The Manager, United India Insurance Company Limited v. V.K. Vijayalakshmi and Others (MACA No. 2261 of 2007 (D))

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 25TH DAY OF JULY 2012/3RD SRAVANA 1934 MACA.No. 2261 of 2007 (D) ------------------------------OPMV.1097/2000 of MACT, IRINJALAKUDA ------------ APPELLANT/3RD RESPONDENT:: ------------------------------------- THE MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, CHALAKKUDI NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, "SHARANYA" HOSPITAL ROAD, KOCHI-11. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS/PETITIONERS AND R4:: --------------------------------------------- 1. V.K.VIJAYALAKSHMI, W/O.LATE GANGADHARAN K.K., KAITHAYIL HOUSE, "SANIRA" GANDHIGRAM, IRINJALAKUDA. 2. NISHA ANIYAN, W/O.M.R.ANIYAN, MOOTHEDATH HOUSE, KUZHIKKATTUSSERY VIA.IRINJALAKUDA. 3. SALIL K.G., S/O.LATE K.K.GANGADHARAN, KAITHAYIL HOUSE, "SANIRA", GANDHIGRAM IRINJALAKUDA. 4. RAKHI BEL DEV, W/O.BEL DEV, - GULF BUSINESS FOUNDATION, P.B.NO.408, DUBAI-UAE. BY ADV. SRI.K.A.SATHEESA BABU – R1 TO R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.2261 of 2007 -----------------------------------------------Dated this the 25[th] day of July, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The Insurance Company is in appeal. 2. The respondents/claimants who are the widow and children of a 59 year old Telecom Inspector by name Gangadharan who met with his death in a road traffic accident on 11/10/99, approached the Tribunal claiming a sum of ` 6 lakhs as compensation against which the learned Tribunal awarded a sum of ` 5,95,000/- together with interest at the rate of 6% per annum from the date of claim petition till realisation. Allegedly while the deceased was walking along the road he was hit down by a car insured with the appellant Insurance Company. The car driver was found negligent and the appellant Insurance Company was saddled with the liability of paying the compensation. M. A. C. A No.2261 of 2007 -2- 3. In this appeal, the appellant Insurance Company is challenging the amount of compensation awarded as excessive. 4. We have heard the learned senior counsel for the appellant Insurance Company and the learned counsel for the respondents/claimants. We have also perused the impugned award. 5. The deceased Gangadharan was working as an Inspector in Telecom Department. He was 59 years old at the time of the accident. He had left one year service on the date of his death. His salary as per Ext.A7 certificate was ` 10,680/-. The learned Tribunal however found that the acceptable salary is ` 9,000/-. There is no dispute regarding this. The main grievance voiced against the award is that the learned Tribunal adopted the multiplier 'eight' and awarded compensation calculated on the basis of the monthly income of the deceased for the entire period of eight years. The learned senior counsel for the appellant would submit that as the deceased would have continued in M. A. C. A No.2261 of 2007 -3- service only for one year had he been alive the computation of compensation for loss of dependency adopting the monthly salary for the entire period of eight years is unacceptable. 6. The learned counsel for the respondents/claimants per contra would submit that apart from the pension from service the deceased would have earned substantial income as he was a qualified Inspector having long standing experience. We are of the view that on account of the death of the deceased there would be diminution in the pension even though the widow would be getting a portion of the pension which would have been drawn by the deceased. We are also of the view that after retirement the deceased could have got some employment on account of his work experience. Considering all these aspects into account, we fix the notional income of the deceased for the post retirement period as ` 5,000/-. The multiplier applicable to the age group of the deceased as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation M. A. C. A No.2261 of 2007 -4- (2010(2) KLT 802 SC) is '9'. The dependency compensation can be re-calculated as under:- a) For the last year of service the monthly income adopted by the Tribunal i.e. ` 9,000/- is accepted. One third of the amount has to be deducted in consideration of the expenses which the deceased would have incurred had he been alive. That means the compensation for the loss of dependency for the said period is ` 72,000/-. b) For the post retirement period, the notional monthly income of the deceased is fixed at the rate of ` 5,000/-. Here also one third of the amount has to be deducted in consideration of the personal expenses of the deceased. So the compensation for dependency for the said period of eight years will come to ` 3,20,000/-. 7. Thus, the total amount of compensation for loss of dependency will come to ` 3,92,000/-. As the learned Tribunal has awarded a sum of ` 5,76,000/- as compensation for loss of dependency the amount of compensation for loss of dependency shall stand reduced by ` 1,84,000/-. M. A. C. A No.2261 of 2007 -5- 8. Being the last court on facts, we feel ourselves justified in making a quick re-appraisal of the compensation awarded by the learned Tribunal under other heads also. 9. It was submitted by the learned counsel for the respondents/claimants that the death was not instantaneous. As the learned Tribunal has awarded only a sum of ` 5,000/- towards compensation for pain and suffering, we award to the claimants an additional sum of ` 5,000/- under that head. 10. It was also pointed out by the learned counsel for the respondents/claimants that no amount was awarded by the learned Tribunal towards loss of earning. Thus we award to the claimants a sum of ` 5,000/- on that count. 11. We notice that the amount awarded by the learned Tribunal towards funeral expenses is only ` 3,000/-. Thus we award to the claimants an additional sum of ` 2,000/- under that head. 12. We are of the view that towards transportation expenses also some more amount could have been M. A. C. A No.2261 of 2007 -6- awarded. Thus we award to the claimants an additional sum of ` 2,000/- under that head. 13. The first claimant who is the widow was aged 56 years at the time of the accident. As she lost her husband unexpectedly, she is entitled to get a reasonable sum as compensation for loss of consortium. As the amount awarded by the learned Tribunal is only ` 5,000/- we award to her an additional sum of ` 15,000/- towards loss of consortium. 14. The deceased was survived by three children, one of whom is employed. However, the children are entitled to get a reasonable sum as compensation for loss of love and affection. As the amount awarded by the Tribunal is only ` 5,000/- we award to them an additional sum of ` 25,000/towards loss of love and affection. 15. Thus in total the claimants become entitled to get an additional sum of ` 54,000/-. While offsetting the amount additionally awarded by us against the excess amount of ` 1,84,000/- awarded under the head loss of dependency, M. A. C. A No.2261 of 2007 -7- the actual deduction will be only ` 1,30,000/-. That means the amount of compensation awarded by the learned Tribunal shall stand reduced to ` 4,65,000/-. We make it clear that the entire amount awarded shall carry interest at the rate of 7.5% per annum from the date of claim petition till realisation. 16. The appeal is allowed. The impugned award shall stand modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE