P.V. Jayakrishnan and P.K. Sobhana v. Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938 MACA.No. 1710 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 525/2015 of M.A.C.T., TALIPARAMBA DATED 14-12-2015 APPELLANT(S)/PETITIONERS: ----------------------------------- 1. P.V.JAYAKRISHNAN S/O. KRISHNAN NAIR, AGED 63 YEARS, KRISHNA, 651, NEAR PATEL ROAD, PUZHATHI, P.O.CHIRAKKAL, KANNUR-670011. 2. P.K.SOBHANA D/O. CHANDU NAIR, AGED 55 YEARS, KRISHNA, 651, NEAR PATEL ROAD, PUZHATHI, P.O.CHIRAKKAL, KANNUR-670011. BY ADVS.SRI.A.K.SRINIVASAN SRI.JIMMY GEORGE SRI.A.S.BENOY RESPONDENT(S)/RESPONDENT NO.3: ----------------------------------------- M/S.ORIENTAL INSURANCE CO. LTD. MARINE SHOPPING CENTRE, NATIONAL HIGHWAY, TALIPARAMBA, KANNUR-670141. BY ADV. SRI.N.S.NAJEEB BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-09-2016 ALONG WITH CROSS OBJECTION 92/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.1710/2016 ## APPENDIX PETITIONERS' EXHIBITS: ANNEXURE A-ISSUED BY Dr.ANAND K. (FAMILY MEDICINE), ASSISTANT SURGEON, KERALA HEALTH SERVICE DEPARTMENT DATED 10.5.2016. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ==========================** ## **M.A.C.A. No.1710 OF 2016 & CROSS OBJECTION No.92 OF 2016** **==========================** Dated this the 19[th] day of September, 2016 ## **JUDGMENT** _Ravikumar, J._ The claimants before the Tribunal come up in appeal on being dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Thaliparamba as per award dated 14.12.2015 in O.P.(MV).No.525 of 2015. The appellants are the parents of one Jithin who died in a motor vehicle accident that occurred on 7.5.2013. On that fateful day, he was travelling as a pillion rider on a motor cycle bearing Reg.No.KL-05-H-6143 from Dharmasala to Parassinikadavu. When he reached Dharmasala, a goods carriage bearing Reg.No.KL-59-E-5364 driven by the second **M.A.C.A.1710/2016 & C.O.92/2016** 2 respondent, firstly hit against a Nano car bearing Reg.No.KL-13-Z6480 and then dashed against the said motor cycle. Consequently, Jithin sustained grievous injuries. He was taken to Pariyaram Medical College Hospital from where he breathed his last. It is in the said circumstances that the above mentioned claim petition was filed claiming a total compensation of `6,00,000/-. 2.Before the Tribunal, both the parties did not adduce any oral evidence. On the side of the appellants, Exts.A1 to A7 were got marked. No documentary evidence was also adduced by the respondents. The Tribunal, on consideration of the rival contentions and evidence on record, passed the impugned award whereby and whereunder an amount of `6,14,000/- was granted with interest @ 9% per annum from the date of the petition till realisation. It is dissatisfied with the said quantum of compensation that the captioned appeal has been preferred. **M.A.C.A.1710/2016 & C.O.92/2016** 3 3.We have heard the learned counsel for the appellants and also the learned counsel appearing for the respondent- Insurance company. 4.Obviously, there is no dispute regarding the accident, the cause of the accident as negligence from the part of the second respondent who drove the offending vehicle at the time of the accident and the insurance coverage of the said offending vehicle. In short, the question to be considered is whether the appellants are entitled to get enhancement of compensation. 5.The learned counsel for the appellants contended that the Tribunal went wrong in disregarding the fact that the deceased Jithin was a M.B.A student and was aged only 22 years at the time of the accident, while fixing the monthly income. It is submitted by the learned counsel that the Tribunal treated Jithin only as a student and thereby, as a non-earning person and consequently, fixed the monthly income relying on second schedule to the M.V.Act. Accordingly, the **M.A.C.A.1710/2016 & C.O.92/2016** 4 annual income of `30,000/- was taken as notional income. It is the erroneous fixation of the monthly income as above that deprived the appellants 'just compensation', it is submitted. Obviously, there is no dispute regarding the multiplier adopted by the Tribunal. The multiplier was adopted with reference to the age of the deceased and it was correctly taken as 18. The learned counsel further contended that taking note of the fact that the deceased Jithin was a M.B.A student and was aged 22 years, the Tribunal ought to have made an addition to the income reckoning the future prospects. It is further contended that though an amount of `5,000/- was claimed towards medical expenses, the Tribunal declined to grant any amount solely on the ground that no bills were produced in support of such claim. It is also contended that immediately after the accident, the deceased Jithin was taken to Pariyaram Medical College Hospital and it is after about 3 hours since the accident that he breathed his last. Despite such facts, the Tribunal granted no amount under the head 'pain and suffering'. It is in the said circumstances that the learned counsel contended that the **M.A.C.A.1710/2016 & C.O.92/2016** 5 Tribunal had deprived just compensation. 6.Per contra, the learned counsel for the respondent contended that the Tribunal cannot be found fault with, in looking into the second schedule to the M.V.Act for the purpose of fixing the monthly income as admittedly the deceased was only a student during the relevant point of time. It is further contended that since he was a student, the Tribunal has rightly treated him as a non-earning person and took the annual income as `30,000/- notionally. The learned counsel further contended that ignoring the indisputable position that deceased Jithin was a bachelor, the Tribunal granted an amount of `1,00,000/- towards loss of consortium. It is the further contention that in total disregard to the dictum laid down in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the Tribunal deducted only ⅓ of the income instead of deducting 50% of the income, towards personal expenses which he would have incurred had he been alive. In fact, raising such contentions, the respondent has filed cross objection No.92 of 2016 in this appeal. **M.A.C.A.1710/2016 & C.O.92/2016** 6 7.In the light of the rival contentions as mentioned hereinbefore, the first question to be considered is whether the fixation of the monthly income by the Tribunal for the purpose of computing compensation under the head loss of dependency invites interference. A bare perusal of the impugned award would reveal that the Tribunal took note of the fact that the deceased Jithin was a student, aged 22 years and after treating him as a non-earning person, fixed the monthly income for calculation purpose with reference to the second schedule to the M.V.Act. In the case of a M.B.A student aged 22 years, the question is whether the Tribunal is justified in fixing the monthly income as `2,500/- notionally, for calculation purpose. It is to be noted that even in the case of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income for calculation purpose as `4,500/-. It is also a fact that the Tribunal had failed to reckon the future prospects. Taking into account the said circumstances, we have no hesitation to hold that the Tribunal went **M.A.C.A.1710/2016 & C.O.92/2016** 7 wrong in fixing the monthly income only as `2,500/- though the Tribunal is justified in taking the monthly income notionally. Taking note of the age of the deceased Jithin on the date of the accident viz., 22 years and the fact that the accident occurred on 7.5.2013, we are of the view that it is only proper to fix the monthly income of the deceased Jithin for calculation purpose as `8,000/-. Taking note of the future prospects of a M.B.A student, we are of the view that it is only proper to make an addition of 30% of the income thus fixed. In short, we are inclined to fix the monthly income for calculation ` purpose as 10,400/- While considering the question regarding the adequacy of the compensation granted under the head 'loss of dependency', the contentions raised by the respondent regarding the deviation from the dictum laid down by the Apex Court in regard to the deduction to be made towards personal expenses as also the entitlement to grant compensation under the head loss of consortium have to be taken into account. The said contentions taken up by the respondent cannot be said to be without any merit. In **Sarla Verma** 's **M.A.C.A.1710/2016 & C.O.92/2016** 8 case, the Apex court held that in the case of a bachelor, 50% of the income has to be deducted towards personal expenses of the deceased, which he would have incurred had he been alive. In the light of the dictum laid down in the said decision, it can only be said that the Tribunal went wrong in deducting only ⅓ of the income towards personal expenses of the deceased instead of 50% of the said income. In such circumstances, it is held going by the decision in **Sarla Verma** 's case that 50% of the income has to be deducted towards personal expenses of the deceased while fixing the monthly income for calculation purpose. Evidently, as per the impugned judgment, for the purpose of fixing compensation for deciding the question of entitlement of compensation under the head loss of consortium, the Tribunal relied on **Rajesh and others v. Rajbir Singh and others [2013 ACJ 1403].** Going by the said decision and also of the decision in **Sarla Verma** 's case, only the surviving spouse is entitled to get compensation for loss of consortium. At the same time, it is to be **M.A.C.A.1710/2016 & C.O.92/2016** 9 noted that the parents are certainly entitled to get compensation under the head loss of 'love and affection'. In such circumstances, it can only be said that the Tribunal went wrong in granting an amount of `1,00,000/- under the head loss of consortium relying on **Rajesh** 's case (supra). Towards medical expenses, the appellants claimed only an amount of `5,000/-. True that they have not produced any bill in support of the said contention. It is not disputed before us that immediately after the accident, the deceased Jithin was taken to the hospital. In fact, he was taken to Pariyaram Medical College Hospital and he breathed his last from there. In such circumstances, there cannot be any doubt with respect to the fact that he must have been given treatment in the meanwhile and the appellant must have incurred some expenses. Taking into account the fact that the appellant claimed only `5,000/-, we are of the view that despite the non-production of the bills the amount claimed has to be granted. Accordingly, an amount of `5,000/- is granted towards medical expenses. Towards pain and suffering, the appellants claimed an **M.A.C.A.1710/2016 & C.O.92/2016** 10 amount of `1,00,000/- and the Tribunal did not grant any amount thereunder. The death of Jithin occurred on the very same day of the accident. It is a fact that from the place of the accident he was taken to hospital and succumbed to the injuries in the hospital. He must have endured enormous pain owing to the injuries sustained in the accident. In such circumstances, we are inclined to grant `10,000/- under that head. In the result, ## M.A.C.A.No.1710/2016 This appeal is allowed. Additional compensation payable to the appellants is assessed as hereunder:- |**Head of claim**|**Amount awarded in the appeal**| |---|---| |Loss of dependency<br>(10400x12x18/2 - 360000)|763200| |Pain and suffering|10000| |Medical expenses|5000| |**Total**|778200<br>=======| **M.A.C.A.1710/2016 & C.O.92/2016** 11 Deducting `1,00,000/- awarded towards loss of consortium, the appellant would be entitled to get an additional compensation of `6,78,200/-. The additional compensation will carry 8% interest from the date of the petition till realisation. The respondent-insurance company is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. No order as to costs. ## **Cross Objection No.92/2016** The judgment and award dated 14.12.2015 in O.P.(MV).No.525 of 2015 to the extent the Tribunal granted an amount of `1,00,000/towards loss of consortium is set aside. In the light of the decision of the Apex Court in **Sarla Verma** 's case (supra) and taking into account the indisputable fact that the deceased was a bachelor, it is ordered that instead of making ⅓ deduction towards personal expenses, 50% of the income has to be deducted. In fact, we have assessed the additional compensation in the appeal reckoning the aforesaid aspects. **M.A.C.A.1710/2016 & C.O.92/2016** 12 In such circumstances, the cross objection is allowed to the above extent. **Sd/C.T. RAVIKUMAR** **(JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1710/2016 & C.O.92/2016** 13 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** ## **M.A.C.A.1710/2016 & C.O.92/2016** 14