National Insurance Company Ltd. v. Philomina and Others (MACA No. 1836 of 2007 (A) & MACA No. 1884 of 2007)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933 MACA.No. 1836 of 2007 (A) -------------------------------OPMV.585/2002 of MACT, NORTH PARAVUR -------------- APPELLANT(S)/3RD RESPONDENT: --------------------------------------- NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, M.M.JN.KOLENCHERY REPRESENTED BY THE MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S)/CLAIMANT 1 TO 5 & RESPONDENTS 1, 2 & 4: --------------------------------------------------------------------- 1. PHILOMINA, W/O.LATE PAULOSE, THYPPARAMBIL HOUSE, KONGORPILLY POST, NORTH PARAVUR. 2. JAYA PAULOSE, D/O.LATE PAULOSE -DO- 3. GIPSON PAULOSE, S/O.LATE PAULOSE, -DO- 4. JANCY PAULOSE, D/O.LATE PAULOSE, -DO- 5. JIJI PAULOSE, D/O.LATE PAULOSE, -DO- 6. BHESHEER, S/O.ABDULKADAR, PARATTU(H) KAVUNGAPARAMBU, CHALAKULAM, PATTIMATTAM. 7. PAREETH, S/O.ALI, PARATTU HOUSE, KAVUMGAPARAMBU, CHALAKULAM, PATTIMATTAM. MACA.No. 1836 of 2007 (A) -2- 8. THE ORIENTAL INSURANCE COMPANY LTD., CHALAKKUDI. R,R6 BY SRI.C.K.ABDUL RAHIM R,R8 BY SRI.GEORGE CHERIAN (THIRUVALLA) R,R1-5 BY SRI.T.K.KOSHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2012, ALONG WITH MACA. 1884/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.1836 & 1884 of 2007 -----------------------------------------------Dated this the 5[th] day of March, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ Both these appeals are directed against the award passed by the Motor Accidents Claims Tribunal, North Parur in O.P. (MV) No.585/02. 2. The claimants who are the aged mother and elder siblings of one Jenson who met with his death in a road traffic accident occurred on 08/11/01 approached the Tribunal claiming a compensation of ` 10 lakhs under various heads. The learned Tribunal after considering the evidence passed an award of ` 3,43,806/- directing the 3[rd] respondent in the claim petition (National Insurance Co. Ltd.) to pay the amount as the offending vehicle was covered by a valid insurance policy issued by them. 3. Allegedly while the deceased was riding his M. A. C. A No.1836 & 1884 of 2007 -2- motorcycle he was hit down by a tempo which was coming from the opposite direction. 4. M.A.C.A No.1836/07 is preferred by the insurer contending that the compensation awarded by the learned Tribunal is excessive. Claimants on the other hand preferred M.A.C.A No.1884/07 challenging the adequacy of compensation. 5. For the convenience of the discussion the parties can be referred to as they are arrayed in the Original Petition before the Motor Accidents Claims Tribunal. 6. We have heard the learned counsel appearing for the claimants and the learned counsel appearing for the respondent Insurance Company. Allegedly the deceased was working in Binani Zinc Ltd., Binanipuram. He was aged 30 years at the time of his death and was unmarried. The first claimant who is the mother of the deceased was aged 56 at the time of the accident. One of the claimants is his elder brother who was 35 years old and the other claimants are M. A. C. A No.1836 & 1884 of 2007 -3- his elder sisters who were aged 34, 32 and 31 years at the time of the accident. According to the learned counsel for the claimants, the monthly income of the deceased was ` 10,000/-. However, the learned Tribunal has fixed his monthly income at ` 5,079/-. This according to the learned counsel for the claimants is on the lower side. In support of his argument, reliance was placed by the learned counsel for the claimants on Exts.A9 and A10 which are the certificates issued by the employer of the deceased. The learned counsel for the Insurance Company per contra would submit that as lot of deductions were made from the salary of the deceased, the monthly income of ` 5,079/- fixed by the Tribunal is reasonable. It was also pointed out by the learned counsel for the Insurance Company that following the principle laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC) one half of the amount should have been deducted in consideration of the expenses which the deceased would have incurred for M. A. C. A No.1836 & 1884 of 2007 -4- maintaining himself had he been alive. In the instant case, the learned Tribunal has deducted only one third. This was seriously challenged by the Insurance Company. 7. We have perused Exts.A9 and A10 certificates. Ext.A9 would reveal that the basic pay of the deceased on the date of his death was ` 2,756/- and his D.A. was ` 3,743/-. So the total emolument including basic pay and dearness Allowance was ` 6,499/-. It was pointed out by the learned counsel for the claimants that the deceased was working in a reputed company, though it was under private management. According to the learned counsel for the claimants, though certain deductions from the monthly salary of the deceased are shown in the certificates, those certificates show that the deceased was drawing some allowances also. We do notice that the company where the deceased was working is one of the reputed companies in the Eloor Industrial Area. Hence, we are of the view that some hike has to be given in the total emoluments drawn by M. A. C. A No.1836 & 1884 of 2007 -5- the deceased i.e. including basic salary and D.A. taking into account the future prospects in employment. So for computation of loss of dependency, we are of the view that the monthly income drawn by the deceased can be fixed at ` 7,000/-. The learned Tribunal has adopted the multiplier '8' which is applicable to the age group of the first claimant who is the eldest among the claimants. When the loss of dependency is re-calculated fixing the monthly income of the deceased at ` 7,000/-, adopting the multiplier eight and after deducting one half of the amount in consideration of the expenses which the deceased would have incurred had he been alive for maintaining himself [see Sarla Verma v. Delhi Transport Corporation (cited supra)] the dependency compensation will stand enhanced to ` 3,36,000/-. As the learned Tribunal has awarded only ` 3,25,056/- the claimants will become entitled to get ` 10,944/- more as the compensation for loss of dependency. 8. We have perused the impugned award and find that M. A. C. A No.1836 & 1884 of 2007 -6- towards loss of love and affection, only a sum of ` 5,000/was awarded by the learned Tribunal. It was pointed out that the deceased was the only earning member of the family and the first claimant is a widow. It was brought to our notice that the deceased got employment in Binani Zinc Ltd. in dying in harness scheme after the death of his father. So considering all these relevant circumstances, we award an additional amount of ` 25,000/- as compensation for loss of love and affection. 9. Towards loss of estate, it is seen that, no compensation was awarded by the learned Tribunal. So we award a sum of ` 5,000/- as compensation for loss of estate. 10. Towards medical expenses and funeral expenses a sum of ` 2,500/- has been awarded by the Tribunal. We are of the view that the amount awarded by the Tribunal under those heads is on the lower side. So we award an additional sum of ` 7,500/- under those heads. 11. Thus, the claimants who are the appellants in M. A. C. A No.1836 & 1884 of 2007 -7- M.A.C.A No.1884/07 become entitled to get a sum of ` 48,444/-. The amount additionally awarded and the amount already awarded shall carry interest at the rate of 7.5% per annum from the date of the petition till 19/10/2005 and thereafter from the date of the award till the date of realisation. 12. Both the appeals are allowed and the award shall stand modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE