High Court of KeralaDivision Bench2015-11-30Appeal disposed of; enhanced compensation to ₹2...

Saraswathy Amma and Others v. K.V. John, Sukumaran and The Oriental Insurance Co. Ltd. (MACA No. 1760 of 2007) against the Award in OPMV 1396/2002, Thrissur

Case / Petition Number:MACA.No. 1760 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.R. Ramachandra Menon
P. Bhavadasan
Judgment Date: 2015-11-30
Court Decision / Holding: The High Court allowed the appeal in part, reworking the compensation by treating pension incomes as part of the multiplicand, applying a 50% contribution by the first appellant, and using a multiplier of 5 appropriate to the deceased’s age. It fixed the loss of consortium at ₹50,000 for the first claimant and ₹40,000 thereafter, and allocated ₹1,00,000 for loss of love and affection, reducing the balance to ₹90,000 after credit for amounts already awarded. It additionally awarded ₹5,000 for funeral and ₹5,000 for loss of estate. The total compromise amount is ₹2,57,000, to be deposited by the insurer within one month, with interest at 9% per annum from 18.06.2002. The appeal was disposed of accordingly.
Final Disposition: Appeal disposed of; enhanced compensation to ₹2,57,000; 9% interest from 18.06.2002; insurer to deposit within one month.

Parties to the Case

Appellants / Petitioners

Saraswathy Amma
P.Vasanthakumar
P.Vijayakumar
P.Sajeevkumar
P.Ananthkumar
P.Anilkumar

Respondents

K.V.John
Sukumaran
The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.V. Chandramohan

Counsels for Respondents

• Sri. Francis Joseph Kurisinkal
• Sri. VPK. Panicker

Case Synopsis & Summary

This Motor Accidents Claims Appeal challenges an award made by the Motor Accidents Claims Tribunal, Thrissur, for the death of a man who was involved in a scooter- tempo van collision on 29.12.2001. The appellants, led by Saraswathy Amma, alleged that the Tribunal under-compensated the dependents by adopting a low monthly income and an inadequate multiplier, failing to properly account for other sources of the deceased’s income (army pension, postal pension, private software employment) and for the age-related diminution of earning capacity. The Tribunal found the negligence of the tempo van driver to be the proximate cause and awarded compensation across heads including treatment, funeral, loss of dependency, loss of estate, and non-pecuniary damages. The appellants invoked precedents such as Vimal Kanwar to argue that pension incomes should form part of the multiplicand and urged a higher multiplier given the deceased’s age. The High Court, while noting these submissions, reworked the compensation by adjusting monthly income, adopting a different share of dependence, applying a multiplier of 5 in light of the age, and revising losses for consortium and love/affection. The court ultimately held that enhanced compensation was warranted and directed the insurer to deposit ₹2,57,000 with 9% interest from 18.06.2002, within one month.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal erred by using a notional monthly income of ₹2,250 instead of the combined earnings from the deceased’s pension streams and private employment, as evidenced by Exts. A6, A7, and A8, and that pension income should be included in the multiplicand per Vimal Kanwar v. Kishore Dan. They argued that at 68 years, the multiplier should reflect reduced earning capacity, and that dependency should be computed with 50% of income for the sole dependent, with appropriate adjustments for personal expenses. They also pressed for higher awards for loss of consortium and love and affection, and for better compensation for loss of estate, funeral, and other heads, given his family’s status and age.

Contentions of Respondents

The Insurance Company and the respondent-driver’s side urged keeping the Tribunal’s findings intact, arguing that the evidence justified the original sums and that the accident’s facts and the relevant policy considerations should constrain the enhancement. They relied on the Tribunal’s method of calculating dependency and the factual basis for the maintenance of the present award, while noting that pension income could be treated as part of the earning capacity but should not excessively inflate the multiplicand beyond reasonableness.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Vimal Kanwar v. Kishore Dan	2013 (2) KLT 748	Positive	Court endorses the principle that pension incomes should be included in the multiplicand, as held in Vimal Kanwar.
Rajesh and others v. Rajbir Singh and others	2013 (3) KLT 89	Distinguished	Court notes Rajesh may award higher sums for consortium and love/affection but distinguishes it on facts (age, year) with reference to Valsamma.
Valsamma v. Binu Jose	2014 (1) KLT 10	Positive	Court relies on age-based adjustment for loss of consortium and love and affection as per Valsamma.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 30TH DAY OF NOVEMBER 2015/9TH AGRAHAYANA, 1937** ## **MACA.No. 1760 of 2007 ( )** **-------------------------AGAINST THE AWARD IN OPMV 1396/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 17.10.2006** ## **APPELLANT(S)/APPELLANTS/PETITIONERS:** **----------------------------------------------------------------------** ## **1. SARASWATHY AMMA,** - **W/O.LATE NARAYANA MENON, PANIKKAVEETTIL HOUSE, KURUMAL P.O.VELOOR, VIA VADAKKANCHERRY., PINCODE 680 601.** **2. P.VASANTHAKUMAR, S/O.SARASWATHY AMMA, DO DO.** **3. P.VIJAYAKUMAR, S/O.SARASWATHY AMMA, DO DO.** ## **4. P.SAJEEVKUMAR, S/O.SARASWATHY AMMA,** - **DO. DO.** ## **5. P.ANANTHKUMAR,S/O.SARASWATHY AMMA,** - **DO. DO.** **6. P.ANILKUMAR, S/O.SARASWATHY AMMA, DO. DO.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. K.V.JOHN, S/O.VARGHESE, KORATTY HOUSE,** - **P.O.THANGALLUR, THRISSUR DISTRICT.** **2. SUKUMARAN, S/O.KARAPPAN, KOLAMETH HOUSE, PERAMANGALAM, P.O.PERAMANGALAM THRISSUR DISTRICT.** ## **3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE: THRISSUR.** **R1 BY ADV. SRI.FRANCIS JOSEPH KURISINKAL R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.R. RAMACHANDRA MENON & P.BHAVADASAN, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1760 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th ] day of November, 2015 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. The claimants, who lost the husband of the first appellant and father of the appellants 2 to 6, are before this Court seek for enhancement of the compensation awarded in respect of death of the said person contending that only an abysmally low amount has been awarded by the Tribunal. 2. The accident occurred on 29.12.2001. The deceased was riding a scooter when he was knocked down by a tempo van owned driven and insured by the second respondent respondent before the Tribunal. As a matter of fact, the tempo van was coming from a pocket road and it was only because of the negligence on the part of the driver of the van that the accident was resulted. This was sought to be compensated by filing the claim petition before the Tribunal. ## **M.A.C.A. No. 1760 of 2007** **-2-** 3. It was contended by the claimants that the deceased was originally serving the Indian Army and after retirement, he got re-employment as Assistant Postmaster. On attaining the age superannuation, he came out from the service and was having a private employment drawing a salary of 3,000/- per month in a software company as₹ disclosed from Ext.A6. The deceased was also generating income by pension from both the streams i.e. from the Indian Army and also from the Postal Department. The total income in this regard is stated as 6,900/- per month. ₹ 4. The evidence adduced before the Tribunal consists of the oral testimony of PW1, who is the 5[th] appellant herein, and documents produced as Exts.A1 to A13. Based on the evidence adduced, the Tribunal held that the accident was only because of the negligence on the part of the driver of the tempo van. 5. The amounts awarded by the Tribunal under various heads are as given below: **-3-** ## **M.A.C.A. No. 1760 of 2007** |1|Expense for transportation|-|1,000.00| |---|---|---|---| |2|Damage to clothing and articles|-|1,000.00| |3|Expense for treatment|-|33,100.00| |4|Expense for by-stander|-|200.00| |5|Expense for funeral|-|5,000.00| |6|Compensation for pain and suffering|-|20,000.00| |7|'' loss of consortium|-|10,000.00| |8|'' love and affection|-|10,000.00| |9|loss of dependency|-|90,000.00| ||||**1,70,300.00**| The said amount is ordered to be satisfied with interest at the rate of 7% per annum from the date of petition i.e. 18.06.2002 which is sought to be enhanced by way of this appeal. 6. Heard the learned counsel for the appellants as well as the learned counsel appearing for the Insurance Company. The learned counsel appearing for the appellants points out that, despite proving the income from different sources based on Exts. A6, A7 and A8, the Tribunal has reckoned only notional figure of 2,250/- as the monthly₹ income, absolutely without any rhyme or reason. The ## **M.A.C.A. No. 1760 of 2007** **-4-** learned counsel also placed reliance on the decision rendered by the Apex Court reported in **Vimal Kanwar** v. **Kishore Dan** (2013 (2) KLT 748) which holds that income obtainable by way of pension, family pension etc. is not liable to be deducted for fixing the multiplicand. 7. We find considerable force in the said submission. The multiplier adopted by the Tribunal based on the age of the deceased (68 years) is 'five'. The first appellant/the first claimant herself was more than 65 years at the time of accident and the other claimants are the five sons of the first claimant/first appellant. The amount awarded by the Tribunal towards loss of dependency requires to be modified by reckoning the monthly income as contended by the appellant. However, it has to be noted that the first appellant/first claimant alone could be deemed as the dependent and as such, only 50% of the monthly income could have been deemed as the contribution to the family whereas, the Tribunal has reckoned 2/3[rd] as contribution ## **M.A.C.A. No. 1760 of 2007** **-5-** deducting only 1/3[rd] towards the personal expenses. Reworking the compensation as above, the amount comes to 6,900/- x 12 x 50/100 x 5= 2,07,000/-₹ ₹ 8. After giving credit to the sum of 90,000/- awarded₹ by the Tribunal, the balance comes to **₹ 1,17,000/-** . 9. The Tribunal has awarded only a sum of 5,000/-₹ towards the funeral expenses. Considering the facts and circumstances prevailing as on the date of accident, we award a further compensation of 5,000/- under this head.₹ Nothing has been awarded by the Tribunal towards loss of estate. We award notional amount of 5,000/- under this₹ head as well. The loss of consortium satisfied to the first appellant/the first claimant is only to an extent of 10,000/-.₹ We are aware of the decision rendered by the Supreme Court in **Rajesh and others** v. **Rajbir Singh and others** (2013 (3) KLT 89) that loss of consortium payable and the loss of love and affection are to be compensated at the rate of 1 lakh each. But the accident occurred in the said case₹ ## **M.A.C.A. No. 1760 of 2007** **-6-** was in the year 2007 and the age of the parties were also different. A Division Bench of this Court had occasion to consider the matter with reference to the above decision and it has been held in **Valsamma v. Binu Jose** (2014 (1) KLT 10) that the compensation for loss of consortium as well as loss of love and affection have to be fixed also with reference to the age of the deceased and also the age of the claimants. In the instant case, the deceased was admittedly more than 68 years and the first claimant was more than 65 years. As such, the loss of consortium payable to the first appellant stands fixed as 50,000/-, we award a balance of₹ ₹ **40,000/-** under this head. 10. Coming to the compensation for loss of love and affection, we find that all five sons; the claimants 2 to 6 before the Tribunal who are the appellants 2 to 6 before this Court, were all major persons having independent means of their livelihood. But it cannot be said that they are not entitled to have the loss of love and affection to be **-7-** ## **M.A.C.A. No. 1760 of 2007** compensated. We find it appropriate to grant a sum of 1₹ lakh under this head and after giving credit to the sum of ₹10,000/- awarded by the Tribunal, the balance comes to ₹ **90,000/-** . The total balance compensation payable under all the relevant heads is ₹ **2,57,000/-** which shall be satisfied with interest at the rate of 9% per annum from the date of petition. Since the policy is admitted, we direct the Insurance Company to deposit the said amount within one month. The appeal stands disposed of accordingly. ## Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **P.BHAVADASAN JUDGE** ds //True copy// P.A. to Judge