MACA.No.1224 of 2016 (C)

# _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943_ ## _MACA.No.1224 OF 2016(C)_ _AGAINST THE AWARD IN OPMV 491/2014 DATED 18-02-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM_ ## _APPELLANT/S:_ |_1_|_RAJESWARI,_| |---|---| ||_AGED 41 YEARS,_| ||_W/O.RADHAKRISHNAN (LATE),_| ||_RESIDING AT CHETTOOR HOUSE,_| ||_PANAMANNA SOUTH P.O., OTTAPALAM,_| ||_PALAKKAD, PIN-679 501._| |_2_|_C.SREELAKSHIMI [MINOR],_| ||_AGED 11 YEARS, D/O.RADHAKRISHNAN (LATE),_| ||_RESIDING AT CHETTOOR HOUSE, PANAMANNA SOUTH P.O.,_| ||_OTTAPALAM, PALAKKAD, PIN-679 501._| |_3_|_NANDANA KRIDHNA [MINOR]_| ||_AGED 6 YEARS, D/O.RADHAKRISHNAN (LATE),_| ||_RESIDING AT CHETTOOR HOUSE, PANAMANNA SOUTH P.O.,_| ||_OTTAPALAM, PALAKKAD, PIN-679 501._| |_4_|_MADHAVIKUTTY AMMA C.,_| ||_AGED 85 YERS, W/O.LATE SANKARANARAYANAN NAIR,_| ||_RESIDING AT CHETTOOR HOUSE, PANAMANNA SOUTH P.O.,_| ||_OTTAPALAM, PALAKKAD, PIN-679 501.(MINORS 2 AND 3_| ||_ARE REP. BY 1ST APPELLANT HEREIN)._| ||_BY ADVS._| ||_SRI.T.M.RAMAN KARTHA_| ||_SMT.SYAMA MOHAN_| ## _RESPONDENT/S:_ - _1 RADHAKRISHNAN V.K, AGED 45 YEARS, S/O.KUNCHAN, VEETTIKAN PARAMBU, OLUKALPARA, VAZHUKKAPARA, MUNDUR, PALAKKAD-678 592.(DRIVER OF KL-09-AE-122 BUS)._ - _2 S.GANESHAN, AGE NOT KNOWN, S/O.SREENIVASAN, 6/72/(5/505) AISWARYA NIVAS, PIRAYIRI P.O., PALAKKAD-678 004,(RC OWNER OF KL-09-_ _AE-122 BUS)._ _3 THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, PALAKKAD-678 001 (POLICY NO.7611)._ _R1, R3 BY ADV. SMT.P.K.SANTHAMMA_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.1224/2016_ _3_ ## **JUDGMENT** ## **Dated this the 30[th] day of March, 2021** This is an appeal filed by the petitioners in O.P.(MV).No.491 of 2014 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The said claim petition was filed by them seeking compensation for the death of one Radhakrishnan, who is the husband of the 1[st] petitioner, father of the 2[nd] and 3[rd] petitioners and the son of the 4[th] petitioner. The accident occurred on 29.04.2014. The deceased was aged 51 years at the time of accident and he was working as Assistant Sub Inspector of Police in Shornur Police Station. The total amount of compensation sought for by the appellants is Rs.80,00,000/-. 2. The 3[rd] respondent Insurance company filed a written statement admitting the policy in respect of the bus involved in the accident. However, they denied any negligence on the part of the driver of the bus and they have also disputed the quantum of compensation claimed by the appellants. 3. Evidence in this case consists of oral evidence of PW1 and Exts.A1 to A15 from the side of the appellants. Ext.B1, copy _M.A.C.A.1224/2016 4_ of policy and also Ext.X1 copy of the service book were also marked. 4. After the trial, the Tribunal passed an award allowing a total compensation of Rs.31,48,050/- and directed the respondent Insurance Company to deposit the said amount along with interest at the rate of 9% per annum. 5. Being dissatisfied with the said compensation, this appeal is filed. Heard the learned counsel for the appellants and also the leaned counsel for the 3[rd] respondent. 6. The learned counsel for the appellants contended that the amount awarded by the Tribunal is on lower side, particularly the amount awarded under the head of loss of dependency. It was pointed out that no addition towards future prospects was made by the Tribunal while computing the compensation under the said head. The Tribunal had calculated compensation by applying split multiplier method, i.e., taking entire monthly income as revealed from the salary certificate produced, for the period of five years, which was the period remaining in his service and thereafter, the Tribunal had taken 50% of the said income for calculating the compensation for the _M.A.C.A.1224/2016_ _5_ remaining period of multiplier. The multiplier taken in this case is 11. 7. While considering the question of compensation under the head of loss of dependency, the future prospects of the deceased is also to be taken into account. This issue is settled by a series of judgments of the Hon'ble Supreme Court, including ## **National Insurance Company v. Pranay Sethi [2017(4)** **KLT 662].** As the deceased was aged 51 years and was a person with regular monthly income, addition to be made in this regard is 15% of his monthly income. In the above circumstances, compensation awarded by the Tribunal under the head of loss of dependency has to be re-worked by making an addition of 15% in the income of the deceased. It is seen from the records that the Tribunal had taken the annual income of the deceased as Rs.4,83,175/-, which was calculated after deducting the income tax payable. While making an addition of 15% thereon, the annual income will become Rs.5,55,651/-. It is evident that, at the time of death of the deceased, his remaining period of service was 5 years. Therefore, the compensation for the period of five years shall be Rs.20,83,691 (5,55,651 x 5 x ¾). _M.A.C.A.1224/2016_ _6_ For the remaining period i.e six years, 50% of the income can be taken, which is Rs 2,77,826/-. While computing the compensation for the said period the amount payable shall be Rs.12,50,217/(2,77,826 x 6 x 3/4). Thus the total amount of compensation under the head of loss of dependency is fixed as Rs 33,33,908/The Tribunal has awarded an amount of Rs.28,99,050/- under this head and after deducting the said amount, the appellant shall be entitled for a sum of Rs.4,34,858/-. 8. At this juncture, the learned counsel for the Insurance Company pointed out that the amount awarded under the heads of loss of consortium and loss of love and affection, are Rs.1,00,000/- each. The learned counsel for the 3[rd] respondent points out that in the light of the principles laid down by the Hon'ble Supreme Court in **New India Assurance Company** **v. Somwati [(2020) 9 SCC 644]** , when the amount is awarded under the head of loss of consortium, no further amount can be granted under the head of loss of love and affection. It was also pointed out that the appellants shall be entitled for only Rs.40,000/- each under the head of loss of consortium. As per the principles laid down by the Hon'ble Supreme Court in the _M.A.C.A.1224/2016 7_ said judgment, the 1[st] appellant shall be entitled for loss of consortium of Rs.40,000/-, 2[nd] and 3[rd] appellants shall be entitled for Rs.40,000/- each under the head of loss of parental consortium and the 4[th] appellant shall be entitled for a further sum of Rs.40,000/- under the head of filial consortium. Thus the total amount receivable by the appellants under the head of loss of consortium shall be Rs.1,60,000/-. Therefore, under the head of loss of consortium, the appellants will get an additional amount of Rs.60,000/-. 9. It is pointed out that after granting compensation under the head of loss of consortium, a further sum of Rs.1,00,000/- is seen granted under the head of loss of love and affection. Going by the principles laid down in **Somawati's case** , said head should not have been granted and therefore, the said amount of Rs.1,00,000/- awarded under the head of loss of love and affection is set aside. Thus the total additional compensation receivable by the appellant is fixed as Rs.3,94,858/- (4,34,858+60000-100000). The said amount shall be deposited by the 3[rd] respondent Insurance Company along with interest and proportionate cost _8_ _M.A.C.A.1224/2016_ as ordered by the Tribunal, within a period of three months from the date of receipt of a copy of this judgment. _Sd/-_ **ZIYAD RAHMAN A.A.** **JUDGE** _DG_