Sreekala, W/o Late Jaya Kumar & Silpa Jaya Kumar (Minor) v. V. Vellingiri and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **& THE HONOURABLE MRS. JUSTICE K.HEMA** ## **FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929** **MFA.No. 85 of 2001(B)** **-------------------------------** **O.P (MV).NO.757/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR.** **....................** ## **APPELLANTS/ PETITIONERS 2 & 3:** **--------------------------------------------------** **1. SREEKALA, W/O. LATE JAYA KUMAR.** **2. SILPA JAYA KUMAR (MINOR), D/O. LATE JAYA KUMAR, (MINOR 2ND APPELLANT REPRESENTED BY HER MOTHER THE 1ST APPELLANT).** **BOTH ARE RESIDING AT KARALATH HOUSE, P.O. VIYYOOR, THRISSUR.** **BY ADV. SRI.V.CHITAMBARESH, ADV. SRI.T.C.SURESH MENON.** ## **RESPONDENTS/RESPONDENTS/ PETITIONERS 5 TO 7:** **-------------------------------------------------------------------------------** **1. V. VELLINGIRI, RESIDING AT 37, KRISHNASAMI PILLAI COLONY, SULEESWARANPATTI.P.O., POLLACHI-6.** - ***2. ELANGOVAN, S/O. PALANIYAPPAN, RESIDING AT 334, MARAPETTAI STREET, POLLACHI. *(DELETED).** **2ND RESPONDENT DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 28/09/2005 IN I.A. 3015/04 AT THE RISK OF THE APPELLANT.** **3. THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH (721201) 5, RAJA MILL ROAD, POLLACHI - 642 001.** **4. GOPINATHAN, S/O. NARAYANAN.** **M.F.A. NO. 85/2001:** ## **5. SATHYABHAMA, D/O. NARAYANAN.** **6. REMA DEVI, D/O. NARAYANAN.** **RESPONDENTS 4 TO 6 ARE RESIDING AT KARALATH HOUSE, P.O. VIYYOOR, THRISSUR.** **R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL.** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B.KOSHY & K.HEMA, JJ. ------------------------------M.F.A.NO.85 OF 2001 (B) ----------------------------------Dated this the 8[th] day of February, 2008** ## **J U D G M E N T** ## **KOSHY,J.** A Police constable sustained fatal injuries in a motor accident on 27.1.1998. After suffering enduring pain and treatment with life saving medicines and surgeries, he succumbed to death after eight months of treatment on 27.9.1998. His young wife aged 30 and minor child along with dependent parents applied for compensation. Parents died during the pendency of the case. A claim for Rs.7 lakhs was filed which was amended subsequently to Rs.14 lakhs and limited to Rs.10 lakhs. Tribunal awarded an amount of Rs.6,44,328/-. Only dispute is regarding the quantum of compensation as it was found that accident occurred due to the negligence of the driver of the vehicle insured by the 3[rd] respondent Insurance company and there was valid insurance at the time of accident and Insurance company was directed to MFA.85/01 2 deposit the amount. 2. First we will consider the compensation granted for loss of family dependency. Ext.A7 is the pay slip which shows that his basic pay was Rs.1,330/-. D.A. was Rs.2,261/-, merged D.A. was Rs.1,367/- and interim relief was Rs.233/- apart from City compensatory allowance, H.R.A. etc. and total monthly salary was Rs.5,616/-. If we take basic pay, D.A., Interim relief and merged D.A. alone, the monthly income comes to Rs.5,191/-. The tribunal considered the above and fixed his gross income at Rs.5,896/-. Then deducted[1] /3rd and calculated compensation taking Rs.3,930/- as the multiplicant. Considering the age of the deceased, 16 was taken as the multiplier and calculated compensation of Rs.7,54,560/-. Then considering the interest portion, it was reduced and compensation fixed for loss of dependency is Rs.4,71,600/-. It is the contention of the claimants that he was a police constable in the Government service. There were periodical wage revisions. There are promotional prospects and time bound promotions, and if he continued in service, he would MFA.85/01 3 have got atleast three times above the salary which he was drawing at the time of accident. Apart from time bound promotions he may expect to be promoted as Head constable in the normal course and S.I. of police etc. and terminal benefits including gratuity, pension etc. is based on the last drawn wages. These benefits were lost to the family. Considering the decision of _**General Manager, K.S.R.T.C. v. Susamma Thomas ((1994) 2 SCC 176),**_ future prospects ought have been taken into account and it is the case of the claimants that atleast Rs.15,000/- can be taken as monthly income for calculating compensation. Vagaries of life cannot be predicted. But in Government service, there will be future prospects and increase in salary is definite. Considering these facts, we are of the opinion that atleast Rs.6,000/- can be taken as the income and Rs.4,000/- can be fixed as the monthly loss of contribution. Thus we are only taking Rs.4,000/-. It has been repeatedly held by the Supreme Court that for fixing the multiplier, 2[nd] Schedule has to be taken as the guideline. Deceased was 38 years at the time of accident. Since tribunal has fixed 16 as the multiplier, taking the 2[nd] schedule as a MFA.85/01 4 guideline, we see no ground to enhance the same. Even though it is argued that he had 17 years of service more and considering the increase in life expectancy and decrease in interest rate, a higher multiplier would be taken, we are of the opinion that 16 taken by the tribunal is sufficient. If that be so, compensation payable will be Rs.4,000 x 12 x 16 = Rs.7,68,000/-. Tribunal has awarded only Rs.4,71,600/-. So, the additional compensation payable under this head is Rs.2,96,400/-. It is submitted that he was under treatment for eight months. Tribunal has considered the matter in paragraph 9 of the award which shows that when he sustained injuries, he was taken to Aswini Hospital, Thrissur as proved by Ext.A2 certificate where it is held as follows: “He was unconscious at the time of admission. There was bleeding from left ear. There was a crushed lacerated wound 4 cm. long on the right ear. The pinna was detached. There was diffused haematoma on the right temporal area. There were lacerated wounds behind right ear on the right chest, on the right thigh and the wrist. There are lacerated injuries on the right wrist. The dislocated ulna was protruding out. There were two other lacerated wounds below the right knee. There was abrasion on the left parietal area below the right eye. X- MFA.85/01 5 ray revealed fracture to the lower end of radius and dislocation of ulna. Fracture was detected on the right femur alos. CT Scan of the head revealed fracture to right temporal bone. Sub dural haematoma was noted on the left fronto temporal bone. Sub dural haematoma was noted on the left fronto temporal and parietal areas. Ext.A5 is the copy of the discharge summary issued by the said hospital which states that CT Scan showed enlarging extra dural, sub dural and intra cranial clots within few hours of admission. Evacuation of the haematoma done and he was put on ventilation for a day. Subsequent CT Scan showed clearance of haematoma. Though he was discharged on 11.3.1998 the discharge summary would show that at the time of discharge he was having severe post traumatic psychosic and cerebral tenderness. For the fracture of the forearm and femur open reduction and internal fixation was done. PW1, who is the widow of the original claimant had deposed that later he was taken to Mission Hospital, Kolenchery and while undergoing treatment the petitioner had died on 27.9.1998. Ext.A14 is the certificate issued by the neuro surgeon of the Department of Neuro Science of the Malankara Orthodox Syrian Church Medical Mission Hospital, Kolenchery. It is stated in the said certificate that the petitioner was under his treatment from 6.4.1998. At the end of six months after the injury he was totally disoriented with time, place and person. He was restless, abusive and was walking around all the time. He was catheterised and he was incontinent of stool an would handle feces if not restricted. He cannot recognise his wife and relatives also. Sexual functions were also absent. He could MFA.85/01 6 not carry out self care and required confinement. Emotional disturbances were present in moderate to severe degree under ordinary stress. Ext.A6 is the post-mortem certificate which would go to show that the death was due to the complications developed in the brain due to the injuries sustained by him in the road accident.” This shows that he suffered endurable pain for eight months. But tribunal has awarded only Rs.15,000/- for pain and sufferings and considering the sufferings for long duration, we are of the view that a higher amount ought to have been granted. It is further submitted that the life saving medicines were given. But only the amount as per the bills were reimbursed. There will be many expenses in the hospital which are not covered by the bills. It was again submitted that wife was only 32 years and child was only 6[1] /2 years. Compensation granted for loss of consortium was Rs.10,000/- and Rs.20,000/granted for loss of love and affection and fatherly care to the child was very low. But considering the interest payable on the lump sum, we are not enhancing the compensation granted under other heads. Therefore the additional compensation payable will be Rs.2,96,400/-. The above amount should be MFA.85/01 7 deposited by he 3[rd] respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the above amount, 50% of the same is allowed to be withdrawn by the 1[st] appellant widow and balance should be deposited in a nationalised bank in favor the 2[nd] appellant minor daughter enabling her to withdraw the amount at the age of her marriage or at the age of 21 whichever is earlier. With the above observations this appeal is partly allowed. ## **J.B.KOSHY, JUDGE** **K.HEMA, JUDGE** prp ## **J.B.KOSHY & K.HEMA, JJ.** **--------------------------------------------------------** **M.F.A.NO.85 OF 2001 ()** **---------------------------------------------------------** **J U D G M E N T** **---------------------------------------------------------** **8[th] February, 2008**