Smt. Radhamani T.K. and others v. M.M. Shakkeeer, A.R. Joseph @ Kunjappan, The National Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
K. Ramakrishnan
Judgment Date: 2013-06-18
Court Decision / Holding: With the above modification of the impugned award, the MACA No.2628/09 is disposed of. The appellants are entitled to an additional Rs. 71,500 over the Tribunal’s award, calculated by applying a multiplier of 7 for the deceased’s age, with interest at 9% p.a. from the date of the claim petition until payment. Rs. 5,000 of the additional amount shall be paid to appellants 2 to 4, and the balance to the first appellant; the third respondent (insurer) is directed to deposit the additional amount within two months.
Final Disposition: Disposed of (modified award)

Parties to the Case

Appellants / Petitioners

SMT.RADHAMANI T.K.
SHRI.MILAN P.L.
SMT.MINILAL P.L.
SHRI.MIJULAL.P.

Respondents

SHRI.M.M.SHAKKEER
SHRI.A.R.JOSEPH @ KUNJAPPAN
THE NATIONAL INSURANCE CO.LTD.

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.A.AZIZ
• SRI.I.G.MANOHARAN
• SRI.N.N.PANKAJAKSHAN
• SMT.P.DHANYA

Counsels for Respondents

• SMT.RAJI T.BHASKAR

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal from MACA No. 2628 of 2009 heard by a Division Bench of the Kerala High Court. The appellants are the widow and major children of the deceased T.V. Lalan, whose death resulted from a motor vehicle accident attributable to respondents 1 and 2, with the claim administered under OP(MV) No. 724/2005 before the Motor Accidents Claims Tribunal, Ernakulam. The Tribunal found negligence and awarded Rs. 1,85,000 across heads including loss of dependency (Rs. 1,60,000), cost of transportation and funeral expenses (Rs. 5,000), pain and suffering (Rs. 7,500), loss of consortium (Rs. 7,500), and loss of estate (Rs. 5,000). The appellants contended that the Tribunal erred in fixing the deceased’s annual income at Rs. 48,000 despite evidence of fluctuating income shown in tax returns, and that the multiplier should be 7 rather than 5, following the Supreme Court’s approach in Sarla Varma v. Delhi Transport Corporation. Respondents’ counsel urged maintaining the Tribunal’s award. The High Court agreed that the income certificate was not fully reliable but held that the multiplier ought to be 7 for a 61-year-old, applying the Sarla Varma principle. It recalculated loss of dependency at Rs. 2,24,000 (4000 x 12 x 7 x 2/3) and granted additional Rs. 7,500 for loss of consortium and Rs. 7,500 for love and affection, totaling an extra Rs. 71,500 with 9% interest until payment. The insurer is directed to deposit this amount within two months. Consequently, the appeal is disposed of with modified compensation.

Legal Doctrines & Maxims

Multiplier principle for calculating loss of dependency (as laid down in Sarla Varma v. Delhi Transport Corporation)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that income shown in the tax returns fluctuates and the Tribunal’s fixed annual income of Rs. 48,000 was not reliable. They argued for re-assessing income and applying the multiplier appropriate for a 61-year-old, citing Sarla Varma v. Delhi Transport Corporation to obtain higher compensation, including enhanced losses for consortium and love and affection.

Contentions of Respondents

The respondents’ counsel contended that the Tribunal’s assessment was sound and should be affirmed, opposing any upward modification of the award.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Varma v. Delhi Transport Corporation	2010(2) KLT 802 (SC)	Positive	Used to support applying a higher multiplier (7) for a 61-year-old deceased, in line with the Supreme Court doctrine on calculating loss of dependency.

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** **TUESDAY, THE 18TH DAY OF JUNE 2013/28TH JYAISHTA 1935** ## **MACA.No. 2628 of 2009 ( )** **-------------------------AGAINST THE AWARD IN OPMV 724/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM DATED 29-07-2009** **APPELLANT(S)/PETITIONER IN OP(MV):** **---------------------------------** **1. SMT.RADHAMANI T.K., AGED 58 YEARS, W/O.LATE T.V.LALAN, RESIDING AT HOUSE NO.16/1945 "PRADEEP'S" (A 2 Z DRIVING SCHOOL) KOCHUPALLY, ROAD THOPPUMPADY, KOCHI-5.** **2. SHRI.MILAN P.L., AGED 40 YEARS, S/O.LATE T.V.LALAN RESIDING AT HOUSE, NO.16/1945 "PRADEEP'S" (A 2 Z DRIVING SCHOOL), KOCHUPALLY ROAD THOPPUMPADY, KOCHI.** **3. SMT.MINILAL P.L., AGED 38 YEARS, D/O.LATE T.V.LALAN & W/O.SIVAPRASAD RESIDING AT KARUVALIL HOUSE, (A 2 Z DRIVING SCHOOL) ERNAKULAM ROAD, VAIKKOM.** **4. SHRI.MIJULAL.P., AGED 36 YEARS, S/O.LATE T.V.LALAN, RESIDING AT HOUSE NO.16/1945 PRADEEP'S, (A 2 Z DRIVING SCHOOL), KOCHUPALLY ROAD THOPPUMPADY, KOCHI.** - **BY ADVS.SRI.P.A.AZIZ SRI.I.G.MANOHARAN SRI.N.N.PANKAJAKSHAN SMT.P.DHANYA** ## **RESPONDENT(S)/RESPONDENTS IN OP(MV):** **----------------------------------** **1. SHRI.M.M.SHAKKEER, HOUSE NO.23/716, VATTATHARA PARAMBU, KMP ROAD, PALLURUTHY KOCHI-6 (OWNER OF VEHICLE NO.K.L 7/B-6944).** **2. SHRI.A.R.JOSEPH @ KUNJAPPAN, S/O.ROCKY, HOUSE NO.15/242C, ALUMKAL HOUSE MULAMKUZHY KARA, RAMESWARAM VILLAGE, KOCHI TALUK ERNAKULAM DIST.** ## **MACA.No. 2628 of 2009( )** ## **3. THE NATIONAL INSURANCE CO.LTD.,** - **DAMODAR CHAMBERS, STATUTE JN., THRIPUNITHURA - INSURER** **R3 BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A. No.2628 of 2009 --------------------------------------------------------------Dated this, the 18[th] day of June 2013 ## Judgment ## Siri Jagan, J. The appellants are the widow and major children of the deceased T.V.Lalan, who died in a motor accident caused by the negligent driving of a vehicle, owned and driven by respondents 1 and 2 and insured with the third respondent. The appellants filed OP(MV)No.724/2005 before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of Lalan. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows : |**_Loss of dependency_**<br>**_(4000 x 12 x 5 x 2/3)_**|**_Rs.1,60,000/-_**| |---|---| |**_Cost of transportation and_**<br>**_funeral expenses_**|**_Rs.5,000/-_**| |**_Pain and suffering_**|**_Rs.7,500/-_**| |**_Loss of consortium of the_**<br>**_first appellant_**|**_Rs.7,500/-_**| |**_Loss of estate_**|**_Rs.5,000/-_**| |**_Total_**|**_Rs.1,85,000/-_**| The appellants are challenging the said award, claiming enhanced compensation. MACA No.2628/09 2 2. The contention of the learned counsel for the appellants is that despite the appellants' proving the annual income of the deceased by producing the income tax returns, the Tribunal arbitrarily fixed the annual income only as Rs.48,000/-. It is also submitted that the Tribunal has taken the multiplier only as 5, whereas in the light of the decision in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), the multiplier applicable to a 61 year old man, would be 7. The appellants also seek enhanced compensation for loss of consortium. It is further submitted that no amount has been awarded towards loss of love and affection of appellants 2 to 4. 3. The learned Standing Counsel for the Insurance Company argued to sustain the compensation awarded by the Tribunal. 4. We have considered the rival contentions in detail. 5. The Tribunal has given very cogent and convincing reasons as to why the income shown in the income tax returns filed by the appellants cannot be relied upon. The Tribunal has stated that even going by the income tax returns, the income is MACA No.2628/09 3 fluctuating from year to year. This would show that the income from the business of the deceased is uncertain. In the documents produced by the appellants, the annual income of the deceased is shown as Rs.72,000/-, Rs.74,000/- and Rs.58,000/- for the years 2002-03, 2003-04 and 2004-05 respectively. As such, the fixation of the annual income as Rs.48,000/- by the Tribunal does not appear to be arbitrary or unreasonable. Therefore, we are not inclined to interfere with the annual income of the deceased, fixed by the Tribunal. But, we find merit in the contention that the multiplier that should be adopted is 7 and not 5. The deceased was 61 years old, at the time of death and in the light of the decision in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), for a 61 year old man, which the deceased was, the multiplier to be adopted would be 7. Calculated thus, the appellants would be entitled to compensation for loss of dependency to the tune of Rs.2,24,000/- (4000 x 12 x 7 x 2/3). The difference would be Rs.64,000/- (224000-160000). We are also inclined to enhance the compensation for loss of consortium and loss of love and affection to appellants 2 to 4. Together, for the MACA No.2628/09 4 same, we award an amount of Rs.7,500/-. In total, the appellants would be entitled to an additional compensation of Rs.71,500/-, over and above what has been awarded by the Tribunal. This amount would carry interest @ 9% per annum from the date of the claim petition till the date of payment. The third respondent Insurance Company is directed to deposit this amount also within two months. Out of the total amount of Rs.71,500/-, Rs.5,000/shall be paid to appellants 2 to 4 and the balance amount shall be paid to the first appellant, insofar as the appellants 2 to 4 are not the dependants of the deceased and only the first appellant is the dependant of the deceased. With the above modification of the impugned award, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** ## **K.RAMAKRISHNAN,JUDGE** sta MACA No.2628/09 5 MACA No.2628/09 6