MACA Nos. 477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 ``` ## `MACA NO. 477 OF 2014` ``` AGAINST THE AWARD DATED 30.04.2013 IN OPMV 203/2010 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANTS/PETITIONERS 1 TO 3:` ``` 1BEENA THOMAS AGED 44 YEARS W/O.LATE THOMAS, THEKKEKAPPIL HOUSE, CHEMBOTHARA, KOTTANAD POST, VYTHIRI TALUK, WAYANAD DISTRICT. 2TIBIN THOMAS AGED 19 YEARS S/O.LATE THOMAS, THEKKEKAPPIL HOUSE, CHEMBOTHARA, KOTTANAD POST, VYTHIRI TALUK, WAYANAD DISTRICT. 3ALEENA THOMAS (MINOR) AGED 14 YEARS D/O.LATE THOMAS, THEKKEKAPPIL HOUSE, CHEMBOTHARA, KOTTANAD POST, VYTHIRI TALUK, WAYANAD DISTRICT. (REPRESENTED BY HER NEXT FRIEND AND GUARDIAN MOTHER- IST APPELLANT) BY ADV SMT.CELINE JOSEPH ``` ## `RESPONDENTS/RESPONDENTS 2,3 & 4:` ``` 1GEORGE AGE NOT KNOWN, S/O.PAILY, PALLATH HOUSE, THARUVANA POST, MANANTHAVADY TALUK, WAYANAD DISTRICT. 687 001. 2RELIANCE GENERAL INSURANCE COMPANY LTD. IIND FLOOR, CITADEL ARCADE, OPPOSITE TAGORE CENTENARY HALL, R.C.ROAD, CALICUT. 687 032. 3THOMAS ANIYAN AGED 44 YEARS S/O.OOMMEN, PADIYARA HOUSE, KOYILERI POST, MANANTHAVADY. 673 121. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH MACA.685/2014, 2170/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` # `[MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013]` ``` 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 ``` ## `MACA NO. 685 OF 2014` ``` AGAINST THE AWARD DATED 30.04.2013 IN OPMV 199/2010 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANTS/PETITIONERS 1 TO 3:` ``` 1SHEELA ABRAHAM AGED 42 YEARS W/O.LATE ABRAHAM, THEKKEKAPPIL HOUSE, KOTTANAD POST,VYTHIRI TALUK, WAYANAD DISTRICT 2ALEESHA ABRAHAM AGED 18 YEARS D/O.LATE ABRAHAM, THEKKEKAPPIL HOUSE, KOTTANAD POST,VYTHIRI TALUK, WAYANAD DISTRICT 3ANNA ABRAHAMMINOR AGED 14 YEARS D/O.LATE ABRAHAM, THEKKEKAPPIL HOUSE, KOTTANAD POST,VYTHIRI TALUK, WAYANAD DISTRICT(REPRESENTED BY HER NEXT FRIEND AND GUARDIAN MOTHER -IST APPELLANT) BY ADV SMT.CELINE JOSEPH ``` ## `RESPONDENTS/RESPONDENTS 2,3 & 4:` ``` 1GEORGE S/O.PAILY , PALLATH HOUSE,,THARUVANA POST, MANANTHAVADY TALUK, WAYAZNAD DISTRICT 673 121 2RELIANCE GENERAL INSURANCE COMPANY LTD IIND FLOOR, CITADEL ARCADE, OPPOSITE TAGORE CENTENERAY HALL, RC ROAD, CALICUT -32 3THOMAS @ ANIYAN, AGED 44 YEARS S/O.OOMMEN, PADIYARA HOUSE,KOYILERI POST, MANANTHAVADY 673 120 BY ADV SRI.MANSOOR ALI ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] ``` ``` 3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH MACA.477/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] ``` ``` 4 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 ``` ## `MACA NO. 2170 OF 2013` ``` AGAINST THE AWARD IN OPMV 199/2010 OF DISTRICT COURT & SESSIONS & ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANT/3RD RESPONDENT:` ``` RELIANCE GENERAL INSURANCE CO.LTD. CALICUT,REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE,ERNAKULAM. ``` ``` BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ``` ## `RESPONDENT/CLAIMANTS 1 TO 3:` ``` 1SHEELA ABRAHAM W/O.LATE ABRAHAM,RESIDING AZT THEKKEKAPPIL HOUSE,KOTTANAD POST,VYTHIRY TALUK,WAYANAD DISTRICT-673121. 2ALEESHA ABRAHAM(MINOR) (DATE OF BIRTH 6.6.1995), D/O.LATE ABRAHAM,RESIDING AT THEKKEKAPPIL HOUSE,KOTTANAD POST,VYTHIRY TALUK,WAYANAD DISTRICT-673121. 3ANNA ABRAHAM(MINOR) (DATE OF BIRTH 23.12.1998),D/O.LATE ABRAHAM,RESIDING AT THEKKEKAPPIL HOUSE,KOTTANAD POST,VYTHIRY TALUK,WAYANAD DISTRICT,PIN-673121. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH MACA.477/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 5 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 ``` ## `MACA NO. 2171 OF 2013` ``` AGAINST THE AWARD IN O.P.(MV) 203/2010 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANT/3RD RESPONDENT:` ``` RELIANCE GENERAL INSURANCE CO. LTD. CALICUT, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ``` ## `RESPONDENT/CLAIMANTS 1 TO 3:` ``` 1BEENA THOMAS W/O.LATE THOMAS, RESIDING AT THEKKEKAPPIL HOUSE, CHEMBOTHARA, KOTTANAD POST, VYTHIRI TALUK, WAYANAD DISTRICT, PIN 673121. 2TIBIN THOMAS (DATE OF BIRTH 20.01.1994), S/O.LATE THOMAS, RESIDING AT THEKKEKAPPIL HOUSE, CHEMBOTHARA, KOTTANAD POST, VYTHIRI TALUK, WAYANAD DISTRICT, PIN 673121. 3ALEENA THOMAS (MINOR) (DATE OF BIRTH 09.11.1997), D/O.LATE THOMAS, RESIDING AT THEKKEKAPPIL HOUSE, CHEMBOTHARA, KOTTANAD POST, VYTHIRI TALUK, WAYANAD DISTRICT,PIN 673121, 3RD RESPONDENT BY MOTHER 1ST RESPONDENT, BY ADV SMT.CELINE JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH MACA.477/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] ``` ``` 6 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 ``` ## `MACA NO. 2172 OF 2013` ``` AGAINST THE AWARD IN OPMV 47/2011 OF DISTRICT COURT & SESSIONS & ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANT/3RD RESPONDENT:` ``` RELIANCE GENERAL INSURANCE CO LTD CALICUT, REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE,ERNAKULAM ``` ``` BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ``` ## `RESPONDENT/CLAIMANT:` ``` SHEELA ABRAHAM ``` ``` W/O.LATE ABRAHAM,THEKKEKAPPIL HOUSE,KOTTANAD POST,VYTHIRI TALUK,WAYANAD DISTRICT PIN 673 121 ``` ``` BY ADV SMT.CELINE JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH MACA.477/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] ``` ``` 7 ``` ## `JUDGMENT` ``` On 03.04.2010, late Abraham was driving a car owned by his wife - Smt.Sheela Abraham, along with late Thomas and three others, when it was rammed into by the offending bus, driven in a rash and negligent manner. The accident killed ``` ``` Abraham and Thomas and injured the other three; consequent to which, Smt.Sheela Abraham, along with her children and mother-in-law, filed OP(MV) No.199/2010, seeking compensation for the death of her husband and OP(MV) No.47/2011 seeking compensation for damage to her car; while, Smt.Beena Thomas, along with her children and mother-in-law filed OP(MV) No.203/2010 seeking compensation for the death of her husband late Thomas, all before the Motor Accidents Claims Tribunal, Kalpetta (hereinafter referred ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 8 ``` ``` to as the “Tribunal”for short). ``` ``` 2. The Insurance Company, which insured the offending vehicle, settled the claims of the persons injured in the accident in a Lok Adalath held on 11.06.2011; but thereafter, amended their ``` ``` written statements in the afore cases, taking a ``` ``` contention that it was late Abraham who was ``` ``` responsible for the accident and not the driver of the offending bus. Their specific assertion was that the car driven by late Abraham was on the wrong side of the road; and thus that it has ``` ``` to be presumed that he was fully responsible for the accident. They also impelled an alternative ``` ``` contention that if, otherwise, late Abraham should, at least, be deemed to have been ``` ``` contributorily negligent, to the same extent as the driver of the offending bus. ``` `3. The learned Tribunal, however, repelled` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] ``` ``` 9 ``` ``` the afore contentions of the Insurance Company and allowed OP(MV) No.199/2010 to a sum of Rs.24,69,600/-,againstaclaimfor Rs.33,75,000/- limited to Rs.25,00,000/-; while, ``` ``` it allowed OP(MV) No.203/2010, to a sum of ``` ``` Rs.23,34,920/-, against a claim of Rs.30,62,000/- ``` ``` limited to Rs.25,00,000/-. As far as OP(MV) ``` ``` No.47/2011 is concerned, the learned Tribunal allowed the same also, awarding a sum of Rs.1,03,436/-. ``` ``` 4. Smt.Sheela Abraham, along with her ``` ``` children, have filed MACA No.685/2014 asserting that the compensation awarded by the learned Tribunal in OP(MV) No.199/2010 is inadequate; while, Smt.Beena Thomas, along with her children, have filed MACA No.477/2014 calling into question the Award of the Tribunal in OP(MV) No.203/2010, as being exiguous. ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 10 ``` ``` 5.While so, the Reliance General Insurance Co.Ltd (hereinafter referred to as 'the Reliance') have filed MACA Nos.2170/2013, 2171/2013 and 2172/2013 against the Awards of the learned Tribunal in O.P(MV) Nos. 199/2010, 203/2010 and 47/2011 respectively; primarily ``` ``` reiterating that deceased Abraham was the person ``` ``` who caused the accident on account of his negligence and thus, that they are not responsible to honour the compensation awarded ``` ``` by the Tribunal. As an alternative contention before this Court, they assert that the ``` ``` compensation awarded by the Tribunal is on the higher side; and thus pray that this be scaled down. ``` ``` 6.I have heard Smt. Celin Joseph – learned ``` ``` counsel appearing for the appellants in MACA Nos.685/2014 and 477/2014; and Smt.K.S.Santhi – ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] ``` ``` 11 ``` ``` learned Standing Counsel for 'Reliance', ``` ``` appearing in the other appeals. ``` ``` 7.The parties in these cases are not in dispute regarding the death of Abraham and Thomas and aread idemthat other three passengers in the car had been injured. There is also no contest to the fact that 'Reliance' had settled the claims of the injured in a Lok Adalath and that its order recording so, has ``` ``` been produced as Ext.A18. ``` ``` 8.However, Smt.K.S.Santhi – learned ``` ``` Standing Counsel for 'Reliance', argues that it ``` ``` is only consequent to the settlement of the ``` ``` disputes with the injured at the Adalath, that her client came to be aware that the accident was not caused in the manner, as has been stated by the Police in their final Charge Sheet; but solely on account of the negligence of Late ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 12 ``` ``` Abraham, who was driving the car, since he had carelessly driven it, to hit the right tyre of the bus and then to have skid and fallen into a ditch on the side of the road. She pointed out that the written statements in all these Original Petitions were, thereafter, amended to bring in these additional contentions; but argued that this has been completely brushed aside by the learned Tribunal, without ``` ``` considering on its merits. ``` ``` 9.Smt.K.S.Santhi, thereafter, submitted ``` ``` that the compensation awarded by the Tribunal for the death of Abraham and Thomas is ``` ``` incorrect because, it has taken the income at ``` ``` the time of their death and has then adopted the ``` ``` applicable multiplier as perSarla Verma v. ``` ``` Delhi Transport Corporation [2010(2) KLT 802]. ``` ``` She contended that this is incorrect because ``` ## `[MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013]` ``` 13 ``` ``` both the deceased were Government Servants, who would have retired only at the age of 56; and hence, that only their notional income, after such event, ought to have been reckoned, with the multiplier as is applicable at age of 56. She concluded saying that the compensation ``` ``` awarded by the Tribunal under many of other heads is also in error and in violation of the declarations in National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662]; adding that ``` ``` the amount awarded towards damage to the car of Smt.Sheela Abraham by the Tribunal, in O.P(MV) No. 47/2011, is excessive because, Ext.A17- report of the Surveyor had not been properly proved. She thus prayed that all the afore appeals be allowed. ``` ``` 10.Smt.Celine Joseph – learned counsel for ``` ``` the claimants, on the contrary, argued that the ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 14 ``` ``` findings of the learned Tribunal, with respect to ``` ``` the negligence of the driver of the offending bus, is without any fault; but that it has erred ``` ``` in not granting sufficient compensation under some of the heads particularly, 'Loss of Estate', ``` ``` 'Funeral Expenses' and 'Loss of Consortium'. She ``` ``` then pointed out that, the deduction made from the income of the deceased, towards personal expenses, is also fraught with mistake because ``` ``` it did not reckon their mother - who was alive at the time of the accident and who died only ``` ``` subsequently, with her legal heirs having been now brought on record. She thus prayed that MACA ``` ``` Nos.400/2014 and 685/2014 be allowed; while other ``` ``` three appeals by 'Reliance' be dismissed. ``` ``` 11.I have considered the afore rival ``` ``` submissions and have also gone through the evidence on record – copies of which have been ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] ``` ``` 15 ``` ``` handed over across the Bar by the learned ``` ``` counsel for the parties, with the express ``` ``` consent that it can be acted upon by this Court without dispute. ``` ``` 12.As I have already said above, 'Reliance' ``` ``` impels two broad contentions in their appeals, ``` ``` namely, that the driver of the car - Late ``` ``` Abraham, was negligent and fully responsible for ``` **==> picture [440 x 48] intentionally omitted <==** ``` excessive. ``` **==> picture [405 x 14] intentionally omitted <==** ``` negligence of Late Abraham is common, I deem it ``` ``` appropriate to deal with that as the first issue ``` ``` and then to deal with others, as I will ``` ``` presently record. ``` **==> picture [405 x 14] intentionally omitted <==** ``` conceded - that Ext.A4 - Charge Sheet settled by ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 16 ``` ``` the Police fixes entire responsibility of the accident on the driver of the offending bus. The imputation of the Insurance Company, however, is that Late Abraham was a Police Officer and that the Investigating Officer, namely RW1, has settled the Charge-Sheet in such a manner, so as to help him and his family. Interestingly, the Investigating Officer was examined at the instance of the Insurance Company; but nothing worthwhile has been brought out from his testimony against the investigation or the conclusions in the charge-sheet. But as has been correctly found by the learned Tribunal, RW1 virtually conceded that he was not able to mark ``` ``` the place of occurrence of the accident, explaining that this is because the bus had been removed from the site, so as to clear the traffic in the busy road. The learned Tribunal ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 17 ``` ``` has thus found fault with RW2, in not having settled the Scene Mahazar properly and in not assessing the actual width of the road, both of ``` ``` its tarred and untarred portion. ``` ``` 15.Interestingly, answering the allegation of the Insurance Company, that RW1 – Investigating Officer had tried to help the deceased and his family, the learned Tribunal has concluded - absolutely correctly, in my view - that if there was any such bias, he could have easily prepared the Scene Mahazar to show the bus being on the wrong side of the road, since there was no other aiding evidence. In ``` ``` fact, on the contrary, for some reason, RW1 was unable to mark the spot of accident correctly; but the reports of the Motor Vehicles Inspector, namely Ext.A3 series, establish that the offending bus had its front right head lamp ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 18 ``` ``` damaged; front right indicator broken and clear impact being noticed to the front right mudguard and bumper. Therefore, the learned Tribunal was wholly justified in concluding that such damage to the offending bus would not have been probable, had the car hit its right tyre alone, as has been asserted by the Insurance Company and to have then fallen into a ditch, as also imputed by them; to thus conclude that it was the driver of the offending bus, who was fully responsible. ``` ``` 16.I am in complete affirmation with the ``` ``` conclusions of the learned Tribunal because, it has taken great effort in assessing the evidence on record, to leave any suspicion that driver of ``` ``` the Car was responsible, by evaluating every permutation and combination possible, as emerging from the matrix of the evidence led by ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 19 ``` ``` the parties. ``` ``` 17.As I have already said above, it is the specific case of the Insurance Company that the Car did not hit the offending bus head – on, but only on its right tyre and then skid and fell into a ditch, causing the death and injuries. ``` ``` This version is completely improbable, going by ``` ``` Ext.A3 - series reports of the Motor Vehicle Inspector because, the damage caused to the offending bus would, more than sufficiently, indicates a head - on collision, though on its right side. ``` ``` 18.There is one more very pertinent and ``` ``` germane issue that has been noticed by the ``` ``` learned Tribunal, which again, I find to be ``` ``` absolutely credible. This is that the Insurance ``` ``` Company had settled the cases filed by other passengers, who were injured in the accident, ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 20 ``` ``` without any demur in a Lok Adalat, which is indubitable from Ext.A18 copy of the Award, dated 11.06.2011. Obviously, they never even had a suspicion that late Abraham was responsible for the accident because, if they had any such, they would have certainly not settled the cases in such manner. However, for some ineffable ``` ``` reason, they then proceeded to amend the written statements in the afore Original Petitions and to impel a contention against late Abraham, but without any corroborating or substantiating evidence being led by them. ``` ``` 19.Interestingly, the Insurance Company ``` ``` relies upon the evidence of RW2 - the driver of ``` ``` the offending bus - who rather incredulously testifiedthatlateAbrahamwasnot ``` ``` concentrating on his driving, but was talking to others at the time of the accident; and that ``` ## `[MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 21` ``` even though he applied brake to stop the bus, the Car came and rammed into its front tyre, thus skidding onto a ditch thereafter. ``` ``` 20.As I have already said above, apart from the fact that the testimony of RW2 is thoroughly unworthy of acceptance without corroboration - ``` ``` it being an interested and self serving one - ``` ``` the other evidence on record clearly establish, ``` ``` without any leeway for doubt, that the cause of accident was not as has been stated by him. It is rather strange that the Insurance Company has proceeded solely by his version, to then build a case as said above, particularly, after they had settled with the injured in the accident, in a Lok Adalat. There is also absolutely no ``` ``` explanation forthcoming, even before this Court, as to why no effort was taken to move against the Award in the Lok Adalat, had the Insurance ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 22 ``` ``` Company got credible information later that the accident was caused as asserted by them. When they have chosen to settle three cases out of the six filed, without any contention regarding the contributory negligence of late Abraham, the learned Tribunal acted without any error, in having repelled their contentions. ``` ``` 21.That being so concluded, I will now deal ``` ``` with the contentions regarding the quantum of compensationineachofthesecases individually. ``` ``` MACA No.2170 of 2013 & 685 of 2014 ``` ``` As recorded above, MACA No.2170/2013 has been ``` ``` filed by “Reliance” impugning the Award of the learned Tribunal in OP(MV)No.199 of 2010 as being excessive; while, MACA No.685 of 2014 has been filed by Smt.Sheela Abraham and others assailing the same as being inadequate. ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 23 ``` ``` Smt.Celin Joseph – learned counsel for ``` ``` Smt.Sheela Abraham and others, argued that the compensation awarded by the learned Tribunal under the heads “Funeral Expenses”, “Loss of Estate” and “Loss of Consortium” is woefully insufficient and that it goes against the ``` ``` declarations of the Hon’ble Supreme Court in ``` ``` National Insurance Company Ltd. v. Pranay Sethi ``` ``` [2017 (4) KLT 662]. She pointed out that, even ``` ``` though deceased Abraham was survived by his wife, ``` ``` two children and mother, the amount under the ``` ``` head “Loss of Consortium” has been granted only to a sum of Rs.5,000/-; while, the deduction ``` ``` towards personal expenses from his income has been made to an extent of one third, when it should have been only one fourth, as per Sarla Vermav.DelhiTransportCorporation [2010(2)KLT802 SC]. ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 24 ``` ``` In opposition, however, Smt.K.S.Santhi – learned Standing Counsel for “Reliance”, argued that, contrary to the assertions of Smt.Celin Joseph, the learned Tribunal has awarded an amount of Rs.10,000/- towards “Loss of Love and ``` ``` Affection” which is impermissible going by ``` ``` United India Insurance Company Ltd. v. Satinder ``` ``` Kaur @ Satwinder Kaur [(2021) 11 SCC 780]; while, ``` ``` it has adopted the income of late Abraham to be Rs.18,000/-, based on Ext.A8 – Salary Certificate and Ext.A9 – Income Tax Certificate issued by the District Police Officer, which shows that he was working as an Assistant Sub Inspector. She argued that since late Abraham would have retired at the age of 56 and since he was 46 years in age at the time of the accident, only the multiplier of ‘nine’ should have been adopted and his notional income after retirement should alone have been ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 25 ``` ``` then reckoned. ``` ``` However, Smt.Celin Joseph relied upon Jayasree N. and Others v. Cholamandalam MS General Insurance Company Ltd. [2021 (6) KHC 163 ``` ``` (SC)]to contend that the afore submissions of Insurance Company are now without any legs to stand on because, it has been well settled by the ``` ``` Hon’ble Supreme Court that, for computation of compensation for “Loss of Dependency”, Courts ``` ``` have to consider the actual income of the ``` ``` deceased and then sufficient addition be made, to ``` ``` factor in future prospects. She asserted that ``` ``` said judgment also is a precedent for the firm proposition that the multiplier should also be as per the age of the deceased at the time of the accident. ``` ``` I must say that there is great force in the ``` ``` afore submissions of Smt.Celine Joseph because, ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 26 ``` ``` late Abraham was working as a Sub Inspector in the services of the Kerala Police at the time of the accident, when he was a mere 46 years in age. The learned Tribunal has reckoned his income correctly, based on Exts.A8 and A9, which remains uncontroverted and then adopted the multiplier of ``` ``` ‘13’ as is warranted under Sarla Verma(supra). As perJayasree(supra), the learned Tribunal has acted without any error especially, when it has also awarded future prospects at the rate of 30%, as is specifically authorised inPranay Sethi (supra). ``` ``` As regards the compensation under the heads “Funeral Expenses” and “Loss of Estate”, Pranay Sethi(supra) certainly mandates that an amount of Rs.15,000/- each be granted under them. The Award hence certainly requires to be corrected to such extent; while, as regards “Loss of ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 27 ``` ``` Consortium” each of the appellants is entitled to Rs.40,000/-, thus to a total sum of Rs.1,60,000/- ``` ``` as per Pranay Sethi (supra). ``` ``` Of course, when I conclude as above, the ``` ``` compensation awarded by the learned Tribunal under the head “Loss of Love and Affection”, to a sum of Rs.10,000/-, will require to be deleted. ``` ``` Finally, while calculating the compensation ``` ``` under the head “Loss of Dependency”, only one fourth could have been deducted from the income ``` ``` of late Abraham towards personal expenses, as per Pranay Sethi (supra), because he is survived by his wife, two children and mother. ``` **==> picture [307 x 11] intentionally omitted <==** ``` In these cases also, Reliance’ takes the contention that, since late Thomas was a High School Assistant at the time of the accident, ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 28 ``` ``` only the notional income after retirement could have been accepted for the purpose of fixing compensation for “Loss of Dependency”; and that the multiplier of ‘nine’ alone could have been pressed in, reckoning the age of retirement to be ``` ``` 56. I have already answered this issue in the earlier paragraphs and since the legal and ``` ``` factual factors and circumstances are analogous, if not identical, in these cases, I have no doubt that my observations and conclusions above would apply to these appeals also. Resultantly, the income and multiplier adopted by the learned Tribunal, in arriving at the compensation for “Loss of Dependency” are approved and affirmed. ``` ``` Coming to the compensation awarded by the learned Tribunal under various heads, again, as I have said in the earlier case,Pranay Sethi (supra) authorises an amount of Rs.15,000/- each ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 29 ``` ``` under the heads “Funeral Expenses” and “Loss of Estate”. The learned Tribunal has awarded only Rs.5,000/- and Rs.10,000/- respectively, which surely requires to be corrected. As far as “Loss of Consortium” is concerned, again, there are four claimants in this case - who are the appellants in MACA No.477 of 2014 - and all of them are entitled to be compensated to a sum of Rs.40,000/- each under this head. Finally, as already said above, the compensation awarded by the learned Tribunal under the head “Loss of Love and Affection” will require to be deleted, as per ``` ``` Satinder Kaur @ Satwinder Kaur (supra). ``` ``` Resultantly: ``` ``` I) MACA No.2172 of 2013 is dismissed. ``` ``` II)MACA Nos.2170/2013 and 685/2014 are ``` ``` partly allowed in the following manner: ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 30 ``` ``` i)The compensation under the head “Funeral Expenses” is enhanced to Rs.15,000/-, from ``` ``` Rs.5,000/- granted by the learned Tribunal, as per Pranay Sethi(supra). ``` ``` ii)The compensation under the head “Loss of ``` ``` Estate” is enhanced to Rs.15,000/-, from ``` ``` Rs.10,000/- as per Pranay Sethi(supra). ``` ``` iii) The compensation under the head “Loss of ``` ``` Love and Affection” awarded by the learned ``` ``` Tribunal, to a sum of Rs.10,000/-, is deleted. ``` ``` iv)The compensation under the head “Loss of ``` ``` Dependency” is revised to be Rs.27,37,800/-, from ``` ``` Rs.24,33,600/- modifying only the deduction ``` ``` towards personal expenses of late Abraham, to be ``` ``` one fourth, instead of one third, as has been done by the learned Tribunal. The other figures for this purpose are left unaltered. ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 31 ``` ``` v)In all other heads, the compensation awarded by the Tribunal and its findings will remain unaltered. ``` ``` vi)Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 7.5% from the date of filing of the claim until it is realised. ``` ``` vii)However, while calculating the ``` ``` interest, the period of 101 days in MACA ``` ``` No.2170 of 2013 - being the delay caused by the appellant in filing this appeal - shall stand excluded. ``` ``` viii)The appellants will also be ``` ``` entitled to proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` ix)In view of the afore, the amount as ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 32 ``` ``` fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of ``` ``` a copy of this judgment. ``` ``` III)MACA No.2171 of 2013 & 477 of 2014 ``` ``` are partly allowed in the following manner: ``` ``` i)The compensation under the head “Funeral Expenses” is enhanced to Rs.15,000/-, from ``` ``` Rs.5,000/- granted by the learned Tribunal, as per Pranay Sethi (supra). ``` ``` ii)The compensation under the head “Loss of ``` ``` Estate” is enhanced to Rs.15,000/-, from ``` ``` Rs.10,000/-, as per Pranay Sethi (supra). ``` ``` iii) The compensation under the head “Loss of ``` ``` Love and Affection” awarded by the learned ``` ``` Tribunal, to a sum of Rs.10,000/-, is deleted. ``` ``` iv)The compensation under the head “Loss of ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 33 ``` ``` Dependency is revised to Rs.25,86,285/-, from Rs.24,33,600/- modifying only the deduction towards personal expenses of late Abraham, to be ``` ``` one fourth instead of one third, as has been done by the learned Tribunal. The other figures for ``` ``` this purpose are left unaltered. ``` ``` v)In all other heads, the compensation ``` ``` awarded by the Tribunal and its findings will remain unaltered. ``` ``` vi)Consequently, the appellant will be ``` ``` entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 7.5% from the date of filing of the claim until it is realised. ``` ``` vii)However,whilecalculatingthe interest, the period of 101 days in MACA No.2171 of 2013 - being the delay caused by the ``` ``` [MACA Nos.477/2014, 685/2014, 2170/2013, 2171/2013, 2172/2013] 34 ``` ``` appellant in filing this appeal - shall stand excluded. ``` ``` viii)The appellants will also be ``` ``` entitled to proportionate costs on the enhanced ``` ``` amounts as ordered by the Tribunal. ``` ``` ix)In view of the afore, the amount as ``` ``` fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ```