Sophy George and others v. Johnson s/o Mathai, Jinse George, Branch Manager, National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 MACA.No. 1856 of 2008() ----------------------OPMV.293/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANTS/PETITIONER ----------------------------------- 1. SOPHY GEORGE, W/O. LATE GOERGE KUNJALAKATTU HOUSE, MULAVOOR P.O., MUVATTUPUZHA, NOW RESIDING AT KUNJALAKATTU HOUSE, NEAR GANAPATHY TEMPLE, MATHIRAPPALLY, KOTHAMANGALAM. 2. JOFFIN GEORGE, S/O. LATE GEORGE KUNJALAKATTU HOUSE,MULAVOOR P.O., MUVATTUPUZHA, NOW RESIDING AT KUNJALAKATTU HOUSE, NEAR GANAPATHY TEMPLE, MATHIRAPPILLY KOTHAMANGALAM.(SON OF THE DECEASED) 3. ANUMOL GEORGE D/O. LATE GEORGE KUNJALAKATTU HOUSE, MULAVOOR P.O., MUVATTUPUZHA NOW RESIDING AT KUNJALAKATTU HOUSE, NEAR GANAPATHY TEMPLE, MATHIRAPPILLY, (DAUGHTER OF THE DECEASED) 4. THRESSIAMMA W/O. PAILY KUNJALAKATTU HOUSE, MULAVOOR P.O., MUVATTUPUZHA, NOW RESIDING AT KUNJALAKATTU HOUSE, NEAR GANAPATHY TEMPLE, MATHIRAPPILLY.(MOTHER OF THE DECEASED). BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENT(S): RESPONDENTS -------------------------- 1. JOHNSON S/O. MATHAI KATTUVALLIKUDIYIL HOUSE, KAVALANGADU, OONNUKAL P.O., KOTHAMANGALAM. 2. JINSE GEORGE, MANAPURATHU HOUSE, OONNUKAL P.O., KOTHAMANGALAM. 3. THE BRANCH MANAER, THE NATIONAL INSURANCE CO. LTD., THRISSUR. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: # **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No. 1856 of 2008** **------------------------------------------------Dated this the 29[th] day of September, 2011** ## **JUDGMENT** ## **Basant,J.** The claimants are the appellants. They are the wife, two minor children and aged mother of the deceased K.P. George a person aged 42 years who was employed as a Nursing Assistant in Government service. He was earning a monthly income of `6,260/-. The accident occurred on 2/2/04. The deceased succumbed to his injuries after 4 days of treatment. Against the claim for compensation limited to `15,00,000/-, the Tribunal awarded a total amount of `7,29,900/- as compensation as per the details given below: |**_Sl.No_**<br>**_._**|**_Name of head_**|**_Amount awarded_**| |---|---|---| |1|Loss of earnings|Rs.835.00| |2|Transportation expenses|Rs.2,000.00| |3|Funeral expenses|Rs.5,000.00| |4|Damage to clothing|...| |5|Medical expenses|Rs.17,925.00| |6|Bystander's expenses|Rs.1,200.00| |7|Loss of estate|Rs.2,500.00| |8|Pain and sufferings|Rs.12,000.00| |9|Loss of love and affection to the minor children|Rs.20,000.00| ## **M.A.C.A. No. 1856 of 2008** -: 2 :- |**_Sl.No_**<br>**_._**|**_Name of head_**|**_Amount awarded_**| |---|---|---| |10|Loss of love and affection to the mother of the deceased|Rs.5,000.00| |11|Loss of consortium|Rs.15,000.00| |12|Loss of dependency (`6,235/- x 12 x 2/3 x 13)|Rs.6,48,440.00| |Total||**Rs.7,29,900.00**| 2. Before us, the learned counsel for the appellants/ claimants and the learned counsel for the respondent/insurance company have advanced their arguments. The insurer has been made entirely liable to satisfy the impugned award. The challenge is limited to the quantum of compensation awarded under the heads of loss of dependency and loss of consortium. 3. An amount of `15,000/- has been awarded under the head of loss of consortium. The deceased was a person aged 42 years. The first claimant/wife is a person aged 41 years. It is argued that the quantum of compensation awarded under the head of loss of consortium is painfully low. We find merit in the contention. We are satisfied that an amount of `25,000/- can, in the circumstances of this case, be fixed as the quantum of compensation under the head of loss of consortium. 4. The Tribunal had reckoned 13 as the multiplier. The learned counsel for the appellants points out that following the decision in **Sarla Verma v. Delhi Transport Corporation** ## **M.A.C.A. No. 1856 of 2008** -: 3 :- [(2009) 6 SCC 121], 14 must have been adopted as the multiplier. The learned counsel further contends that the deceased was a person in settled and stable service - under the Government. The Tribunal has omitted to make provision for future increase of prospects in employment. Following paragraph-24 of the **Sarla Verma** (supra), it is argued that 30% must certainly have been provided for future improvement of prospects in employment. We readily agree with the learned counsel for the appellants on these aspects. After the dictum in **Sarla Verma** (supra), certainly multiplier and multiplicand have to be ascertained in accordance with the said precedent. To avoid vagaries in the calculation of compensation by various Tribunals/courts, such an approach is certainly essential. `6,235/- was reckoned as the monthly income. 30% increase has to be provided. We are satisfied that the contention raised by the learned counsel for the appellants is justified. 5. Lastly, the learned counsel contends that following the dictum in **Sarla Verma** (supra), one fourth of the monthly salary alone should have been reduced towards the personal expenses of the deceased as the family of the deceased consists of five persons including himself i.e., the deceased, his wife, two minor children and the aged mother aged 71 years. ## **M.A.C.A. No. 1856 of 2008** -: 4 :- 6. It is true that following Sarla Verma v. D.T.C [(2009)6 SCC 121] , 1/3 is the deduction to be made when the family consists up to four members. If the number of members of the family exceeds four, 1/4[th] alone is to be deducted towards the personal expenses. In the instant case, we must note that there is nothing to indicate that the mother of the deceased was wholly and solely depending on him. In these circumstances, we are of the opinion that the deduction of 1/3[rd] for the personal expenses of the deceased need not be interfered with. **7.** The above discussions lead us to the conclusion that the appellants are entitled to a further amount of 2,69,416/- as compensation in addition to the amount awarded by the tribunal. 1. Loss of consortium (Rs.25,000/- minus Rs.15,000/-) Rs.10,000/- 2. Loss of dependency Rs.2,59,416/[Rs.9,07,816/- (Rs.6,235/- x 12 x 130/100 x 2/3 x 14) minus Rs.6,48,400) ------------------- ## **Total Rs.2,69,416/========** 8. In the result, - a) This appeal is allowed in part. - b) Appellants are found entitled to a further amount of ## **M.A.C.A. No. 1856 of 2008** -: 5 :- Rs.2,69,416/- (Two lakhs sixty nine thousand four hundred and sixteen only) in addition to the amount already awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the tribunal in the impugned award. d) All other directions of the Tribunal are upheld. Sd/- ## **(R.BASANT, JUDGE)** **Sd/-** **(M.C.HARI RANI, JUDGE)** jsr //true copy// P.S. to Judge # **M.A.C.A. No. 1856 of 2008** -: 6 :- ## **M.A.C.A. No. 1856 of 2008** -: 7 :- **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010 # **M.A.C.A. No. 1856 of 2008** -: 8 :- ## **M.A.C.A. No. 1856 of 2008** -: 9 :- **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010 **R. BASANT** **(Judge)** **M.C. HARI RANI (Judge)** **Nan/** ## **M.A.C.A. No. 1856 of 2008** -: 10 :- **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------C.M. Appl. No. 1874 of 2008 in M.A.C.A. No. 1856 of 2008 ------------------------------------------------Dated this the 29[th] day of September, 2011** ## **ORDER** This petition is to condone the delay of 45 days in filing the M.A.C.A. Heard the learned counsel for the appellants and the learned counsel for the insurance company. We take a lenient view. Petition allowed. Delay condoned. **R. BASANT (Judge)** **M.C. HARI RANI (Judge)** **Nan/**