M.A.C.A.No.3667/2016 & M.A.C.A.No.1882/2016, High Court of Kerala at Ernakulam

M.A.C.A.No.1882 & 3667/16 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945_ ## _MACA NO. 3667 OF 2016_ _AGAINST THE ORDER/JUDGMENT OPMV 2080/2014 OF MOTOR ACCIDENT_ ## _CLAIMS TRIBUNAL ,KOTTAYAM_ ## _APPELLANT/S:_ - _1 P.C.KURIAN, AGED 60 YEARS, S/O.CHACKO IYPE, PALATHANATHU HOUSE, MANARCADU PO,KOTTAYAM._ - _2 KELTO P.KURIAN, AGED 20 YEARS, S/O.P.C.KURIAN, PALATHANATHU HOUSE, ELIKULAM, KANJIRAPPALLY, PIN-686 506._ _BY ADVS. SRI.K.A.HASHIM SRI.P.GIREESH KUMAR SRI.M.I.ISMAIL_ ## _RESPONDENT/S:_ - _1 SHINE P.JOHN, D/O JOHN, PEEKKAVIL HOUSE, CHAMAMPATHAL P.O, KOTTAYAM, PIN-686504._ - _2 ANJO ABRAHAM, KAIPANANICKAL HOUSE, MADUKKAKUNNU P.O, ELIKULAM, KANJIRAPPALLY, PIN-686 506._ - _3 ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, KOTTAYAM, PIN-686 001._ _BY ADVS._ M.A.C.A.No.1882 & 3667/16 2 ## _SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2023, ALONG WITH MACA.1882/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.1882 & 3667/16 3 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945_ _MACA NO. 1882 OF 2016_ _AGAINST THE ORDER/JUDGMENT OPMV 2080/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM_ ## _APPELLANT:_ _THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM, REPRESENTED BY ITS AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD, REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18._ _BY ADV SRI.A.R.GEORGE_ ## _RESPONDENTS:_ _1 P.C KURIAN, S/O.CHACKO IPE, PALATHANATHU HOUSE, MANARCADU P.O., KOTTAYAM._ _2 KELTO P KURIAN, S/O.P.C.KURIAN, PALATHANATHU HOUSE, MANARCADU P.O., KOTTAYAM._ _BY ADV SRI.K.A.HASHIM_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2023, ALONG WITH MACA.3667/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.1882 & 3667/16 4 ## **JUDGMENT** ## **[MACA Nos.3667/2016, 1882/2016]** Both these appeals are arising from O.P.(MV).No.2080 of 2014 on the files of the Motor Accidents Claims Tribunal, Kottayam. The said claim petition was submitted by the petitioners, who are the appellants in M.A.C.A.No.3667 of 2016. M.A.C.A.No.1882 of 2016 is filed by the 3[rd] respondent, the insurer of the vehicle involved in the accident. For convenience, the parties are hereinafter referred to based on their respective ranks in the claim petition. 2. The petitioners have filed this claim petition seeking compensation for the death of one Elsamma, who died due to the injuries sustained in a motor accident on 17.11.2014. The accident occurred when she was run over by a bus driven by the 1[st] respondent, causing fatal injuries. Even though she was immediately taken to the Medical College Hospital, while undergoing treatment, she succumbed to the injuries. The 2[nd] respondent was the registered owner of the said vehicle, and the 3[rd] respondent was its insurer. The deceased was working as a nurse in Government Service with a monthly income of M.A.C.A.No.1882 & 3667/16 5 Rs.58,300/-. She was 55 years old at the time of the accident. The claim petition was submitted in such circumstances. 3. The 1[st] respondent did not contest the matter. The 2[nd] respondent filed a written statement denying the allegation of negligence on the part of the 1[st] respondent. The 3[rd] respondent Insurance Company filed a written statement admitting the coverage of the policy but disputed the liability on various grounds. They also disputed the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A15 from the side of the appellant. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the bus and being the insurer of the bus, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.30,44,750/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 9% per annum from the date of petition till realization. Seeking enhancement of compensation, the petitioners have filed M.A.C.A.No.3667 of M.A.C.A.No.1882 & 3667/16 6 2016, whereas, challenging the quantum of compensation, M.A.C.A.No.1882 of 2016 was filed by the 3[rd] respondent Insurance Company. 5. Heard Sri.A.R.George, learned counsel for the appellant and Sri. K.A. Hashim, learned counsel for respondents 1 and 2. 6. The main dispute in these appeals is concerning the quantum of compensation. Specific contention put forward by the learned counsel for the petitioners is that the Tribunal had adopted a split multiplier, taking into account the period of remaining service the deceased had at the time of the death. The Tribunal has taken the monthly income evidenced by the salary certificate, pertaining to the period during which she was in service, and to determine the compensation after the period of retirement, only 50% of the monthly income was taken. Even though the learned counsel appearing for the 3[rd] respondent put forward the said contention, the crucial aspect to be noticed is that the position of law in this regard is covered in favour of the petitioner by virtue of the observations made by the Honourable Supreme Court in **Puttamma v. Narayana Reddy [2014(1)** M.A.C.A.No.1882 & 3667/16 7 **KLT 738]** . In the said decision, the Honourable Supreme Court clearly observed that the split multiplier cannot be applied. In the light of the aforesaid observations, I am of the view that the finding of the Tribunal is liable to be interfered with as regards the application of split multiplier. Thus, as a consequence, compensation has to be calculated by taking into account the monthly income as revealed in the salary certificate for the entire multiplier. While, doing the said exercise, it can be seen that the monthly income of the deceased after deduction of the tax was Rs.52,470/- which is rounded to Rs.52,500/- and the same has to be accepted for the purpose of computation of compensation. 7. The next aspect to be considered is compensation for future prospects. The learned counsel contends that, as per the principles in **National Insurance Co. Ltd v. Pranay Sethi** **[2017 (4) KLT 662 (SC)]** 10% of the monthly income has to be added towards future prospects. However, the said contention is opposed by the learned counsel for the 3[rd] respondent Insurance Company by pointing out that, at the time of the accident, the deceased had only seven months remaining in her M.A.C.A.No.1882 & 3667/16 8 service. The revision of pay was affected on 01.07.2014, which was about four months before the date of the accident. Therefore, the fact that there was no possibility for an increase in the salary was very much evident from the materials on record, and taking 10% future prospects was not at all warranted. After considering the materials placed on record, I find some force in the said contention. Of course, as pointed out by the learned counsel for the petitioners, in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** and **Pranay Sethi (Supra),** as part of the standardization, the addition of monthly income by a certain percentage was fixed towards future prospects. However, that was a general guideline applicable to cases where no specific materials were available to take a different view. In **Hemaraj v. Oriental Insurance Company Ltd.[2018 KHC 5274]** , the Honourable Supreme Court took the view that the standardized percentage of addition in **Pranay Sethi’s** case (supra) could be deviated from, if the evidence was so led to that effect, to the satisfaction M.A.C.A.No.1882 & 3667/16 9 of the Tribunal. In that case, the Honourable Supreme Court dealt with the question regarding the addition of 100% made by the Tribunal towards future prospects. Such a view was taken by the Honourable Supreme Court in **Sureshchandra Bagmal Doshi and Another v. New India Assurance Company Ltd. and others [ 2018 KHC 6310]** as well. A Single Bench of this Court in **Simi and Others v. M/s.Nair Brothers Carriers Pvt.Ltd and Others [2022 (6) KHC 603]** has followed the said decisions and held that when there is evidence on record requiring the addition of more than the percentage mentioned in **Pranay Sethi** (supra) and **Sarla Verma** (supra), nothing will preclude the court from accepting the said higher percentage. In the light of the said principle, it can be held that if the evidence is available, the court shall be at liberty to make a higher or lesser percentage of addition than contemplated in **Pranay Sethi’s case** (supra), as the case may be. It could be possible not to make any additions as well, taking note of the nature of the evidence that was adduced 8. When coming back to the facts of this case, it can be seen that the deceased had remaining service of only seven M.A.C.A.No.1882 & 3667/16 10 months. As rightly pointed out by the learned counsel for the 3[rd] respondent, the pay revision came into effect on 01.07.2014, whereas the death of the deceased was on 17.11.2014. Therefore, within the proposed date of superannuation, further pay revision was not expected, and therefore, the scope of future prospects was not at all there. In such circumstances, I am of the view that 10% addition towards future prospects need not be taken in this case. Therefore, compensation can be assessed on the monthly income of Rs.52,500/-, which is the amount after the deduction of the tax. Thus, when calculating the compensation with the above monthly income, the amount of compensation under the head loss of dependency would come to Rs.46,20,000/- [52500 x 12 x 11 x 2/3]. The amount already awarded under the said head is Rs.27,97,750/- and after the deduction of the said amount, the additional amount would come to Rs.18,22,250/-. 9. When moving on to the other heads, it can be seen that the Tribunal has awarded Rs.50,000/- towards the loss of consortium. However, as per the principles laid down in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others** M.A.C.A.No.1882 & 3667/16 11 **[2018 (3) KLT Online 3095 (SC)]** and **United India Insurance Co.Ltd v. Satinder Kaur [2021(4) KLT SN 10(C.No.8)SC]** both the appellants are entitled to get compensation of Rs.40,000/- each towards loss of consortium, thereby making a total of the Rs.80,000/-. Thus, an additional sum of Rs.30,000/- is to be granted under this head. At this juncture, the learned counsel for the 3[rd] respondent points out that the Tribunal has awarded excess compensation towards funeral expenses and loss of estate. Besides the same, Rs.50,000/- was granted towards love and affection, which was not warranted. I find some force in the said contention. As per **Pranay Sethi (supra),** the amount towards the funeral expenses and loss of estate should be Rs.15,000/- each, whereas the Tribunal awarded Rs.25,000/- and 1,00,000/- under these heads, respectively. Therefore, the excess amount under these heads would be Rs.10,000/- and 85,000/-, which are to be deducted. It is ordered accordingly. Similarly, in **Satinder Kaur (supra),** it was held that no separate compensation could be awarded towards love and affection when compensation for loss of consortium is given. Hence, Rs.50,000/- granted under M.A.C.A.No.1882 & 3667/16 12 the said head is also liable to be deducted. Thus, the additional compensation receivable by the appellant is determined as Rs.17,07,250/- [(1822250+30000)-(10000+85000+50000)]. In the light of the aforesaid observations and findings, these appeals are disposed of by modifying the award passed by the Motor Accidents Claims Tribunal, Kottayam, by granting an additional compensation of Rs.17,07,250/- (Rupees seventeen lakhs seven thousand two hundred and fifty only) to the petitioner. The said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate of 8% per annum from the date of petition till realization. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/20.11.23