the injuries sustained in a motor accident that occurred on 22.03.2003. (For the sake of convenience, the parties in these appeals are hereinafter referred to on the basis of the respective ranks in the claim petition). 3. According to the petitioners, the accident occurred when the motorcycle bearing registration No.KL-11-A6798 ridden by the deceased was hit by a car bearing registration No.KL-8D-5099 driven by the 2[nd] respondent in a rash and negligent manner. Due to the impact, the deceased Ravi was thrown away and fell down on the road. Immediately thereafter he was taken to Medical College Hospital, Thrissur and treated as an out patient. Later, on 29.03.2003, he was again admitted to Amala Hospital, Thrissur, as he fell down, in his house consequent to the injuries sustained in the accident and while undergoing treatment in the said hospital, he M.A.C.A. Nos.2281 & 1444 of 2012 : 4 : passed away on 31.03.2003. The deceased was working as a Deputy Manager in State Bank of India with a monthly income of Rs.28,125/-. The petitioners were the wife and children of the deceased. The claim petition was submitted in such circumstances seeking compensation. 3. According to the petitioners, the death of the deceased was due to the injuries sustained in the accident. During the pendency of the claim petition, the 1[st] respondent, the owner of the car passed away and as his legal heir, the 4[th] respondent was impleaded. 4. The claim petition was resisted only by the 3[rd] respondent, the insurer of the car. They denied the claim, by contending that, the death of the deceased, was not due to the injuries sustained in the motor accident. It was pointed out that, in the accident which occurred on 22.03.2003, only minor injuries were sustained and he was again admitted on 29.03.2003, due to the injuries sustained in some other accident. Therefore, they disputed the claim put forward by the appellants in this regard. The quantum of compensation was also disputed by them. M.A.C.A. Nos.2281 & 1444 of 2012 : 5 : 5. To substantiate the contentions, the petitioners examined PWs1 to 3 and Exts.A1 to A11 were marked. As court exhibits, Ext.X1 and X2 were marked. From the side of the respondents, RW1 was examined and Exts.B1 to B3 were marked. 6. After the trial, the tribunal rejected the contentions raised by the insurer and came to the conclusion that the death of the deceased on 31.03.2003 was due to the injuries sustained to him in the motor accident that occurred on 22.03.2003. The negligence was also found to be that of the 2[nd] respondent in driving the car and accordingly, the 3[rd] respondent being the insurer, was held liable to pay the compensation. The quantum of compensation even though was fixed as Rs.24,80,000/-, the tribunal reduced it to Rs.22,00,000/- the reason that the claim itself was only Rs.22,00,000/-. The said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realisation. 7. Seeking enhancement of compensation M.A.C.A. No.2281/2012 was filed by the petitioners, whereas challenging the finding of the tribunal that the death of the deceased was due to the injuries sustained in the accident, the 3[rd] respondent insurer filed M.A.C.A. Nos.2281 & 1444 of 2012 : 6 : ## M.A.C.A. No.1444/2012. 8. Heard Sri. Mathews P Jacob, the learned senior counsel appearing for the 3[rd] respondent/insurer, the appellant in MACA 1444/2012 and Sri. A.R. Nimodh, Sri .A.R. George, the learned counsel appearing for the petitioners, the appellants in MACA 2281/2012. 9. The first question to be considered is the contention raised by the learned counsel for the insurer, i.e., the death of the deceased was not due to the injuries sustained in the accident. The said contention was raised by the learned counsel for the insurer mainly placing reliance upon Exts.A10 and A10 Out Patient ticket dated 22.03.2003 and A11 copy of the wound certificate dated 29.03.2003. It was pointed out that, only certain minor injuries were noted in Ext.A10 OP ticket which was prepared immediately after the accident occurred on 22.03.2003. It was further pointed out that, Ext.A11 is the wound certificate prepared on 29.03.2003 when the deceased was brought to the hospital again as he sustained injuries due to a fall while he was in his residence. Therefore, it is pointed out that, the injuries which ultimately led to the death of the deceased on 31.03.2003 were not occurred in the accident that M.A.C.A. Nos.2281 & 1444 of 2012 : 7 : ## happened on 22.03.2003. 10. The said contention was stoutly opposed by the learned counsel appearing for the petitioners. On going through the materials, it can be seen that a detailed discussion has been made by the Tribunal with respect to the evidence adduced by parties on the point, while arriving at the conclusion that the contention raised by the insurer is not sustainable. Of course, it is true that, in Ext.A10 OP ticket, only minor injuries are seen mentioned. However, it also refers to an injury over the maxillary area as well. Ext.A2 is the postmortem certificate. In the said certificate, 11 antimotor injuries were noted and the opinion as to the cause of death was recorded as “the deceased died of the head injury”. The major injury therefore is injury No.3 mentioned in the postmortem certificate. The Doctor who conducted the postmortem and issued the Ext.A2 certificate was examined as PW3 and his evidence is very crucial as far as the issue to be determined in this case is concerned. In addition to that, in Ext.A11 wound certificate, which was prepared on 29.03.2003, several injuries are seen mentioned and the patient was brought unconscious i.e. in a coma stage. The cause of injury recorded in Ext.A11 is that, “became unconscious at M.A.C.A. Nos.2281 & 1444 of 2012 : 8 : the fall at home at around 10.45 a.m. at Amala Nagar”. While mentioning the injuries, it was also recorded therein that, there was history of road traffic accident three days ago and was under treatment at Medical College Hospital, Thrissur. 11. PW3, the Doctor who conducted the postmortem and issued Ext.A2 postmortem certificate gave a detailed deposition touching upon these documents and described the injuries mentioned in these documents and the impact of the same. The crucial aspect to be noticed is that, in his deposition, PW3 clearly explained that, the injury No.3 mentioned in Ext.A2 postmortem certificate which was the cause of the accident, was sustained prior to 26.03.2003. The relevance of the said date is that, Ext.A11 which is the second wound certificate was dated 29.03.2003, which happened to be issued when the deceased was brought to the hospital after he fell conscious due to fall in his house. In response to a specific question put to PW3 during his cross-examination as to whether the said injury was caused due to the fall at home on 29.03.2003, PW3 categorically replied that the said injury did not occur on 29.03.2003 and according to him, the same occurred prior to 26.03.2003. Even though a pinpointed question was asked to M.A.C.A. Nos.2281 & 1444 of 2012 : 9 : PW3 in his cross-examination to the effect that, the injury No.3 mentioned in Ext.A2 occurred between 24.03.2003 and 29.03.2003. PW3 asserted that the same occurred before 26.03.2003 and beyond the same, no specific time limit could be mentioned by him. Besides the same, a further question was put to him to the effect that injury No.3 mentioned in Ext.A2 can only be caused by a fall on a hard surface subsequent to 23.03.2003. However, his answer was that it can be before 26.03.2023 but not due to the fall. It is also discernible from his deposition that, he clearly explained that in Ext.A11 wound certificate, three injuries are mentioned and out of the three injuries two injuries were sustained prior to 29.03.2003. One of the injuries relates to injury No.3 mentioned in Ext.A2 postmortem certificate. In his deposition he also specifically refers to the injury sustained to the deceased, which is noted in Ext.A10 OP ticket over the maxillary area which according to him was sustained due to the contact with an object. He also asserted that, such contact with sufficient force can result in injury No.3. On carefully going through Ext.A10 OP ticket dated 22.03.2003, Ext.A11 wound certificate dated 29.03.2003 and Ext.A2 postmortem certificate, coupled with the evidence of PW3, it can be clearly seen M.A.C.A. Nos.2281 & 1444 of 2012 : 10 : that injury No.3 which resulted in the death of the deceased could be the injury developed from the injury of the maxillary area suffered by the deceased at the time of the accident occurred on 22.03.2003. It is also discernible from the evidence of PW3 that, the said injury might not have noticed when the deceased was subjected to examination on 22.03.2003 as the same could normally be detected only if a scanning was conducted. 12. Another crucial aspect to be noticed in this regard, is that the first appellant while being examined as PW1, categorically stated that, after the accident, the appellant was in his residence by availing treatment. Of course it is true that, as pointed out by the learned counsel for the insurer, in Ext.A10 would indicate that, only minor injuries were recorded therein and the deceased was not subjected to further examination. He was not admitted to the hospital as well and the treatment availed was as an outpatient. However, in the deposition of PW1 an explanation is forthcoming for the same, which is to be effect that, the keys of the bank, where he was working, was with him, and as he was the cash manager of the bank, he wanted to entrust the said keys to some other competent person so that the banking operations could be carried out without M.A.C.A. Nos.2281 & 1444 of 2012 : 11 : any interruptions. So, he left the hospital, without subjecting himself to further detailed examination, with the said purpose. PW1 categorically stated that, even though the doctor suggested further examination, the deceased was not prepared for the same, due to the reason mentioned above. Only later on 29.03.2003, the said injuries further aggravated, and ultimately resulted in admission of the deceased in Amala hospital and it led to his death on 31.03.2003. After carefully scrutinizing the deposition of PW1, in the light of the other medical records, particularly on the basis of the deposition of PW3, as to the impact of the injuries, I do not find any reason to discard the same as far as the sequence of events, which led to the death of the deceased is concerned. It is also to be noted in this regard that, from the materials already placed on record, there is absolutely nothing to suggest or indicate that the deceased was involved in any other accident between 22.03.2003 and 29.03.2003. In Ext.A11 wound certificate, even though there is a reference about the road accident that occurred three days prior to the said date, in the absence of any other materials showing that an accident occurred three days prior to the same, the only conclusion possible is that, the reference in the said document, was M.A.C.A. Nos.2281 & 1444 of 2012 : 12 : pertaining to the accident occurred on 22.03.2003. This is particularly because, in Ext.A11 it is specifically mentioned that, there was a history of road traffic accident and consequent to which the deceased had undergone treatment in Medical College Hospital, Thrissur. There are no documents to show that, he availed any other treatment in Medical College Hospital, Thrissur on any other day, than on the date of the accident. 13. Another crucial aspect which fortifies the finding of the Tribunal is the police report. Ext.A1 is the FIR registered on 31.03.2003, on the date on which the deceased died. After conducting investigation, the police submitted Ext.A5 final report as per which the driver of the car was implicated as the accused. The conclusion of the police was also to the effect that, the death of the deceased was due to the injuries sustained in the motor accident that occurred on 22.03.2003. Of course, contra evidence has been adduced by the respondents as against the same, by examining RW1, the driver of the car. However, the tribunal did not accept his evidence. On a careful examination of his evidence, I do not find any reason to discard the finding of the Tribunal in this regard. Thus, the aforesaid aspect would lead to a definite finding that, the M.A.C.A. Nos.2281 & 1444 of 2012 : 13 : death of the deceased was due to the injuries sustained in the accident that occurred on 22.03.2003 and the finding of the Tribunal in this regard is a probable one and therefore no interference is warranted. 14. The next point to be considered is the quantum of compensation which is the subject matter in MACA No.2281/2012. The deceased was aged 49 years at the time of the accident and he was working as a Deputy Manager in a bank. To establish the salary, Ext.A7 letter was produced, which was proved through PW2. The said Ext.A7 would indicate that he was receiving a monthly salary of Rs.28,195/-. Since it was issued by a bank, which was duly proved, the monthly income in this case can be taken as Rs.28,000/-. The legal infirmity highlighted by the learned counsel for the appellant in the assessment made by the tribunal was that the application of split multiplier. It was pointed out that in **Puttamma v. K.L. Narayana Reddy [2014(1) KLT 738],** the Hon’ble Supreme Court categorically held that, the split multiplier cannot be applied, and the compensation for loss of dependency has to be calculated, by taking the monthly income which the deceased was drawing at the time of the accident, irrespective of M.A.C.A. Nos.2281 & 1444 of 2012 : 14 : the date of superannuation of the deceased. In the light of the above, the assessment made by the tribunal by applying the split multiplier is to be interfered with. However, the learned counsel appearing for the appellant would point out that, the reasonable deduction towards the income tax has to be made. It is seen that, as per the income tax slab prevailing at the relevant time, the rate of tax payable for the amount above Rs.50,000/- and up to Rs.60,000/- was 10%, and from Rs.60,000/- upto Rs.1,50,000/- the rate of tax was 20% and above Rs.1,50,000/- the tax payable was 30%. In this case, when the monthly income is taken as Rs.28,000/-, the annual income would come to Rs.3,36,000/(Rupees three lakhs thirty-six thousand only) Therefore, the total tax would come to Rs. 74,800/- (1000 + 18,000 + 55,800). Thus, the annual income after the tax would come to Rs.2,61,200/-. Since the deceased was in regular employment with a regular salary 30% addition has to be made towards future prospectus. Thus, the annual income would come to Rs.3,39,560/- (Rupees three lakhs Thirty nine thousand five hundred and sixty only) including the future prospectus (Rs.2,61,200/-+ 78,360). While reassessing the compensation with the said amount, the M.A.C.A. Nos.2281 & 1444 of 2012 : 15 : compensation for loss of dependency would come to Rs.29,42,853/- (Rupees twenty nine lakhs forty two thousand eight hundred and fifty three only) (339560 X 13 X 2/3). The amount already awarded by the tribunal under this head was Rs.24,00,000/- (Rupees twenty-four lakhs only) and thus the additional compensation would come to Rs.5,42,853/- (Rupees five lakhs forty two thousand eight hundred and fifty-three only). 15. The amount awarded by the Tribunal towards funeral expenses and loss of estate were Rs.5000/- each. In the light of **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , further sums of Rs.10,000/- each are awarded under these heads. The deceased was brought to the hospital on two occasions, but yet, no amount towards transportation was awarded and therefore Rs.1000/- is awarded under this head. 16. The next head which requires consideration is the loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram** [(2018) 18 SCC 130] and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and** **other** [2020 (3) KHC 760] **,** the appellants being the wife and children, are entitled to compensation under this head @ M.A.C.A. Nos.2281 & 1444 of 2012 : 16 : Rs.40,000/- each thereby a total amount come to Rs.1,20,000/-. The tribunal awarded an amount of Rs.25,000/- for loss of consortium and a further sum of Rs.30,000/- towards love and affection. In **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [2020 (3) KHC 760] **,** it is categorically held by the Hon’ble Supreme Court that when loss of consortium is awarded, no further compensation is to be granted for loss of love and affection. Therefore, the said amount can be adjusted towards the amount fixed towards the loss of consortium. It will result in an additional compensation of Rs.65,000/- under the said head. Thus, the total additional compensation would come to Rs.6,27,853/(Rupees six lakhs twenty seven thousand eight hundred and fiftythree only) [542853+10000+10000+65000]. 17. In the result, these appellants are disposed of with the following orders: (i) The finding of the tribunal holding that the death of the deceased was due to the injuries sustained in the motor accident that occurred on 22.03.2003 is hereby confirmed. Consequently, the liability imposed upon the respondents No.2 to 4 herein jointly and severally, is confirmed. M.A.C.A. Nos.2281 & 1444 of 2012 : 17 : (ii) The quantum of compensation awarded by the Tribunal is revised by granting an additional compensation of Rs.6,27,853 (Rupees six lakhs twenty seven thousand eight hundred and fiftythree only). The said amount shall be recoverable from the third respondent with interest @ as ordered by the tribunal with proportionate costs. The third respondent is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the 2[nd] respondent to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/RAV