MACA Nos.328 & 1707 of 2015 (Shyno M. Aykara & others v The New India Assurance Company Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 01ST DAY OF JULY 2020/10TH ASHADHA, 1942** ## **MACA.No.328 OF 2015(C)** **AGAINST THE AWARD IN OP(MV)NO.36/2013 DATED 27-09-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANTS/PETITIONERS:** - **1 SHYNO M.AYKARA @ SHEELAMMA THOMAS, AGED 47 YEARS,W/O.LATE K.C.THOMAS, KOOTUMKAL HOUSE, PONKUNNAM P.O., CHIRAKKADU VILLAGE, PIN 686 506.** - **2 CHERIAN THOMAS, AGED 23 YEARS, S/O.LATE K.C.THOMAS, KOOTUMKAL HOUSE, PONKUNNAM P.O.,CHIRAKKADU VILLAGE, PIN 686 506.** - **3 MANI K.THOMAS, AGED 21 YEARS, S/O.LATE K.C.THOMAS,KOOTUMKAL HOUSE, PONKUNNAM P.O.,CHIRAKKADU VILLAGE PIN 686 506** - **4 TOM K.THOMAS,AGED 13 YEARS, S/O.LATE K.C.THOMAS,KOOTUMKAL HOUSE, PONKUNNAM P.O.,CHIRAKKADU VILLAGE, PIN 686 506 MINOR(DOB 27.04.2001) REPRESENTED BY SHYNO M.AYKARA @ SHEELAMMA THOMAS,-DO- -DO- HIS MOTHER AS NEXT FRIEND** - **5 MARYKUTTY CHERIAN,AGED 74 YEARS, W/O. LATE CHERIAN, KOOTUMKAL HOUSE, PONKUNNAM P.O.,CHIRAKKADU VILLAGE, PIN 686 506** **BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA** MACA Nos.328 & 1707 of 2015 2 ## **RESPONDENTS/RESPONDENTS:** - **1 SUMOL ROY,CHENNATTUMATTOM,VELLOOR, PAMPADY P.O., KOTTAYAM, PIN 686 502.** - **2 KURIAN @ TOMY,S/O.MATHAI,ANAKKALLIL HOUSE, ANIKADU VILLAGE,ARUVIKUZHY P.O.,PIN 686 503.** - **3 DORARAJ KUMAR @ PRAVEEN, THZHATHUTHACHUKUNNIL, KOOROPADA VILLAGE, SN PURAM KARA, PIN 686 502.** - **4 THE NEW INDIA ASSURANCE CO.LTD., POLACHIRACKAL BUILDINGS, KK ROAD, COLLECTORATE P.O., KOTTAYAM PIN 686 001.** **R1 BY ADV. SMT.DEEPTHY.S.NATH R1 BY ADV. SRI.L.RAJESH NARAYAN R4 BY ADV. SRI.RAJAN P.KALIYATH R4 BY ADV. SRI.VPK.PANICKER(RELINQUISHED) BY ADV.SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.07.2020 ALONG WITH MACA.1707/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.328 & 1707 of 2015 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 01ST DAY OF JULY 2020/10TH ASHADHA, 1942** ## **MACA.No.1707 OF 2015** **AGAINST THE AWARD DATED 27-09-2014 IN OP(MV) 36/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/4TH RESPONDENT:** **NEW INDIA ASSURANCE COMPANY LTD., POLACHIRAKKAL BUILDINGS, K.K.ROAD, COLLECTORATE POST, KOTTAYAM REP. BY THE MANAGER, REGIONAL OFFICE, KOCHI.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/CLAIMANTS:** - **1 SHYNO M AYKARA @ SHEELAMMA THOMAS, KOOLUMKAL HOUSE, PONKUNNAM POST, CHIRAKKADAVU VILLAGE, PIN- 686 506.** - **2 CHARIYAN THOMAS, -DO3 MANI K. THOMAS, -DO4 TOM K. THOMAS (MINOR) REP. BY MOTHER & NATURAL GUARDIAN (R1) SHYNO M.AYKARA @ SHEELAMMA THOMAS,-DO-** - **5 MARYKUTTY CHERIYAN, -DO-** **R1-R5 BY ADV. SRI.MATHEW SKARIA R1-R5 BY ADV. SRI.C.M.TOMY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-07-2020, ALONG WITH MACA.328/2015,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.328 & 1707 of 2015 4 ## **[CR]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 1[st] day of July, 2020**_ _[M.A.C.A. Nos.328 and 1707 of 2015]_ Aggrieved by Award dated 27.09.2014 in OP(MV) No.36/2013 of the Motor Accidents Claims Tribunal, Pala, the petitioners have filed MACA No.328/2015 and the insurer has filed MACA No.1707/2015, invoking Section 173 of the Motor Vehicles Act, 1988. 2. The appellants in MACA No.328/2015, (hereinafter referred to as 'the petitioners' for clarity) filed OP(MV) No.36/2013 under Section 166 of the Motor Vehicles Act, 1988. The petitioners stated that they are wife, children and mother of K.C.Thomas, who died in a motor 5 MACA Nos.328 & 1707 of 2015 vehicle accident. The petitioners stated that the deceased was travelling in an autorickshaw on 05.11.2012. When the deceased alighted from and was standing near the autorickshaw, a bus bearing registration No.KL-05K-5086 driven by the 3[rd] respondent came in a rash and negligent manner. When the bus reached adjacent to the autorickshaw, Conductor suddenly opened the door which forcefully hit the face of the deceased. The deceased sustained fatal injuries and fell down. Immediately, the deceased was taken to Amrita Hospital, Ernakulam, but in spite of best treatment, the deceased succumbed to injuries on 17.11.2012. The deceased was a Development Officer in United India Insurance Company and had a monthly salary of ₹60,000/-. The petitioners claimed compensation of ₹1 Crore. 3. The 4[th] respondent, who is the insurer of the bus (hereinafter referred to as 'the insurer' for clarity) defended the OP(MV). The insurer contended that the accident was due to the negligence of the autorickshaw driver. The MACA Nos.328 & 1707 of 2015 6 insurer disputed the age, occupation and income of the deceased. The policy was however admitted. The insurer stated that the amount of compensation is highly excessive. 4. The petitioners produced Exts.A1 to A13 documents. PWs 1 and 2 were examined on their side. The Tribunal, on appreciation of evidence, concluded that the accident occurred due to the negligence of the 3[rd] respondent-driver of the bus. The Tribunal, after perusing the documents, held that the annual contribution of the deceased to the family is ₹4,53,060/-. The Tribunal adopted the multiplier of 11. ₹53,20,660/- was awarded by the Tribunal as compensation under the following heads:- |**Part I**|**Amount claimed**<br>**in (**`**)**|**Amount awarded**<br>**in (**`**)**| |---|---|---| |Transport to Hospital|15,000/-|10,000/-| |Extra-nourishment|Nil|Not entitled| |Damages to clothing& articles|3,000/-|Not entitled| |Treatment expenses|8,00,000/-|1,97,000/-| |Funeral Expenses|50,000/-|25,000/-| |**Part II**||| |Pain and suffering|1,00,000/-|35,000/-| MACA Nos.328 & 1707 of 2015 7 |Loss of dependency|90,00,000/-|49,83,660/-<br>(50340 x ¾ x 12 x 11)| |---|---|---| |Loss of consortium|3,00,000/-|50,000/-| |Loss of Estate|Nil|5,000/-| |Loss of Love and affection|Nil|15,000/-| |Total<br>claim is limited to|1,03,68,000/-<br>1,00,00,000/-|53,20,660/-| Interest at the rate of 7.5% per annum was also awarded. The insurer was directed to deposit the compensation amount. Aggrieved by the Award, the petitioners as well as the insurer are in appeal. 5. The learned counsel for the petitioners argued that the deceased was a Development Officer and died at the age of 51 years. His monthly salary was ₹53,124/-. Consequent to subsequent pay revision effected retrospectively, there was increase in the salary of the deceased. However, the Tribunal did not take into account the said pay revision for the purpose of granting compensation. The Tribunal also did not consider future prospects of the deceased in employment. Both the said omissions have resulted in substantial reduction in the MACA Nos.328 & 1707 of 2015 8 compensation due to the family. 6. The learned counsel for the petitioners further argued that the Tribunal has granted compensation of ₹5,000/- only towards loss of estate. The deceased had both parents living and two children. However, only ₹15,000/- was awarded towards loss of love and affection. No filial compensation or parental compensation was awarded. Therefore, the compensation amount is liable to be enhanced substantially. 7. The learned Standing Counsel, on the other hand, argued that the deceased was an employee in a Government Undertaking and had only eight years remaining service. The Tribunal therefore should have applied split multiplier. The learned Standing Counsel opposed the prayer of the petitioners to give due credit to pay revision benefits accrued on the deceased. The learned Standing Counsel further stated that compensation towards funeral expenses of ₹25,000/- awarded by the Tribunal is liable to be reduced. The learned Standing 9 MACA Nos.328 & 1707 of 2015 Counsel further argued that after adjusting income tax and profession tax, the monthly income of the deceased would only be around ₹51,000/- and the Tribunal committed serious error in determining the annual income of the deceased. The amount of compensation awarded by the Tribunal is therefore liable to be reduced, contended the learned Standing Counsel for the insurer. 8. Heard the learned counsel for the petitioners and learned Standing Counsel for the insurer. 9. The petitioners claimed that the monthly salary of the deceased was ₹53,124/- and argued that consequent to a subsequent pay revision effected retrospectively from 01.08.2012, the deceased was entitled to an enhancement of ₹16,609/- to his monthly salary. The petitioners produced Annexure-A1 revised arrears calculation sheet in proof of the enhancement consequent to pay revision. The Standing Counsel for the insurer, on the other hand, stated that the annual income of the deceased was only ₹6,26,516/- from which ₹30,906/- ought to be deducted towards income tax. MACA Nos.328 & 1707 of 2015 10 After further deduction of profession tax, the monthly income of the deceased would be around ₹51,000/-. 10. I have perused the records. The Tribunal has found gross salary of the deceased as ₹6,37,488/- including all the allowances payable to the deceased. Based on Annexure-A9, the Tribunal found that net income tax payable by the deceased is ₹30,906/-. Counting ₹2,500/profession tax payable by the deceased, the Tribunal fixed tax liability of the deceased as ₹33,406/-. As the calculations are based on Annexure-A9 statement containing earning details and summary of income tax calculation, this Court find it unwarranted to unsettled the findings of the Tribunal on the income of the deceased. 11. Then the question would be whether a subsequent pay revision effected retrospectively with effect from a date anterior to the death of the deceased should be taken into account or not, and also whether any enhancement ought to have been made towards future prospects, while calculating compensation. A Division 11 MACA Nos.328 & 1707 of 2015 Bench of this Court in _**Valsamma v. Baiju** [2018 (1) KLT SN 45 (C.No.63)]_ , held that correct method to be adopted in such cases, is to add future prospects. The Hon'ble Apex Court has held in the judgment in _**Oriental Insurance Co. Ltd. v. Jashuden and others** [(2008) 4 SCC 162]_ that only because salary was revised at a later point of time, the same by itself would not have been a factor which could have been taken into consideration for determining the amount of compensation. In view of the said judgment of the Apex Court, it has to be held that a subsequent pay revision cannot be considered for fixing income of a victim. 12. The learned Standing Counsel for the insurer, relying on the judgment of the Apex Court in _**Sarla Verma and others v. Delhi Transport Corporation and another** [(2009) 6 SCC 121]_ , argued that where the deceased was self-employed or was on a fixed salary, the courts will usually take only the actual income at the time of death and that a departure therefrom should be made only in rare and exceptional cases involving special circumstances. A 12 MACA Nos.328 & 1707 of 2015 reading of the judgment in _**Sarla Verma** (supra)_ would show that the Hon'ble Apex Court excluded addition of future prospects only when the deceased/injured is having a fixed salary without provision for annual increments etc. 13. In the case of the deceased in the present case, he was entitled to increments during his remaining future service. Furthermore, a Constitution Bench of the Hon'ble Apex Court considered the said issue in _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ , wherein the Constitution Bench held that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. The Apex Court further held that where the deceased was between the age of 50 to 60 years, an addition 10% has to be made. In the judgment in _**Oriental Insurance Co. Ltd. v. Valsa** [2015 (1) KLT 781]_ relied on by the Standing Counsel for the insurer, this Court held that reduction of salary going by the date of superannuation will have to be 13 MACA Nos.328 & 1707 of 2015 considered while fixing the compensation. The said judgment cannot be of any help to avoid addition of future prospects to the income of a deceased, in view of the Constitution Bench judgment of the Apex Court in _**Pranay Sethi**_ (supra). 14. The argument of the Standing Counsel, based on the judgment of the Apex Court in _**Puttamma v. Narayana Reddy** [2014 (1) KLT 738 (SC)],_ on the necessity to apply split multiplier cannot also be accepted as the Apex Court has categorically held subsequently that for computing compensation of a victim in a motor accident case, it is the age of the deceased/injured that should be taken into account for deciding the multiplier. This Court has also held in the judgment in _**Kunjandy L. and others v. Rajendran and others** [2019 KHC 962]_ that for the age between 51 to 55 years, the multiplier to be used is 11. Therefore, this Court does not find any illegality in the adoption of multiplier of 11 taken by the Tribunal. 15. Viewing the eligibility of petitioners for 14 MACA Nos.328 & 1707 of 2015 compensation in the light of the legal position narrated above, it is evident that the amount awarded under the head loss of dependency by the Tribunal, requires reconsideration granting adequate addition to the notional income of the deceased considering his future prospects. The notional monthly income to compute loss of dependency, after deducting 1/4[th] towards personal and living expenses and adding 10% towards future prospects would be ₹42,789/(₹50,340 - ₹12,585 + ₹5,034). Accordingly, it is held that the petitioners will be entitled to a compensation of ₹56,48,148/(₹42,789 x 12 x 11) towards loss of dependency. The Tribunal has already granted ₹49,83,660/- under this head. Accordingly, it is held that the petitioners are entitled to an additional compensation of **₹6,64,488/-** towards loss of dependency. 16. The Tribunal has granted compensation of ₹5,000/- towards compensation for loss of estate. In the judgment in _**Pranay Sethi** (supra)_ , Hon'ble Apex Court has standardised the rates of compensation for loss of estate, 15 MACA Nos.328 & 1707 of 2015 loss of consortium and funeral expenses. In the light of the said judgment of the Apex Court, the petitioners shall be made eligible for ₹15,000/- towards compensation for loss of estate. Accordingly, it is held that the petitioners will be entitled to **₹10,000/-** as additional compensation towards loss of estate. 17. At the same time, the Tribunal has awarded ₹50,000/- towards loss of consortium. Going by the very same judgment of the Apex Court, the said compensation is to be reduced by **₹10,000/-** . The petitioners would therefore be entitled only to ₹40,000/- towards compensation for loss of consortium. In view of the judgment of the Apex Court in _**Pranay Sethi** (supra)_ , no further enhancement is necessary under the head loss of consortium though the learned counsel for the petitioners submitted that there should be substantial increase in the compensation for loss of love and affection awarded by the Tribunal. This Court in the judgment in _**Kunjandy L.** (supra)_ has held that once compensation under the head of consortium is awarded, 16 MACA Nos.328 & 1707 of 2015 claimants are not entitled for further compensation under the head loss of love and affection. In view of the said judgment, I do not deem it necessary that any separate enhancement is to be made in compensation towards loss of love and affection. 18. It is to be noted that the Tribunal has awarded ₹25,000/- towards funeral expenses. In the light of the judgment of the Apex Court in _**Pranay Sethi** (supra)_ , the compensation has to be reduced to ₹15,000/-. Accordingly, the petitioners are to be compensated under this head, by reducing the amount to an extent of **₹10,000/-** . 19. In the light of the above, it is declared that the petitioners/appellants in MACA No.328/2015 are entitled to receive additional compensation of ₹6,74,488/- (₹6,64,488 towards additional compensation for dependency and ₹10,000 towards additional compensation for loss of estate). At the same time, from the amount awarded by the Tribunal, ₹20,000/- is liable to be reduced (₹10,000/- from compensation for loss of consortium and ₹10,000/- from 17 MACA Nos.328 & 1707 of 2015 compensation for funeral expenses). Accordingly, it is declared that the appellants in MACA No.328/2015 will be eligible to receive **₹6,54,488/-** as additional compensation. The said amount will also carry interest at the rate of 7.5% per annum from the date of OP(MV). The appellant in MACA No.1707/2015 is directed to make the payment within 30 days. Both the appeals are disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/29/06/2020