Mary Samuel v. Ramzan Pattillath and others (MACA No. 258 of 2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 MACA.No. 258 of 2010() ---------------------OPMV.547/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... ## APPELLANTS/PETITIONERS ------------------------- 1. MARY SAMUEL, W/O.LATE SUNNY GEORGE, AGED 44 YEARS, KANIYAMPARAMBIL HOUSE, NEYYUR KARA, MUTHOLI P.O., PALA, NOW RESIDING AT SHARON NIVAS, CRD, MENON COLONY, KALLEPPULLY P.O.,PALAKKAD. 2. SUNIT, S/O.LATE SUNNY GEORGE, KANIYAMPRAMHIL HOUSE, NEYYUR KARA, MUTHOLI P.O., PALA, NOW RESIDING AT SHARON NIVAS, CRD, MENON COLONY, KALLEPPULLY P.O., PALAKKAD. 3. SHARAN (MINOR),AGED 10 YEARS, DATE OF BIRTH 20-08-90,REPRESENTED BY MOTHER MARY SAMUEL, W/O.LATE SUNNY GEORGE, KANIYAMPARAMBIL HOUSE, NEYYUR KARA, MUTHOLI P.O., PALA, NOW RESIDING AT SHARON NIVAS, CRD, MENON COLONY, KALLEPPULLY P.O. PALAKKAD. 4. THRESIAMMA JOSEPH, AGED 79 YEARS, W/O.JOSEPH, KANIYAMPARAMBIL HOUSE, NEYYUR KARA, MUTHOLI P.O., PALA, NOW RESIDING AT SHARON NIVAS, CRD,MENON COLONY, KALPPULLY P.O., PALAKKAD. BY ADV. DR.GEORGE ABRAHAM ## RESPONDENT(S): RESPONDENTS -------------------------- 1. RAMZAN PATTILLATH, S/O.HASSAINAR.K., PATTILLATH HOSUE, PUTHUPPADY KARA, PUTHUPPADY P.O., NOW RESIDING AT HOSDURG BRANCH, KANHANGAD POST, KASARAGODE DISTRICT. 2. P.K.MOHAMMED KUNHI, S/O.ANDUMAYI, KANHUNGAD, KANHUNGAD P.O.,KOTTACHERY. NOW RESIDING AT HOSDURG BEACH, KANHANGAD POST, KASARGODE DISTRICT. 3. THE MANAGER, UNITED INDIA INSURANCE CO. LIMITED RAHMATH SHOPPING COMPLEX, KOTTACHERY, KANHANGAD. 4. THE BRANCH MANAGER ORIENTAL INSURANCE COMPANY LIMITED, P.B.NO.20,SHOBA, TSM COMPLEX, R.S.ROAD, PALAKKAD. ADV. SRI.P.JACOB MATHEW FOR R4 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.258 of 2010 ---------------------------------------Dated this the 25[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** The claimants are the appellants. They are wife aged 39 years, two minor children aged 13 years and 10 years and mother aged 75 years of the deceased, a person aged about 48 years who suffered injuries and succumbed to such injuries suffered in a motor accident which took place on 6/2/2000. He was employed as Senior Manager in Milma. His monthly income at the time of death was Rs.23,580/-. Out of this Rs.5,200/- was payable as income tax and profession tax . The claimants staked the claim for a total amount of Rs.25 lakhs as compensation. 2. Against the total claim of Rs.25 lakhs, the Tribunal awarded Rs.5,93,138/- as per the details given below: |**_Sl.No._**|**_Head of the claim_**|**_Amount awarded_**| |---|---|---| |1|loss of consortium|Rs.10,000/-| 2 M.A.C.A.No.258 of 2010 |**_Sl.No._**|**_Head of the claim_**|**_Amount awarded_**| |---|---|---| ||Amount of compensation till<br>retirement<br>Amount of compensation after<br>retirement|12253x12x7= 10,29,259/-<br>1667x12x6 = 1,20,024/-<br>-------------------------------------<br>-<br>Rs. 11,49,276/-| |2|Loss of love and affection|Rs.10,000/-| |3|Loss of State|Rs.10,000/-| |4|Funeral Expenses|Rs. 5,000/-| |5|Transportation charges|Rs. 2,000/-| ||Total|Rs.11,86,276/-| ||50% contributory negligence Hence<br>net amount|Rs..5,93,138/-| 3. This is the third time the matter is coming to this Court. The question of negligence is settled and this Court by judgment dated 27/2/2009 in M.A.C.A.2201/2007 had come to the conclusion that the deceased was equally responsible along with the driver of the insured vehicle for the accident. The Tribunal had, therefore, awarded only 50% of the total loss as compensation to the claimants. 4. We have heard the learned counsel for the appellants and the learned counsel for the Insurance company. 5. The challenge is raised only against the quantum of compensation awarded by the Tribunal. 3 M.A.C.A.No.258 of 2010 6. Called upon to explain the challenge and be specific, the learned counsel for the appellants assails the impugned award on various grounds. First of all, the learned counsel for the appellants contends that the tribunal ought to have followed the dictum in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** and must have made due provision for enhancement/improvement of prospects in employment. The tribunal did not do the same. This is incorrect, submits counsel. We agree. The deceased was aged 48 years and without any dispute 30% increase ought to be conceded to provide for improvement of prospects in employment. 7. The tribunal erred grossly in reckoning differential multiplicand, contends the learned counsel for the appellants next. The deceased, being a person of the age group 45-50, 13 was rightly taken as the multiplier by the tribunal. But the tribunal, assuming that the deceased would have retired from service under Milma where he was working as a Senior Manager at the age of 55 reckoned 7 as the multiplier for calculating the loss suffered till the date of retirement. Thereafter for the remaining six years, the tribunal reckoned only Rs.2,500/- as the monthly income. The learned counsel for the appellants submits 4 M.A.C.A.No.258 of 2010 that this computation made by the tribunal is wholly erroneous. 8. Relying on the Staff Regulations of the Malabar Regional Co-operative Milk Producers Union Ltd., the learned counsel for the appellants contends that the age of retirement of the deceased was 58 years and not 55 years. This was urged before the tribunal also, contends the learned counsel for the appellants. The learned counsel for the appellants contends that differential multiplicand is not contemplated as per the dictum in **Sarla Verma** (Supra). The argument of the counsel is that the same multiplicand must be taken for the entire multiplier specified in **Sarla Verma** (Supra). 9. It is true that **Sarla Verma** (Supra) had not gone into that question in detail; but, according to us, that is no reason for a tribunal to ignore the reality of the impending requirement. It is inevitable that the deceased must have retired. It is inevitable that his income would have been reduced consequent to such retirement. Of course, post retiral assignments may have been taken up by the deceased and he may have earned some income from such assignment/engagement. But, that cannot, at any rate, operate as a reason against the tribunal realistically taking note of the possible decrease in the monthly income during the 5 M.A.C.A.No.258 of 2010 period taken into account by the multiplier. The primary mandates to all tribunals is to award just compensation, as can be seen from Section 168 of the M.V.Act. Realistically and scientifically the present income cannot be taken into consideration for the entire period of multiplier. If a person succumbs to injuries at the age of 54 ½ years and he is to retire at the age of 55 years, it would be totally unrealistic to reckon the multiplier 7 applicable to such person and take into account the present income as the rule of the thumb to ascertain the multiplicand for the entire period. That would certainly be unjust. Compensation cannot be a wind fall or bonanza. Attempt must be made to ascertain the actual loss and ensure that just compensation is awarded on the basis of the actual loss. In that view of the matter, we find absolutely nothing in **Sarla Verma** (Supra) which can persuade the court to ignore the realities in a given situation and accept the same multiplicand for the entire period of the multiplier ignoring the impending unavoidable retirement on superannuation. 10. However, we note that the tribunal had assumed that the deceased shall have to retire on superannuation at the age of 55 years without adequate material. The regulations placed 6 M.A.C.A.No.258 of 2010 before us indicate that the age of retirement is only 58 years. We find it absolutely reasonable to accept that contention of the learned counsel for the appellant. So reckoned, 10 must be reckoned as the multiplier and during the period of such multiplier, the present income, duly modified by the provision for improvement of prospects in employment, must be reckoned as the multiplicand. 11. Now coming to the post retiral engagement/assignment, the tribunal took only Rs.2,500/- as the income for the post retiral period. The deceased was working as the Senior Manager of MILMA. We are of the opinion that it would be absolutely reasonable to assume that the deceased would have earned an income of Rs.5,000/- even after his retirement. For the final three years (13 minus 10) of the multiplier, we are satisfied that Rs.5,000/- can be reckoned as the monthly income. 12. The above discussions lead us to the conclusion that the appellants are entitled to the following further amount as compensation under the head of loss of dependency. i) Amount of compensation Rs.8,82,261/for the period till retirement Rs.19,11,520/- [(23,580 minus 5,200) 7 M.A.C.A.No.258 of 2010 x 12 x 130/100 x 2/3 x 10 (13-10)] minus Rs.10,29,259/- ## Less |ii)|Amount of compensation for the|Rs.24/-| |---|---|---| ||period after retirement|| ||Rs.1,20,000/- (Rs.5,000/- x 12|| ||x 2/3 x 3) minus Rs.1,20,024|| ||= Rs.24/- less than the amount|| ||awarded by the tribunal<br>|-----------------------| ||**Total**<br>|**Rs.8,82,237/-**| |||**==========**| 50% of the amount i.e. Rs.4,41,118.50/- rounded off to Rs.4,41,120/- 13. There is no challenge against the impugned award on any other grounds. 14. In the result, a) This appeal is allowed in part. b) Appellants are found entitled to a further amount of Rs.4,41,120/- (Rupees four lakhs forty one thousand one hundred and twenty only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation at the rate and for the period as directed by the tribunal. d) All other directions of the Tribunal are upheld. M.A.C.A.No.258 of 2010 8 **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.258 of 2010 9 10 M.A.C.A.No.258 of 2010 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010