Nirmala Devi and others v. N.K. Thomas and others and Oriental Insurance Co. Ltd.

``` INTHEHIGHCOURTOFKERALAATERNAKULAM ``` ``` PRESENT ``` ``` THEHONOURABLEMRS.JUSTICESOPHYTHOMAS ``` ``` FRIDAY,THE17[TH]DAYOFMARCH2023/26THPHALGUNA,1944 ``` ``` MACANO.1972OF2016 ``` ``` AGAINSTTHEORDER/JUDGMENTINOPMV789/2014OFMOTORACCIDENTS CLAIMSTRIBUNAL,KOTTAYAM ``` ## `APPELLANTS/PETITIONERS:` `1. *NIRMALA DEVI, AGED 50 YEARS, W/O. LATE SOMASHEKARAN NAIR, KALAYIL PUTHENPRARMBIL SOUPARNIKA HOUSE, PALATHARAKADAVU BHAGOM, KUZHIMATTOM PO, PANCHIKADU *( DIED).` `2. * (AKHIL S. SHEKAR, AGED:19 YEARS, KALAYIL PUTHENPARAMBIL SOUPARNIKA HOUSE, PALATHARAKADAVU BHAGOM, KUZHIMATTOM PO, PANCHIKADU.` `3. ARYA S. SHEKAR, AGED:15 YEARS (MINOR),KALAYIL PUTHENPARAMBIL SOUPARNIKA HOUSE, PALATHARAKADAVU BHAGOM, KUZHIMATTOM PO, PANCHIKADU. REPRESENTED BY 1ST PETITIONER NIRMALA DEVI, AGED:50 YEARS, W/O LATE SOMESHEKARAN NAIR, KALAYIL PUTHENPARAMBIL SOUPARNIKA HOUSE, PALATHARAKADAVU BHAGOM,KUZHIMATTOM PO, PANCHIKADU) * LEGAL HEIRS OF DECEASED 1ST APPELLANT.` ``` (APPELLANTS2AND3ARETHELEGALHEIRSOFTHEDECEASED FIRSTAPPELLANTASPERMEMODTD.22.5.2022ANDTHATIS RECORDEDASPERORDERDTD.1/7/22INMACA1972/16) ``` ``` BYADVS. ``` ``` SRI.K.A.HASHIM ``` ``` SRI.M.I.ISMAIL ``` MACA No.1972 of 2016 2 ## `RESPONDENTS/RESPONDENTS:` `1. N.K. THOMAS, S/O KURIAKOSE, NADAYIL HOUSE, NEELAMPEROOR PO, KURICHY, CHANGANACHERRY-686532.` `2. MATHEW ABRAHAM, PATHIYAMADAM HOUSE, NEELAMPEROOR PO, KURICHY, CHANGANACHERRY-686532.` `3. THE ORIENTAL INSURANCE CO.LTD, DIVISIONAL OFFICE, KOTTAYAM-686001.` ``` BYADV.SRI.A.RGEORGE. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEEN FINALLYHEARDON09.03.2023,THECOURTON17.03.2023 DELIVEREDTHEFOLLOWING: ``` MACA No.1972 of 2016 3 ## **SOPHY THOMAS, J.** --------------------------------------------- ## MACA No.1972 of 2016 ---------------------------------------------- Dated this the 17[th] day of March, 2023 ## **J U D G M E N T** This appeal has been preferred by the claimants in OP(MV) No.789 of 2014 on the file of Motor Accidents Claims Tribunal, Kottayam, assailing the award on the ground of inadequacy of compensation. 2. The appellants are the wife and children of Sri.Somasekharan Nair who died in a road traffic accident occurred on 14.01.2014. While Sri.Somasekharan Nair was driving his car, a tipper lorry bearing registration No.KL 33/C 6173 driven by the 1[st] respondent in a rash and negligent manner, rammed into the car, and he sustained fatal injuries, and later died at hospital. The appellants/legal heirs of the deceased approached the Tribunal claiming compensation of Rs.50 lakh. But, the Tribunal awarded only Rs.23,96,550/-. Hence this appeal. MACA No.1972 of 2016 4 3. The 1[st] respondent was the driver, 2[nd] respondent was the owner and 3[rd] respondent was the insurer of the offending tipper lorry. Respondents 1 and 2 remained ex parte. The accident, death and the policy of the offending vehicle were not disputed by the 3[rd] respondent/ insurer. 4. No oral evidence was adduced from either side before the Tribunal. Exts.A1 to A7 and B1 to B3 were marked. 5. Now let us see whether any interference is warranted in the impugned award. 6. Heard Sri.K.A Hashim, learned counsel appearing for the appellant and Sri.A.R George, learned counsel appearing for the contesting 3[rd] respondent. 7. Pending appeal, the 1[st] appellant died and appellants 2 and 3 were recorded as the legal heirs of deceased 1[st] appellant, as per memo dated 22.05.2022. 8. The deceased Somasekharan Nair was working as Sub Inspector of Police (Hr.Gr) at Changanassery Police Station. He was aged 54, earning monthly salary of Rs.39,361/-. Learned Tribunal accepted Ext.A7 salary certificate to take his monthly salary as Rs.38,441/-. Since the deceased was a Government servant due to MACA No.1972 of 2016 5 retire at the age of 56, relying on the decision _**Valsa and others**_ vs. _**Ulahannan Thomas and others**_ (2015 (1) KLT 781), the learned Tribunal split his salary and applied the multiplier to assess compensation for loss of dependency. Learned Tribunal was of the view that, a Government servant to retire on a particular day on superannuation at the age of 56, is a special circumstance to adopt the calculation based on _Valsa’s case_ cited supra. Deceased Somasekharan Nair had to retire in April 2015. That was taken as a special circumstance to apply split salary. 9. The Apex Court has time and again reminded and deprecated the practice of applying the split multiplier. In _**R. Valli and others** vs._ _**Tamil Nadu State Transport Corporation**_ [(2022) 5 SCC 107], the Apex Court held that the method of determination of compensation applying two multipliers is clearly erroneous and run counter to the judgment **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** [AIR 2017 SC 5157] affirming the judgment _**Sarla Varma and others**_ vs. _**Delhi Transport Corporation and another**_ (2010 (2) KLT 802). The Apex Court was pleased to adopt the multiplier of 11 without any split in the case of a 54 year old man, who had to retire at the age of 58. So, in the case on hand also, the learned Tribunal went MACA No.1972 of 2016 6 wrong in applying the salary splitting into two and then applying the multiplier, taking retirement of the deceased on superannuation as a special circumstance. 10. As per Ext.A7 salary certificate, the deceased was getting monthly salary of Rs.38,441/-. After deducting 10% towards income tax, his remaining salary would be Rs.34,597/- per month. Since the deceased was aged 54 with a permanent job, 15% addition towards future prospects is to be allowed. Then his monthly salary would become Rs.39,787/- (34597+15%). Since he was having wife and two children, 1/3[rd] has to be deducted towards his personal expenses. So, his balance income would be Rs.26,525/-. The multiplier applicable is 11, as he was aged 54. So, the loss of dependency would have been assessed as Rs.35,01,300/- (26525x12x11). The appellants were already awarded Rs.19,49,550/-. So, they are eligible to get the balance amount of Rs.15,51,750/- as enhanced compensation under the head ‘loss of dependency’. 11. Learned counsel for the 3[rd] respondent pointed out that the award of the Tribunal under various heads exceeds the eligible amount, and while awarding compensation for loss of dependency, rejecting application of split salary and multiplier, the excess amount MACA No.1972 of 2016 7 awarded under various other heads also has to be adjusted. 12. Towards pain and suffering, the Tribunal awarded Rs.15,000/-. This being a death case, the legal heirs were not entitled to get compensation for pain and suffering of the deceased, based on the decision _**Oriental Insurance Company Limited**_ vs. _**Kahlon @ Jasmail Singh Kahlon**_ (2021 SCC Online SC 691). So, Rs.15,000/awarded under the head ‘pain and suffering’ is liable to be deducted. 13. Towards loss of love and affection, the Tribunal awarded Rs.2 lakh and under loss of consortium, the Tribunal awarded Rs.1 lakh. As per _Pranay Sethi’s case_ cited supra, the wife and children of the deceased are entitled to get loss of consortium @ Rs.40,000/- each, which will come to Rs.1,20,000/- in total. So, Rs.1,80,000/- awarded by the Tribunal in excess under the head ‘loss of love and affection’ and ‘loss of consortium’ is liable to be refunded. 14. Towards funeral expenses, the Tribunal awarded Rs.25,000/-. The appellants were entitled to get Rs.15,000/- only and so, they are liable to refund Rs.10,000/-, which was in excess of the eligible amount. 15. Towards loss of estate, the Tribunal awarded Rs.1 lakh. But, going by _Pranay Sethi’s case_ cited supra, the appellants were entitled MACA No.1972 of 2016 8 to get Rs.15,000/- only. So, Rs.85,000/- awarded by the Tribunal is in excess of the eligible amount, and therefore, the appellants are liable to refund that amount. 16. The compensation awarded under other heads needs no interference. |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by**<br>**the Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Amount**<br>**deducted in**<br>**appeal**<br>**(4)**|**Difference to be**<br>**drawn as**<br>**enhanced**<br>**compensation**<br>**(5)**| |---|---|---|---|---| |Loss of<br>dependency|Rs.19,49,550/-|Rs.35,01,300/-|-|Rs.15,51,750/-| |Pain and<br>suffering|Rs.15,000/-|-|Rs.15,000/-|-| |Loss of love<br>and affection/<br>loss of<br>consortium|Rs.3,00,000/-|Rs.1,20,000/-|Rs.1,80,000/-|-| |Funeral<br>expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|-| |Loss of estate|Rs.1,00,000/-|Rs.15,000/-|Rs.85,000/-|**-**| |**Total**|||**Rs.2,90,000/-**|**Rs.15,51,750/-**| |**Enhancement after adjusting excess payment: (1551750-290000)=Rs.12,61,750/-**||||| 17. In the result, the appellants are entitled to receive Rs.12,61,750/- as enhanced compensation, after deducting the excess amount awarded by the Tribunal. MACA No.1972 of 2016 9 The liability of the 3[rd] respondent/insurer to compensate the appellants is not in dispute. The 1[st] appellant is no more. So, the award amount has to be shared equally among appellants 2 and 3. The 3[rd] respondent/insurer is directed to deposit the award amount of Rs.12,61,750/- with interest @ 9% per annum from the date of petition till the date of deposit (except 58 days of delay in filing the appeal), in the Bank Account of the appellants 2 and 3 in equal share, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- ## **SOPHY THOMAS** ## **JUDGE** smp