High Court of KeralaDivision Bench2013-03-14Appeal partly allowed; enhanced compensation as...

MOLLYKUTTY RAJAPPAN, RAJAPPAN, AJAYAKUMAR P.R. v. FR. ZACHARIAH ATTAPATTU and NATIONAL ASSURANCE CO. LTD.

Case / Petition Number:MACA.No.452 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
Babu Mathew P. Joseph
Judgment Date: 2013-03-14
Court Decision / Holding: The appeal is partly allowed. The monthly income including future prospects is raised to Rs. 2,000; applying the Sarla Verma framework for ages 40–45 yields a multiplier of 14. With a 1/3 deduction for personal expenses, loss of dependency becomes Rs. 2,24,000. An additional Rs. 78,000 is awarded under this head as enhanced compensation; other heads remain unchanged. The insurer is directed to deposit the enhanced amount within two months, with interest at 9% per annum from the date of petition till realization.
Final Disposition: Appeal partly allowed; enhanced compensation as detailed above with insurer-directed deposit and 9% interest.

Parties to the Case

Appellants / Petitioners

Mollykutty Rajappan
Rajappan
Ajayakumara P.R.

Respondents

Fr. Zachariah Attapattu
National Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. K. Kosy
• Sri. Sabu I. Koshy

Counsels for Respondents

• Sri. Liji J. Vadakedom
• Smt. Sarah Salvvy

Case Synopsis & Summary

This appeal under MACA No. 452 of 2007 arises from an award by the Motor Accidents Claims Tribunal, Pathanamthitta, in O.P. (MV) No. 1449 of 1999, for the death of Jayakumar in a motor vehicle accident involving a vehicle owned by the 1st respondent and insured by the 2nd respondent. The Tribunal found negligence and awarded compensation under heads including pain and suffering, medical expenses, transport, funeral, love and affection, and loss of estate, with a total of Rs. 1,88,500. It fixed the deceased’s monthly income at Rs. 1,500 and applied a multiplier of 13 for dependency. The appellants contended that income was understated and future prospects should be considered; Ext.A1 (FIR) indicated the deceased worked in a courier service, suggesting a higher income. They relied on the Supreme Court’s Sarla Verma framework to apply a higher multiplier and include future prospects, and urged enhanced compensation on other heads. The High Court held that the monthly income should be Rs. 2,000 including future prospects, and, applying Sarla Verma for ages 40–45, used a multiplier of 14. With a 1/3 deduction for personal expenses, loss of dependency rose to Rs. 2,24,000, plus Rs. 78,000 as additional compensation under this head. Other heads remained unchanged. The appeal is disposed of as above, with 9% interest and deposit within two months by the insurer.

Legal Doctrines & Maxims

Future prospects in calculating loss of dependency as per Sarla Verma v. Delhi Transport Corporation
1/3 deduction for personal expenses from monthly income while computing dependency loss

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal wrongly fixed the deceased’s monthly income at Rs. 1,500 despite evidence suggesting a higher earning (the deceased was reported to be employed in a courier service). They argued for considering future prospects and increasing the multiplier beyond 13, in line with Sarla Verma v. DTC, to compute loss of dependency, which would result in a larger compensation. They urged enhancement of sums for pain and suffering, love and affection, and loss of estate, and for medical and other heads, to reflect actual costs and the deceased’s earning capacity.

Contentions of Respondents

The respondents argued that there was no reliable evidence of the deceased’s actual income; the Tribunal’s assessment should stand where evidence is lacking. They contended that the court should not adopt speculative higher earnings and should consider the income in 1999 economic context. They supported the use of existing heads and cautioned against altering the established multiplier beyond the material facts before the Tribunal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	Court relied on Sarla Verma to apply future prospects and the appropriate multiplier (14) for the age group 40–45, influencing the loss of dependency calculation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934** **MACA.No. 452 of 2007 ( )** **------------------------OPMV.1449/1999 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA.** **................** ## **APPELLANTS/PETITIONERS:** **------------------------------------------** **1. MOLLYKUTTY RAJAPPAN, W/O.RAJAPPAN, PANTHRANDILCHIRA HOUSE, VAZHAPPALLY KIZHAKKU VILLAGE, CHANGANACHERRY TALUK.** **2. RAJAPPAN, PANTHRANDILCHIRA HOUSE, VAZHAPPALLY KIZHAKKU VILLAGE,** **CHANGANACHERRY TALUK.** ## **3. AJAYAKUMAR P.R., S/O.RAJAPPAN,** - **PANTHRANDILCHIRA HOUSE, VAZHAPPALLY KIZHAKKU VILLAGE, CHANGANACHERRY TALUK.** **BY ADVS.SRI.T.K.KOSHY, SRI.SABU I.KOSHY.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** ## **1. FR. ZACHARIAH ATTAPATTU,** **PRESIDENT, PALAI SOCIAL WELFARE SOCIETY, PALAI.** ## **2. BRANCH MANAGER,** **NATIONAL ASSURANCE CO. LTD., CHERUPUSHPAM BUILDINGS, MAIN ROAD, PALAI P.O., KOTTAYAM DISTRICT.** **R1 BY ADV. SRI.LIJI.J.VADAKEDOM. R2 BY ADV. SMT.SARAH SALVY.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **S.SIRI JAGAN & A.M.SHAFFIQUE, J * * * * * * * * * * * * * * * *** M.A.C.A.No.452 of 2007 ---------------------------------------Dated this the 14[th] day of March 2013 ## **J U D G M E N T** The appellants in this appeal are the claimants in O.P. (MV) No.1449 of 1999 before the Motor Accident Claim Tribunal, Pathanamthitta. Their son Jayakumar died in a motor accident on account of the negligent driving of a vehicle owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellants filed the original petition claiming compensation for the death of their son. The Tribunal found negligence on the part of the driver of the vehicle and found that the respondents are liable to pay to the appellants compensation for the death of Jayakumar. Thereafter the Tribunal awarded compensation under various heads as follows: Pain and suffering Rs.10,000/- Compensation towards medical expenses, Rs.7,500/transport to hospital and funeral M.A.C.A.No.452 of 2007 2 Compensation for love and affection and affection Rs.10,000/Loss of estate Rs.5,000/- Loss of dependency Rs.1,56,000/[Rs.1,500/- x 12 x 13 x 2/3) Total **Rs.1,88,500/-** 2. Dissatisfied with the compensation awarded, the appellants have filed this appeal claiming enhanced compensation. The primary contention of the appellants is that the Tribunal has arbitrarily fixed the monthly income of the deceased only as Rs.1,500/- although the claim of the appellants was for Rs.4,500/-. According to the appellants, as is clear from Ext.A1-F.I.R, at the earliest point of time after the accident, the 2[nd] appellant had given a statement in which it has been specifically stated that the deceased was employed in a courier service. An employee of a courier service would get much more than Rs.1,500/- per month is the contention. It is also the contention of the appellants that the Tribunal did not provide for future prospects of the M.A.C.A.No.452 of 2007 3 deceased while fixing the income of the deceased. It is contended that the compensation for pain and suffering, miscellaneous expenses, loss of love and affection, loss of estate are also on the lower side. It is further submitted that the Tribunal has taken the multiplier as 13 although in the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation** _[2010 (2) KLT 802 (SC)]_ , for persons aged between 40-45 years which the appellants 1 and 2 are, the multiplier to be adopted is 14. 3. We have heard the learned counsel for the Insurance Company as well. The appellants did not adduce any reliable evidence regarding the income of the deceased. Of course, in Ext.A1 FIR, it is mentioned that the deceased was employed in a courier service. Even if the same can be accepted as correct, that does not prove the monthly income of the deceased. The accident was on 08/09/1999. Therefore, what we have to consider is the economic conditions in 1999. In the absence of any evidence regarding the actual income of the deceased, the Tribunal M.A.C.A.No.452 of 2007 4 cannot be faulted in making a guess work and fixing the income as Rs.1,500/- per month. But it is a fact that as per the latest Supreme Court decisions, while calculating the loss of dependency, future prospects of the deceased also has to be considered. 4. Taking into account all these facts, we are inclined to fix the monthly income of the deceased including future prospects as Rs.2,000/- per month. The parents of the deceased are aged 43 years and 45 years respectively. The multiplier has to be fixed based on the age of the parents. In **Sarla Verma** (Supra) for persons of the age group 40-45 years, the multiplier fixed is 14. Since there are more than two dependents, 1/3[rd] has to be deducted from the monthly income of the deceased for personal expenses. Calculated thus, the appellants would be entitled to Rs.2,24,000/- as compensation for loss of dependency (Rs.2,000/- x 12 x 14 x 2/3) instead of Rs.1,56,000/-. The appellants would be entitled to additional compensation of Rs.78,000/- under this head. M.A.C.A.No.452 of 2007 5 5. Despite the persuasive arguments of the learned counsel for the appellants, we are not inclined to enhance the compensation under the other heads since we are of the opinion that the Tribunal has awarded just compensation under the other heads. Consequently, the appellants would be entitled to Rs.78,000/- more over and above what has been awarded by the Tribunal as additional compensation. This amount would carry interest at the rate of 9% per annum from the date of the claim petition till the date of realisation of the amount. The 2[nd] respondent - insurance company is directed to deposit that amount also within a period of two months. The appeal is disposed of as above. (sd/-) ## **(S.SIRI JAGAN, JUDGE)** (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr /True Copy/ PA to Judge M.A.C.A.No.452 of 2007 6 M.A.C.A.No.452 of 2007 7 M.A.C.A.No.452 of 2007 8