Omana P.K. and others v. Baiju V. and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
K. Ramakrishnan
Judgment Date: 2013-11-20
Court Decision / Holding: Appeal disposed of with modification of the impugned award; enhanced compensation by Rs. 2,02,881 over and above the Tribunal’s award; interest at 9% per annum from the date of petition till payment; insurers directed to deposit the enhanced amount within two months.
Final Disposition: Disposed of by modification of the award

Parties to the Case

Appellants / Petitioners

Omana P.K.
HEMA G. KRISHNAN
HEMANTH G. KRISHNAN

Respondents

Baiju V.
Bhaskaran M.K.
National Insurance Company Ltd.
United Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Shaji P. Chaly
• Smt. K.S. Sumitha
• Sri. R. Sanjith
• Smt. Lijitta G. Mathew

Counsels for Respondents

• Sri. Rajan P. Kaliyath

Case Synopsis & Summary

Omana P.K., wife of the deceased Gopalakrishnan, and her children Hema G. Krishnan and Hemanth G. Krishnan, preferred MACA No. 933 of 2011 challenging the Motor Accidents Claims Tribunal, Ernakulam award in OP(MV) No. 1736/2004 for death arising from a road accident caused by respondents 1 and 2. The Tribunal awarded Rs 13,20,000 under heads including loss of dependency, transportation, loss of estate, funeral expenses, and nominal sums for pain and suffering and love/affection. The appellants contended that the award was too meagre and failed to apply the Sarla Verma guidelines, notably the 30% future prospects for a salaried earner and the appropriate tax deduction, and that the multiplier should be recomputed given the deceased’s age of 42. They also criticized low compensation for loss of love and affection and loss of consortium, especially where minor children and a mentally retarded child were involved. The insurer urged upholding the Tribunal’s approach, arguing the multiplier of 15 was favorable and that Sarla Verma’s doctrine would, if applied, increase the award only in the appellants’ favor, not against it. The High Court found merit in applying Sarla Verma guidelines, indicating the correct multiplier for a 42-year-old should be 14 and requiring 30% future prospects with a 20% income tax deduction. It enhanced loss of consortium (Rs.40,000), loss of love and affection for the minor child (Rs.30,000), pain and suffering (Rs.10,000), and loss of estate (Rs.10,000), and directed payment of an additional Rs.2,02,881 with 9% interest, to be deposited within two months. The appeal was disposed of with these modifications.

Legal Doctrines & Maxims

Sarla Verma v. Delhi Transport Corporation doctrine on 30% future prospects and 20% tax deduction in computing compensation; use of multiplier in dependency calculations.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants submit that the Tribunal’s quantum is on the lower side and fails to apply the Sarla Verma guidelines, particularly the 30% future prospects for a salaried earner and the 20% deduction for income tax when tax details are not shown. They contend the 42-year-old deceased warrants a different multiplier and argue for enhanced compensation under all heads including loss of dependency, loss of love and affection, pain and suffering, and loss of estate, citing the needs of the minor child and a mentally challenged child.

Contentions of Respondents

The respondents’ counsel maintains that the Tribunal examined all relevant factors and that its award, including the multiplier chosen, is just and proper. He asserts that applying Sarla Verma’s 30% future prospects and the 20% tax deduction would not reduce the amount in a way adverse to the insured and that any apparent error would be in appellants’ favor, not against them.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	Court follows Sarla Verma principles, applying 30% future prospects and 20% tax deduction in recalculating compensation.

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 K.RAMAKRISHNAN** **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935** ## **MACA.No. 933 of 2011 ( )** ## **------------------------OP(MV) NO. 1736/2004 OF ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 20/10/2010** **------------------** ## **PETITIONERS/CLAIMANTS :** **-----------------------------------------** **1. OMANA P.K., W/O. LATE GOPALKRISHNAN, AGED 45 YEARS, B-42, TELECOM QUARTER PANAMPILLY, NAGAR, KOCHI-36** **AT PRESENT RESIDING AT PANAMPILLY NAGAR, KOCHI-36.** ## **2. HEMA G. KRISHNAN,** **D/O.LATE GOPALAKRISHNAN** **AGED 24 YEARS, B-42, RELECOM QUARTER PANAMPILLY NAGAR, KOCHI-36 MOTHER AND REPRESENTED BY GUARDIAN OMANA P.K.** ## **3. HEMANTH G. KRISHNAN,** **S/O. LATE GOPALAKRISHNAN, AGED 20 YEARS, B-42 TELECOM QUARTER, PANAMPILLY NAGAR, KOCHI-36. MOTHER AND REPRESENTED BY GUARDIAN OMANA P.K** **BY ADVS.SRI.SHAJI P .CHALY SMT.K.S.SUMITHA SRI.R.SANJITH SMT.LIJITTA G. MATHEW** ## **RESPONDENTS / RESPONDENTS :** **---------------------------------------------------** **1. BAIJU V., S/O. VISWAMBARAN, ILLATHUVELI VEEDU, WARD NO.3, PALLIPURAM P.O., PALLIPURAM PANCHAYATH CHERTHALA - 688 541.** **2. BHASKARAN M.K., 3/270, MANJANAVELI, THYKKATTUSSERY P.O.,, CHERTHALA TALUK-688 528.** **...2/-** **MACA.No. 933 of 2011 ( ) -2-** **3. NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY THE DIVISIONAL MANAGER ERNAKULAM-682 035.** **POLICY NO.501600/31/03/6313414.** ## **4. UNITED INSURANCE COMPANY LTD.,** - **REPRESENTED BY THE DIVISIONAL MANAGER ERNAKULAM, KOCHI - 682 011** - **POLICY NO. 101502/31/03/10471.** ## **R3 BY ADV. SRI.RAJAN P. KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ. ----------------------------M.A.C.A. No.933 of 2011** ## **================= Dated this the 20[th] day of November, 2013** ## **J U D G M E N T -------------------** ## **S. Siri Jagan, J** . The appellants are the wife and children of deceased Gopalakrishnan. Gopalakrishnan died in an accident caused by the negligent driving of a vehicle owned and driven by respondents 1 & 2 and insured with the 3[rd] respondent. The appellants filed O.P.(M.V.) No.1736/2004 before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of their bread winner. 2. The Tribunal, after finding negligence on the part of the driver of the vehicle awarded compensation under various heads as follows: |**Head**|**Amount** **awarded**| |---|---| |Compensation for loss of dependency and estate|1320000| |Transportation expenses|2000| |Loss of estate|5000| |Funeral expenses|3000| |Damages to clothing and articles|0| |Medical expenses|0| M.A.C.A. No.933 of 2011 **-2-** |**Head**|**Amount** **awarded**| |---|---| |For pain and sufferings|5000| |Compensation for loss of love and affection|15000| |Loss of consortium|10000| |Total|1360000| |Claim is limited to Rs.30,00,000/-|| 3. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal claiming enhanced compensation. The accident was on 4.5.2004 and the deceased was 42 years old at that time. He was an employee of the B.S.N.L., drawing a monthly salary of Rs.12,602/-. The Tribunal, after deducting a probable amount towards income tax fixed the monthly income as Rs.11,000/-. Taking the multiplier as 15 and deducting 1/3[rd] towards personal expenses of the deceased, the Tribunal awarded a total compensation of Rs.13,20,000/- towards loss of dependency. Appellants contend that this is on the lower side because as per the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , the Tribunal ought have added M.A.C.A. No.933 of 2011 **-3-** 30% for future prospects of the deceased, which the Tribunal had not done. It is submitted that at the time of death of her husband, the 1[st] appellant was aged only 38 years, despite which the Tribunal awarded only Rs.10,000/- towards loss of consortium. Although the 2[nd] appellant is a mentally retarded child and the 3[rd] respondent was also a minor at the time of accident, the Tribunal awarded only Rs.15,000/- towards loss of love and affection, which is also on the lower side. It is submitted that the compensation awarded for pain and sufferings and loss of estate are also on the lower side. The appellants seek enhancement under all heads. 4. On the other hand, the learned counsel for the insurance company submits that the Tribunal has considered every aspect of the matter in the right perspective and awarded just and proper compensation. He particularly points out that for a person aged 42 years, the multiplier fixed by the Hon'ble Supreme Court in Sarla Verma's case (supra) is only 14, whereas the Tribunal has M.A.C.A. No.933 of 2011 **-4-** adopted 15. Therefore, according to him, if at all the Tribunal has erred, that error is only in favour of the appellants and not against them. He therefore argues for sustaining the compensation fixed by the Tribunal. 5. We have considered the rival contentions in detail. 6. In the decision in Sarla Verma's case (supra), the Hon'ble Supreme Court has held that in the case of salaried employees the actual salary drawn should be increased by 30% for future prospects. But at the same time the Hon'ble Supreme Court held that if the salary certificate produced does not show the income tax deducted, 20% has to be deducted towards income tax as well. As rightly pointed out by the counsel for the insurance company the multiplier applicable is only 14 and not 15. If the compensation for loss of dependency is recalculated on the basis of the above inputs, the total amount of compensation for loss of dependency would be Rs.14,67,881/- (12602 x 12 x 14 x 2/3 x 130% x 80%) instead of Rs.13,20,000/-. The difference M.A.C.A. No.933 of 2011 **-5-** ## would be Rs.1,47,881/-. 7. Since the 1[st] appellant was only 38 years old at the time of death of her husband and there was practically no prospects of a remarriage, we are inclined to enhance the compensation for loss of consortium to Rs.40,000/- from Rs.10,000/-. Likewise, for loss of love and affection of minor children, one of whom is a mentally retarded person, we are inclined to fix the same as Rs.30,000/- instead of Rs.15,000/-. The compensation for pain and sufferings of the deceased is enhanced to Rs.10,000/- and compensation for loss of estate is also enhanced to Rs.10,000/-. We are not inclined to enhance compensation under other heads since we are of opinion that just and proper compensation has been awarded under the other heads. Consequently the appellants would be entitled to get an additional compensation of Rs.2,02,881/- over and above what has been awarded by the Tribunal. This amount would carry interest at the rate of 9% per annum from the date of the claim petition till date of payment. The 3[rd] respondent M.A.C.A. No.933 of 2011 **-6-** insurance company is directed to deposit that amount also within two months from today. With the above modification of the impugned award, the appeal is disposed of. Sd/- ## **S.SIRI JAGAN, JUDGE** Sd/- **K.RAMAKRISHNAN, JUDGE** Shg/