Savithri V et al. v. Ravi M.A., Bijesh K.G., and National Insurance Co. Ltd.

**MACA.No.1538 OF 2018** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942 MACA.No.1538 OF 2018(D)** **AGAINST THE AWARD IN OPMV 2115/2015 DATED 28-11-2017 OF .ADDL MOTOR ACCIDENT CLAIMS TRIBUNAL ,EKM** ## **APPELLANTS/CLAIMANTS** **1 SAVITHRI V AGED 41 YEARS 41 YEARS, W/O.LATE ENCAPPU K.M. @ MADHAVAN, KOZHIMULLU HOUSE, KOTTODY P.O., KALLAR, KASARAGOD DISTRICT AND NOW RESIDING AT N.G.O. QUARTERS NO.TA/7/79,KAKKANADU, THRIKKAKARA, ERNAKULAM. 2 ARJUN K.M. AGED 18 YEARS 18 YEARS, S/O.LATE ENCAPPU K.M. @ MADHAVAN,KOZHIMULLU HOUSE, KOTTODY P.O., KALLAR,KASARAGOD DISTRICT ANDNOW RESIDING AT N.G.O. QUARTERS NO.TA/7/79,KAKKANADU, THRIKKAKARA, ERNAKULAM.** **3 MINOR ANJU K.M. AGED 15 YEARS, D/O.LATE ENCAPPU K.M. @ MADHAVAN,KOZHIMULLU HOUSE, KOTTODY P.O., KALLAR,KASARAGOD DISTRICT ANDNOW RESIDING AT N.G.O. QUARTERS NO.TA/7/79,KAKKANADU, THRIKKAKARA, ERNAKULAM, REPRESENTED BY HER NEXT FRIEND AND MOTHER SAVITHRI V.** **4 CHOMU BHAI AGED 83 YEARS, W/O.LATE MAYILA NAIK, KOZHIMULLA HOUSE, KOTTODY P.O., KOLLAR,KASARAGOD DISTRICT.** **BY ADVS. SRI.PUSHPARAJAN KODOTH** **MACA.No.1538 OF 2018** **2** ## **SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON** ## **RESPONDENTS/RESPONDENTS:** - **1 RAVI M.A MEPPILLY HOUSE, CHITTANAD, KUMARAPURAM P.O.,ERNAKULAM DISTRICT, PIN-683565.** - **2 BIJESH K.G. KANAKAPPILLY HOUSE, VALAMBOOR, NORTH MAZHUVANNOOR P.O., ERNAKULAM DISTRICT, PIN-686 669.** - **3 NATIONAL INSURANCE CO. LTD. P M C IX/36A, A M ROAD, PERUMBAVOOR, PIN-683 542.** **R3 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1538 OF 2018** **3** ## **JUDGMENT** The appellants were the claimants in O.P (MV) No.2115/2015 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents in the claim petition. The parties are for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as “Act”) claiming compensation on account of the death of Sri.Encappu (deceased) on 9.10.2014. 3. The concise case of the petitioners in the claim petition, relevant for the determination of the appeal, is that on 9.10.2014, while the deceased was riding a motorcycle bearing Reg. No.KL-7/BW – 7361 through the Ernakulam – Kakkanad road, he was **MACA.No.1538 OF 2018** **4** knocked down by a bus bearing Reg. No.KL-40/2769 (offending vehicle) driven by the 2[nd] respondent. The offending vehicle was driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the offending vehicle and the 3[rd] respondent is the Insurance Company. Therefore, the respondents were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.67,00,000/-. 4. The respondents 1 and 2 were absent and were set ex parte. 5. The 3[rd ] respondent - the Insurance Company of the offending vehicle – filed a written statement, inter alia, admitting that the offending vehicle was insured with the 3[rd] respondent. However, the 3[rd] respondent denied the allegation of rashness and negligence on the part of the 2[nd] respondent. The amount of compensation claimed was excessive and **MACA.No.1538 OF 2018** **5** exorbitant. 6. The petitioners marked Exts. A1 to A11 in evidence. Neither party adduced any oral evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3[rd] respondent to pay an amount of Rs.13,20,923/- with interest at the rate of 9% per annum from the date of petition till the date of realisation. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners filed the appeal. 9. This Court by judgment dated 20.2.2019 allowed the appeal by enhancing the compensation to Rs.22,14,002/- with interest at the rate of 9% per annum and proportionate costs, in addition to Rs.13,20,923/- awarded by the Tribunal. **MACA.No.1538 OF 2018** **6** 10. Aggrieved by the impugned judgment passed by this Court, the 3[rd] respondent preferred R.P.No.24/2020. This Court by order dated 12.3.2021, allowed the review petition and recalled the judgment dated 20.2.2019. Accordingly, the appeal was reheard. 11. Heard Sri.Pushparajan Kodoth, the learned counsel appearing for the appellants and Sri.Lal George, the learned counsel appearing for the 3[rd] respondent. 12. The question that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. Ext.A5 charge-sheet substantiates that the accident occurred due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. Ext.A6 Postmortem Report and Ext.A7 Inquest Report **MACA.No.1538 OF 2018** **7** prove that the deceased succumbed to the injuries on 9.10.2014. Ext.A10 Legal Heir-ship Certificate establishes that the petitioners are the legal heirs of the deceased. Similarly, Ext.A9 salary certificate substantiates that the deceased was employed as an Attender Gr.II in the High Court of Kerala. 13. The principal area of dispute in the appeal is whether the split multiplier adopted by the Tribunal was justified. The deceased was 51 years at the time of accident. In light of the ratio in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121] the multiplier to be adopted is 11 instead of 9 adopted by the Tribunal. 14. The Division Benches of this Court in **Oriental Insurance Company Ltd. v. Valsa** [2015 (1) KLT 781] and **Kumaran v. Roy Mathew** [2017 (1) KLT 668] have laid down the law that reduction of salary going by the date of superannuation will have **MACA.No.1538 OF 2018** **8** to be considered while fixing the compensation. 15. In view of the above ratoio, the reasoning given by the Tribunal to adopt the split multiplier taking full salary for the remaining period of service of the deceased and half salary for the remaining period as the multiplicand is justifiable and with cogent reasons, and rendered in the peculiar facts and circumstances of the case. 16. Accepting the reasoning of the Tribunal and following the ratio in **Oriental Insurance Company Ltd v. Valsa** and **Kumaran v. Roy Mathew** (supra), I am of the considered opinion that the compensation for 'loss of dependency' has to be calculated at the full salary for a period of 5 ½ years and half salary for the remaining period of 5 ½ years. Accordingly, the future prospects on the loss of dependancy have also to be fixed following above method. Accordingly, I refix the loss of dependency with future prospects at **9** ## **MACA.No.1538 OF 2018** Rs.20,02,252/- instead of Rs.9,77,225/- fixed by the Tribunal. 17. In light of the ratio in **Sarla Verma & Others** (supra), the petitioners are also entitled for compensation under the conventional heads namely, Funeral expenses at Rs. 15,000/-, Loss of estate at Rs.15,000/- and loss of consortium at the rate of Rs.40,000/- each i.e, Rs.40,000/- towards 'spousal consortium', Rs.80,000/- towards 'parental consortium' and Rs.40,000/- towards 'filal consortium', totalling to Rs.1,60,000/-. Accordingly, I enhance the compensation under the above-said heads. 18. It is seen that the Tribunal has awarded an amount of Rs.1,00,000/- under the head 'loss of love and affection' which is unsustainable in law in light of the decisions of this Court in **Kunjandy.L and others v. Rajendran** [ 2020 (2) KLT 315] and **Chandran and others v. Viju and others** [ 2020 (2) KLT 659]. **MACA.No.1538 OF 2018** **10** Hence, I set aside the compensation awarded under the said head. 19. With respect to the other heads of claim in the claim petition, namely, Transport to hospital, Damage to clothing and articles and medical treatment, the Tribunal has awarded just and reasonable compensation. 20. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the considered opinion that the petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. SI Head of claim Amount awarded Amounts .No by the Tribunal (in modified and **MACA.No.1538 OF 2018** **11** |||rupees)|recalculated<br>by this Court| |---|---|---|---| |1|Transport to Hospital|2,000|2,000| |2.|Damage to clothing and articles|500|500| |3.|Treatment expenses|26,198|26,198| |4.|Funeral expenses|25,000|15,000| |5.|Compensation for loss of<br>consortium|1,00,000|1,60,000| |6.|Compensation for mental agony<br>caused to the claimants|25,000|---| |7.|Compensation for loss of<br>dependancy<br>with<br>future<br>prospects|9,77,225|20,02,252| |8.|Compensation for loss of love,<br>affection and guidance etc|1,00,000|--| |9.|Loss of estate|25,000|15,000| |10.|Compensation for pain and<br>suffering|15,000|15,000| |11.|Compensation<br>for<br>short<br>expectation of life|25,000|---| ||||| ||Total|13,20,923<br>=======|22,35,950<br>=======| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.9,15,027/-with interest at the rate of 9% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the additional compensation awarded in the appeal before the Tribunal with interest **12** ## **MACA.No.1538 OF 2018** and proportionate costs within a period of two months from the date of reeceipt of a certified copy of the judgment. The disbursement of the additional compensation to the petitioners shall be done by the Tribunal in the proportion fixed in the impugned award and in accordance with law. **ma/18.3.2021** **Sd/-C.S.DIAS, JUDGE** ## **/True copy/**