Sarasamma and others v. Rajan and Abdul Havy and The United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 MACA NO. 2636 OF 2009 ``` ``` AGAINST THE AWARD DATED 12.06.2007 IN O.P(M.V) NO.484/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`- APPELLANTS:`** ``` 1SARASAMMA, W/O.MOHANAN, THANNICKAL VEEDU, ARTHUNKAL P.O., CHERTHALA. 2SHEEJA, D/O. MOHANAN, THANNICKAL VEEDU ARTHUNKAL P.O., CHERTHALA. 3SREEJESH, S/O.MOHANAN THANNICKAL VEEDU ARTHUNKAL P.O., CHERTHALA. 4SREEKANTH, S/O. MOHANAN, THANNICKAL VEEDU ARTHUNKAL P.O., CHERTHALA. BY ADV SRI.T.B.SARASAN ``` ## **`- RESPONDENTS:`** ``` 1RAJAN, S/O.VASUDEVAN, ASRAYA HOUSE, BACK OF VIVEKANANDANAGAR, KARMAL SCHOOL, ERODU SOUTH POLICE STATION LIMT, ERODU SOUTH POST, THAMIL NADU. 2ABDUL HAVY, S/O.ABDUL REHUMAN T.C.ROAD POST, THIRURANGADI,MALAPPURAM. 3THE UNITED INDIA INSURANCE CO.LTD. REPRESENTED BY ITS BRANCH MANAGER,, SURYA COMPLEX, T.B. ROAD, PALAKKAD. BY ADV R3 BY SRI.A.A.MOHAMMED NAZIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2636 of 2009 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 12[th] day of October, 2022 ``` This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Alappuzha (for short 'the Tribunal') on 12.06.2007 in O.P(M.V.) No.484/2002. 2. In the impugned award, the Tribunal has arrived at a sum of Rs.5,80,000/- as compensation and directed the 3[rd] respondent to deposit it with interest. The claimants are legal heirs of one Mr.Mohanan who died due to the injuries sustained in a motor accident occurred near Cherthala Police Station at 5.30 pm on 24.10.2001. Mr.Mohanan was travelling in his scooter through Alappuzha-Ernakulam N.H-47 and was knocked down by a Car bearing registration No.KL-01-J-8686 driven by its driver. Mr.Mohanan fell on the road and sustained injuries. He was rushed to K.V.M Hospital, Cherthala and after undergoing inpatient treatment for 5 days, was shifted to Medical Trust Hospital, Ernakualm where he died on ``` M.A.C.A.No.2636 of 2009 ``` ``` 3 ``` 28.10.2001. The accident was allegedly occurred due to the rash and negligent driving of the Car by its driver. Registered owner and insurer of the Car were also arrayed as 2[nd] and 3[rd] respondents in the Original Petition seeking compensation. Claiming a sum of Rs.12,59,000/- as compensation from the driver, owner and insurer of the Car, jointly and severally, the Original Petition was filed. The Tribunal has awarded Rs.5,80,000/- as compensation. 3. 1[st] and 2[nd] respondents were served with notice in the claim petition but they did not turn up and therefore were declared ex parte. The 3[rd] respondent has filed written statement admitting insurance coverage for the Car at the relevant time of the accident, but contending that the accident was occurred due to the rash and negligent driving of the scooter by the deceased. The quantum claimed as compensation is also disputed for being exorbitant. 4. Before the Tribunal, oral evidence was not adduced by both parties but Exts.A1 to A8 and Ext.B1 respectively were ``` M.A.C.A.No.2636 of 2009 ``` ``` 4 ``` marked. On appreciation of the above evidence, the Tribunal found that the claimants are entitled to get compensation for the death of Mr.Mohanan and that the driver of the Car bearing Registration No.KL-01-J-8686 was responsible for the accident by his rash and negligent driving. Rs.5,80,000/- was arrived at as the compensation payable. The claimants were originally awarded with a sum of Rs.50,000/- as interim compensation and that was directed to be credited in the sum arrived at as the compensation payable. 5. Sri.T.B.Sarasan, the learned counsel for the appellants pointed out that the Tribunal failed to add 30% to the monthly income in consideration of future prospects and deduct 1/4[th] from the sum arrived at in consideration of the amount that would have been incurred to meet the personal expenditure of the deceased, had he been alive. According to him, split multiplier method was adopted by the Tribunal in arriving at the compensation for loss of dependency. The Tribunal had taken ‘5’ as the multiplier for assessing ``` M.A.C.A.No.2636 of 2009 ``` ``` 5 ``` compensation based on salary received by the deceased prior to the retirement and ‘8’ as multiplier for assessing the compensation payable for the post retirement period. According to the learned counsel, the Tribunal went wrong in adopting the split multiplier method. It ought to have taken a single multiplier as 13, based on the age of the deceased at the relevant time of his death. The learned counsel has also pointed out that compensation under the head loss of estate was declined and Rs.3,000/- and Rs.10,000/- respectively were awarded under the heads funeral expenses and loss of consortium. According to him each of the claimants are entitled to get Rs.40,000/- under the head filial consortium and Rs.15,000/- under the head funeral expenses. According to him the claimants are also entitled to get Rs.15,000/- towards loss of estate. 6. The learned counsel for the 3[rd] respondent has contended that the age of the deceased was not proved before the Tribunal. According to him compensation was assessed by ``` M.A.C.A.No.2636 of 2009 ``` ``` 6 ``` the Tribunal properly and any interference is uncalled for. The learned counsel has also contended that the appellants are not entitled to get interest for the enhanced sum for the delay occurred in filing the appeal on hand. According to the learned counsel the appeal was once dismissed for default and got restored belatedly and therefore the appellants are not entitled to get interest for the period taken for restoration of the appeal. 7. Going by the impugned award, this Court has noticed that Rs.3,000/- was granted as compensation under the head funeral expenses and the claim for compensation under the head for loss of estate was declined. In view of **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], the appellants are entitled to get Rs.15,000/- each under the heads funeral expenses and loss of estate. As held by the Apex Court in the above case, for every succeeding three years from 2017, there would be 10% increase in the above sums. Therefore, Rs.16,500/- would be payable under the head funeral expenses as well as loss of estate. Rs.3,000/- ``` M.A.C.A.No.2636 of 2009 ``` ``` 7 ``` having been awarded by the Tribunal for funeral expenses, the appellants would get Rs.13,500/- as compensation additionally. Under the head loss of estate also the appellants are entitled to get Rs.16,500/-. The Tribunal had fixed the monthly income as certified in Ext.A8 marked in evidence. As per Ext.A8, the deceased was allegedly working as a Special Village Officer and was getting Rs.9,969/- as salary. As directed by the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010** **(2) KLT 802 (SC)]** 30% ought to have been added to the monthly income in consideration of future prospects. Deceased Mohanan was survived by his wife and three minor children. Therefore, 1/4[th] must be deducted towards personal expenditure instead of 1/3[rd] stands deducted by the Tribunal. The multiplicand arrived at is Rs.1,16,637.30 The multiplicand when multiplied by the multiplier 13, Rs.15,16,284/- is arrived at. Rs.4,88,000/- is found awarded by the Tribunal. Therefore, Rs.10,28,284/- is payable as compensation additionally. ``` M.A.C.A.No.2636 of 2009 ``` ``` 8 ``` 8. Under the head loss of consortium, the Tribunal has awarded only Rs.10,000/- but in view of **Pranay Sethi** supra 1[st] and 2[nd] appellants are entitled to get Rs.44,000/(Rs.40,000+10% of 40,000) each. Rs.10,000/- each was awarded by the Tribunal under the heads loss of consortium and love and affection and when that amount is adjusted, the additional compensation payable under that head loss of consortium would be Rs.68,000/-. In the reconsideration and reassessment a total sum of Rs.11,26,284/- (Rupees Eleven lakhs twenty six thousand two hundred and eighty four only) is payable as additional compensation. The aforesaid amount will carry interest at the rate of 7.5% per annum from the date of the Original Petition till date of realisation. The 3[rd] respondent insurer shall pay the sum arrived at as additional compensation with interest and the amount awarded originally as compensation with interest (if not already paid), within a period of two months from the date of receipt of a copy of this judgment. The appellants/claimants ``` 9 ``` ## **`M.A.C.A.No.2636 of 2009`** are not entitled to get interest for 371 days of delay occurred in filing the appeal as directed by order passed by this Court in C.M.Application No.02/2009 on 15.09.2021. The appellants/claimants are also not entitled to get interest for the additional sum found payable for a period from 09.11.2021 till 01.04.2022 during which this appeal stands dismissed for default. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB