New India Assurance Company Limited v. Pennamma Varghese and Others

MACA.No.2264/2016 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA,_ _1945_ ## _MACA NO. 2264 OF 2016_ _AGAINST THE ORDER/JUDGMENT OPMV 1053/2014 OF MOTOR ACCIDENT_ ## _CLAIMS TRIBUNAL PALA_ ## _APPELLANT/3rd RESPONDENT:_ _THE NEW INDIA ASSURANCE COMPANY LIMITED, PALA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, KOCHI 11._ _BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENT/PETITIONERS:_ _1 PENNAMMA VARGHESE, W/O.LATE VARGHESE, NADUTHOTTIYIL HOUSE, ERAVIMANGALAM KARA, MANJOOR VILLAGE, PIN 686 603._ _2 TONY MON N.V, S/O.LATE VARGHESE, NADUTHOTTIYIL HOUSE, ERAVIMANGALAM KARA, MANJOOR VILLAGE, PIN 686 603._ _3 SAYONA VARGHESE, D/O.LATE VARGHESE, NADUTHOTTIYIL HOUSE, ERAVIMANGALAM KARA, MANJOOR VILLAGE, PIN 686 603._ MACA.No.2264/2016 2 _BY ADVS. SRI.P.C..HARIDAS (CAVEATOR) SRI.P.C..HARIDAS CAVEATOR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2264/2016 3 ## **JUDGMENT** This appeal is submitted by the 3rd respondent, the insurer in O.P.(MV).No.1053 of 2014 on the files of the Motor Accidents Claims Tribunal, Pala. The said claim petition was submitted by respondents 1 to 3 herein seeking compensation for the death of one Varghese due to the injuries sustained in a motor accent that occurred on 22.12.2013. The accident occurred when the motorcycle ridden by the deceased was hit by a bus bearing registration No.KL 5/U-610 driven by the 1st respondent in the claim petition in a rash and negligent manner. The bus was owned by the 2nd respondent. The claim petition was submitted in such circumstances by the appellant herein. 2. The deceased was working as an Office Attendant in the High Court of Kerala with a monthly income of Rs.22,822/-. The claim petition was submitted in such circumstances. The first claimant was the wife and the other claimants were the children of the deceased. The appellant/3[rd] respondent filed a written statement admitting the coverage of policy for the bus but MACA.No.2264/2016 4 disputed the liability on various grounds. Negligence as well as the quantum of compensation, were also disputed by them. 3. The evidence in this case consists of Exts.A1 to A11 from the side of the claimants, and no evidence was adduced by the respondents in the claim petition. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the bus and being the insurer of the said vehicle, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.27,50,986/- and the said amount was directed to be deposited by the appellant with interest at the rate of 9% per annum from the date of petition till realization. This appeal is submitted by the appellant in such circumstances, challenging the quantum of compensation. 4. Heard Sri.Mathews Jacob, learned Senior counsel for the appellant and Sri.P.C.Haridas, learned counsel for the claimants. 5. The main contest raised by the learned counsel for the appellant relates to the amount awarded as compensation under MACA.No.2264/2016 5 the head of loss of dependency. It was pointed out that the Tribunal, while assessing the compensation, failed to notice the fact that the deceased was aged 51 years at the time of the accident and was supposed to retire from service on superannuation on attaining the age of 56 years. Therefore, taking the monthly income he was receiving at the time of the accident for the entire period by applying a multiplier of 11 was not proper, contends the learned senior counsel. However, the aforesaid question has now been settled by the Honourable Supreme Court in **Puttamma v. K.L Narayana Reddy [2014 (1) KLT 738].** Similarly, in **Valli R. and Others v. Tamil Nadu State Transport Corporation Ltd.[(2022) 5 SCC 107],** after referring to various decisions of the Honourable Supreme Court, reiterated that the split multiplier taking into account different amounts as income for the period in service and the post-retirement period cannot be made applicable while assessing the compensation. The Honourable Supreme Court made the said observation in a case where the deceased was 54 years old at the time of the accident. Thus, in the light of the aforesaid decisions, the contentions put MACA.No.2264/2016 6 forward by the learned counsel for the appellant cannot be accepted. The fact that the deceased had a remaining service of only five years cannot be treated as a matter of relevance to determine the multiplier or the monthly income. Hence, I do not find any discrepancy in the method of computation adopted by the Tribunal for assessing the compensation for loss of dependency. 6. When moving on to the other heads, it can be seen that the amounts awarded by the Tribunal are reasonable. Of course, the learned Senior counsel vehemently contended that the Tribunal awarded Rs.15,000/-under the head pain and suffering was not at all warranted. However, the learned counsel for the respondent/claimant would point out that even though the accident occurred on 22.12.2013, the appellant died on 08.04.2014, that is, after more than three months of undergoing treatment. Therefore, considering the prolonged period of painful life lived by the deceased before succumbing to the injuries, I am of the view that the amount awarded by the Tribunal towards pain and suffering is reasonable. Of course, in **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** , the MACA.No.2264/2016 7 Honourable Supreme Court held that compensation for pain and suffering need not be granted for the hardship caused to the legal heirs of the deceased. The Honourable Supreme Court made the said observations after referring to the observations made in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** . However, the crucial aspect to be noticed is that the pain and suffering referred to in the said decision was related to the pain and suffering of the relatives of the deceased consequent to the death. On the other hand, in this case, the pain and suffering awarded was towards the suffering of the deceased on account of the prolonged treatment which he had undergone before death. As per the provisions of the Kerala Torts (Miscellaneous Provisions) Act, 1976, the claim for personal injuries in respect of tortuous liability would survive upon the death of the deceased to the legal representatives. In such circumstances, I am of the view that the claimants are entitled for compensation. When considering the amounts awarded under the other heads, I also do not find any unreasonableness so as to warrant interference. MACA.No.2264/2016 8 In such circumstances, I do not find any justifiable grounds to interfere in the award and accordingly, this appeal is dismissed and the award passed by the Tribunal is hereby confirmed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/7.12.23