Thanka w/o Ayyappan and others v. Manoj, K.A. Kabeer and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943** ## **MACA NO. 1290 OF 2011** ## **AGAINST THE AWARD DATED 1.2.2011 IN OPMV 429/2007 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANTS/PETITIONERS:** 1 THANKA W/O.AYYAPPAN (MOTHER OF DECEADED),, KARAYAMPARAMBIL HOUSE, THALORE.P.O., THRISSUR. - 2 SAROJINI AGED 40 YEARS W/O.LATE SREEDHARAN -DO- - 3 SREEJITH AGED 23 YEARS S/O.LATE SREEDHARAN -DO- - 4 SREERAJ S/O.LATE SREEDHARAN -DO- BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** - 1 MANOJ, AGED 43 YEARS, S/O. KITTU, PANNAMTHARA HOUSE, THANYAN VILLAGE,, PERINGOTTUKARA DESOM, THRISSUR. PIN-680 520., (DRIVER OF BUS NO.KL-8 W 3888) - 2 K.A.KABEER, S/O. ABDULLA KUNNAMKANDATH HOUSE, VADAKKUMURI.P.O.,, PERINGOTTUKARA, THRISSUR. PIN-680 519., (OWNER OF BUS NO.KL-8 W 3888) **MACA No. 1290 OF 2011** **2** 3 THE ORIENTAL INSURANCE CO.LTD. GURUVAYOOR ROAD, KUNNAMKULAM-680 503,, POLICY NO.9392/2007 VALID FROM 21/12/2006 TO, 20/12/2007. BYADVS. MATHEWSJACOB(SR.) SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No. 1290 OF 2011** **3** ## **JUDGMENT** The appellants were the petitioners in O.P (MV) No.429/2007 on the file of the Motor Accidents Claims Tribunal, Ottapplam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of Sreedharan (deceased) – the son of the 1st appellant, the husband of the 2[nd] appellant and the father of the appellants 3 and 4. 3. It was their case that : on 4.3.2007, while the deceased was riding his motorcycle bearing registration No.KL-8 N-9468 through Perumbillissery -Palakkad road, a bus bearing registration No. KL-8 W- 3888 (bus), driven by the 1[st] respondent in a rash and **MACA No. 1290 OF 2011** **4** negligent manner, hit the motorcycle of the deceased. Although the deceased was taken to the Elite Mission Hospital, Koorkkenchery, he succumbed to the injuries. He was the sole breadwinner of the family. The appellants were the dependents of the deceased. The deceased was a police constable in the Cherpu Police Station drawing a monthly salary of Rs.11,000/-. The bus was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence the appellants claimed a total compensation of Rs.11,21,750/- from the respondents, which claim was limited to Rs.7,00,000/-. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The 3rd respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the deceased. The 3[rd] respondent also ## **MACA No. 1290 OF 2011** **5** contended that the claim petition was bad for nonjoinder of necessary parties, as the owner and insurer of the motor cycle were not made parties. Nevertheless, the 3[rd] respondent admitted that the bus had a valid insurance policy. Similarly, the 3[rd] respondent disputed the age, income and occupation of the deceased. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 6. The 3[rd] appellant was examined as PW1 and Exts.A1 to A9 were marked in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to realise from the 3rd respondent an amount of Rs.4,77,000/- with interest at the rate of 7% per annum from the date of petition till the date of realization and a cost of **MACA No. 1290 OF 2011** **6** Rs.5,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. Sheji P.Abraham, the learned counsel appearing for the appellants/petitioners and Sri.P.Jacob Mathew, the learned counsel appearing for the 3rd respondent- insurer. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 11. Ext.A5 charge-sheet filed by the Cherpu Police in Crime No.114/2007 clearly proves that the accident happened due to the negligence of the 1st respondent. Indisputably, the 2nd respondent was the **MACA No. 1290 OF 2011** **7** owner and the 3rd respondent was the insurer of the bus. The respondents have not let in any evidence to the contrary, to discredit Ext.A5 Chargesheet. Likewise, the 3[rd] respondent has not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 12. The appellants had claimed that the deceased was a police constable in the Cherpu police station, and that he was drawing a monthly salary of Rs.11,000/- per month. To substantiate the pleadings in the claim petition, the appellants produced Exts.A8 and A9 salary slips issued by the Cherpu police station, which shows that the deceased was drawing a gross monthly salary of Rs.11,910/-. **MACA No. 1290 OF 2011** ## **8** 13. The Tribunal, after taking into account the deductions, fixed the monthly salary of the deceased at Rs.7,534/-. Thereafter, as the appellant had only four more years of service the Tribunal fixed the notional monthly income of the deceased at Rs.5,000/-. 14. In **N.Jayasree & Others v. Cholamandalam MS General Insurance Company Ltd** ., (LL.2021 SCC 588) the Hon'ble Supreme Court, after relying on its earlier decisions in **K.R.Madusudhan and Others v. Administrative Officer and another (2011 (4) SCC 689)** and **Puttamma and Others Vs. K. L.Narayana Reddy and another (2013 (15) SCC 45),** has categorically held that in view of the clear enunciation of law by the Constitutional Bench in **National Insurance Company Ltd Vs. Pranay Sethi [2017 (16) SCC 680** ] and also in **Reshma Kumari and others Vs. Madan Mohan and another** **MACA No. 1290 OF 2011** **9** **(2013 (9) SCC 65),** the Tribunals/Courts shall not adopt the split multiplier method to award compensation. 15. In the light of the ratio in **N.Jayasree (supra)** I hold that the course adopted by the Tribunal, by scaling down the salary of the deceased and fixing only notional income on the ground that the deceased would have superannuated in four years is wrong and erroneous. 16. In **Kalpana Raj and Others V. Tamil Nadu State Transport Corporation [2015 (2) SCC 764]** , the Hon'ble Supreme Court has held that what needs to be deducted from the income of the gross deceased/victim is only the income tax and professional tax, to fix the net income. 17. In the present case, as evident from Ext.A9 salary slip, the deceased was earning a monthly pay of **10** **MACA No. 1290 OF 2011** Rs.8590/- and Dearness Allowance of Rs.430/- which comes to Rs.9,020/- which annually works out to an amount of Rs.108240/-. As per the income tax slab, for the assessment year 2007-08, the income tax for the persons having an income up to Rs.1 lakh p.a. was exempted. Persons having an annual income above the said figure i.e., between Rs.1 lakh and Rs.1,50,000/-, 10% has to be deducted towards income tax. 18. As already found, the deceased was drawing a salary of Rs.1,08,240/- p.a. Therefore, Rs.824/- has to be deducted towards income tax. Thus the annual income of the deceased works out to Rs.107416/-, Consequently, the monthly salary of the deceased is Rs.8,951/-. Thus I fix the net monthly salary of the deceased at Rs.8,951/-. ## **Multiplier** 19. The deceased was aged 51 years at the time of **11** ## **MACA No. 1290 OF 2011** accident/death. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is ‘11’. ## **Dependents of the deceased** 20. It is proved that the appellants were the mother, the wife, and children of the deceased, who are four in number. Therefore, in the light of the law laid down in **Sarla Verma (supra) and National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680** ], 1/4th of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 21. In **Sarla Varma** and **Pranay Sethi** (supra) the Hon'ble Supreme Court has held that in the case **MACA No. 1290 OF 2011** **12** where the deceased's age was 51 years and he was permanently employed, his dependants are entitled towards future prospects at 15%. ## **Loss due to dependency** 22. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.8,951/-, the multiplier at '11', the future prospects at 15% and after deducting 1/4th of the total compensation towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.10,19,071/-, instead of Rs.4,40,000/awarded by the Tribunal. ## **Conventional heads of compensation** 23. In clause (viii) of paragraph 61 of the **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for **13** ## **MACA No. 1290 OF 2011** compensation under the conventional heads namely, 'Funeral expenses', 'Loss of estate' and 'Loss of consortium' at Rs.15,000/-, Rs.15,000 and Rs.40,000/respectively. The Hon'ble Supreme Court has also observed that the above amounts have to be enhanced by 10% every three years. 24. The above legal position has been reiterated by the Hon'ble Supreme Court in **N.Jayasree (supra)** and in **Rasmita Biswal & Others Vs. National Insurance Co. Ltd and another (LL.2021 (SC 717)** wherein the Honourable Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is only to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of Pranay ## **MACA No. 1290 OF 2011** ## **14** Sethi, which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled for compensation under the conventional heads at Rs.16,500, Rs.16,500 and Rs.44,000/- respectively. 25. In the instant case, the Tribunal has awarded an amount of Rs.10,000/- under the head loss of consortium. As the appellants were the mother, wife and children of the deceased, I hold that each of them are entitled for an amount of Rs.44,000/- towards 'loss of consortium' totaling to an amount of Rs. 1,76,000/-. The Tribunal has also awarded an amount of Rs.10,000/- towards 'loss of estate' and Rs.5,000/towards funeral expenses. In view of the law in **Pranay Sethi (supra)** I enhance the compensation under the head 'loss of estate' by a further amount of Rs.6,500/- and under the head ‘funeral expenses’ by **MACA No. 1290 OF 2011** **15** an amount of Rs.11,500/-. ## **Loss of love and affection.** 26. The Tribunal has awarded an amount of Rs.10,000/- under the head loss of love and affection. 27. In **New Insurance Assurance Co. Ltd v. Somwati & Others [(2020) (9) SCC 644],** the Hon'ble Supreme Court has held that once compensation is awarded for loss of consortium, no amount shall be awarded under the head 'loss of love and affection', as it will amount to duplication of compensation. Therefore, I set aside the amount awarded under the said head. 28. However, I find that the amount of Rs. 2,000/awarded under the head transportation expenses is to be reasonable and just. 29. On an overall re-appreciation of the pleadings **MACA No. 1290 OF 2011** **16** and materials on record and the law referred to the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.<br>No.|Head of claim|Amount<br>awarded|Enhanced<br>amount| |---|---|---|---| |1.|Transportation|2,000|2000| |2.|Funeral expenses|5,000|16,500| |3.|Loss of estate|10,000|16,500/-| |4.|Loss of love and affection|10,000|0| |5.|Loss of consortium|10,000|1,76,000/-| |6.|Loss of dependency|4,40,000|10,19,071| ||Total|4,77,000|13,02,071| 30. Even though the appellants had claimed only a compensation of Rs.7,00,000/-, following the ratio in **17** **MACA No. 1290 OF 2011** **Sarla Verma and Pranay Sethi (supra),** I have awarded the appellants future prospects as well as compensation under the conventional heads. Therefore, I have awarded more compensation than what is claimed in the claim petition, as it is just and reasonable compensation. The said course is permissible in the light of the law laid down by the Hon’ble Supreme Court in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC** ] and **Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC** ]. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.8,25,071/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and proportionate costs. The 3rd respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days **MACA No. 1290 OF 2011** **18** from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants in the ratio of 10:40:25:25, respectively, and in accordance with law, after deducting the liability of the appellants, if any, to pay court fee. **Sd/C.S.DIAS JUDGE** al/-