Thomas and Athira Tharesa Tom and Arathi Elizebath Tom v. P.T. Devassy and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939 MACA.No. 1597 of 2009 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)No.934/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 13-11-2006 ## APPELLANTS/PETITIONERS: ------------------------------ 1. THOMAS, S/O.OUSEPY, AGED 45 YEARS, KURUPPASSERY HOUSE, POYYA P.O., MALA. ## 2. ATHIRA THARESA TOM, D/O.THOMAS, AGED 9 YEARS, KURUPPASSERY HOUSE, POYYA P.O., MALA. 3. ARATHI ELIZEBATH TOM, D/O.THOMAS, AGED 7 YEARS,, KURUPPASSERY HOUSE, POYYA P.O., MALA. (APPELLANTS 2 AND 3 ARE MINORS AND SO REPRESENTED, BY NATURAL GUARDIAN THOMAS, IST APPELLANT). BY ADVS.SRI.E.C.POULOSE SMT.BOBBY RAPHEAL.C ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. P.T.DEVASSY, PAYYAPPILLY HOUSE, KEERAMKULANGARA, TRICHUR. 2. AZEEZ, S/O.ABDUL KHADER, PANIKKASSERY HOUSE, KRISHNAPURAM P.O., OLLURKKARA. 3. NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, AMBIKA ARCADE, M.G.ROAD, TRICHUR. 4. POULOSE, S/O.VARKEY, PYNADATH HOUSE, KARUKUTTY. 5. ELAMMA, W/O.POULOSE, PYNADATH HOUSE, KARUKUTTY. R3 BY ADV. SRI.A.A.MOHAMMED NAZIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.1597 of 2009 -------------------------------Dated 7[th] August, 2017 ## **JUDGMENT** ## **Ravikumar, J.** The petitioners in O.P.(M.V)No.934 of 2001 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda filed this appeal seeking enhancement of the quantum of compensation granted thereunder. They are respectively the widower and two minor daughters of one Reena who lost her life in a motor vehicle accident that occurred on 11.4.2001 at about 8.30 p.m.. On that day, Reena was travelling along with the appellants on a motorcycle. The offending vehicle which is a bus bearing Reg.No.KL-8/E-727 driven by the second respondent, dashed against their motorcycle. The deceased and the appellants sustained serious injuries. Reena was taken to hospital and from there she succumbed to the injuries. The claim petition was filed seeking a compensation of 16,43,000/-. The Tribunal as per the₹ impugned award granted an amount of 7,56,425/- with interest at the₹ rate of 6% per annum from the date of petition till the date of deposit. This appeal has been filed seeking enhancement of the quantum of compensation. M.A.C.A.No.1597 of 2009 2 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the third respondent, the insurer of the bus involved in the accident. 3. The cause of the accident and the liability of the third respondent insurance company to indemnify the insured owner of the offending vehicle are not in dispute. In such circumstances, the sole question to be considered is whether or not the appellants are entitled to get enhanced compensation. 4. The learned counsel appearing for the appellants contended that the Tribunal erroneously estimated the monthly income of the deceased Reena for calculating compensation for loss of dependency. It is the further submission that the appellants have produced Ext.A8 pay certificate whereunder the salary of the deceased was certified as 6,172/-. The Tribunal virtually took 4,000/- for the₹ ₹ purpose of calculating compensation for loss of dependency. An amount of 2,172/- was deducted towards personal expenses of the₹ deceased. The learned counsel submitted that deduction of the said amount towards personal and living expenses of the deceased warrants interference. With reference to the adoption of multiplier, it is submitted that it was also wrongly identified. That apart, it is contended by the learned counsel that the sums granted as compensation by the M.A.C.A.No.1597 of 2009 3 Tribunal towards funeral expenses, loss of consortium, loss of love and affection are also on the lower side and therefore, they require upward modification. Per contra, the learned counsel appearing for the third respondent submitted that the Tribunal had granted just compensation as can be seen from the impugned award and therefore, no appellate interference is called for. 5. We have given our anxious consideration to the rival contentions and perused the impugned award. On such consideration, we are of the considered view that the fixation of monthly income for the purpose of calculating compensation for dependency, identification of the multiplier for the said purpose, so also the deduction towards her personal and living expenses, were made in deviation of the settled position of law. In such circumstances, a re-assessment of compensation for loss of dependency has to be made. Ext.A8 would reveal that the deceased was drawing a salary of 6,172/-. Going by₹ the same, the deduction from the salary is 1,120/- and therefore, the₹ take home salary was only 5,052/-. Needless to say that the said₹ amount has to be taken as the basis for calculation. At the time of death Reena was aged only 31 years. In such circumstances, there is substance in the contention of the learned counsel for the appellants that the Tribunal ought to have made 50% addition reckoning the M.A.C.A.No.1597 of 2009 4 future prospects. Ext.A8 would undoubtedly reveal that the deceased was a salaried person. In the light of the decision of the Hon'ble Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ when the age of the deceased was below 40 years, 50% has to be added to the income, reckoning the future prospects. In the light of the said decision, deduction towards personal and living expenses of the deceased has to be made reckoning the number of surviving dependent family members. The accident involved in **Sarla Verma's** case (supra) occurred in the year 1998. The accident in question occurred in the year 2001. In such circumstances, applying the dictum laid down in **Sarla Verma's** case (supra), the monthly income for calculation purpose has to be re-fixed. We have already found that the salary of the deceased was 5,052/-. Reckoning the₹ future prospects by taking into account the age of Reena at the time of accidental death, 50% has to be added. Therefore, the monthly income for calculation purpose has to be taken as 7,578/-. Though there are₹ only three claimants in the claim petition, it is evident from the claim petition that respondents 4 and 5 are the parents of the deceased. Even if it is taken that the father could not be treated as a dependent of his daughter for the purpose of finding out the rate of deduction to be made depending upon the number of dependent family members, the M.A.C.A.No.1597 of 2009 5 mother has to be treated as a dependent. In such circumstances, in tune with the dictum laid down in **Sarla Verma's** case (supra) 1/4[th] of the income alone has to be deducted towards personal and living expenses of the deceased. Going by the schedule given in **Sarla Verma's** case (supra) the multiplier applicable with reference to the age of the deceased is `16'. In such circumstances, the amount payable towards loss of dependency has to be re-assessed substituting the re-fixed monthly income of 7,578/- and multiplier as `16'. 1/4₹ th of the income fixed also has to be deducted towards personal and living expenses. On such calculation, the compensation payable towards loss of dependency would be ₹10,91,232/- (7,578x12x16x3/4). The Tribunal has already granted an amount of 7,20,000/- under that₹ head. Deducting the said amount, an amount of 3,71,232/- is payable₹ additionally under the said head. Though the learned counsel appearing for the appellants submitted that compensation granted under the heads loss of consortium and funeral expenses are liable to be enhanced in the light of the subsequent decisions of the Hon'ble Apex Court, taking into account the year of the accident in this case and the year of the accident involved in the decision in **Rajesh** v. **Rajbir Singh (2013(3) KLT 89(SC))** we do not find any reason to hold that the appellants are entitled to the benefit flowing from **Rajesh's** case M.A.C.A.No.1597 of 2009 6 (supra). It is to be noted that in the decision in **Sarla Verma's** case (supra) the claimant was given only an amount of 10,000/- towards₹ loss of consortium and in this case, the first appellant was already given an amount of 10,000/- under that head. But, in that case, 5,000/-₹ ₹ was granted towards funeral expenses. In the case on hand, an amount of 4,000/- was granted under that head and hence, we are inclined to₹ grant an amount of 1,000/- additionally towards funeral expenses.₹ Towards loss of love and affection an amount of 12,000/- was granted₹ by the Tribunal. The learned counsel appearing for the appellants submitted that at the time of accidental death of their mother appellants 2 and 3 were aged only 5½ years and 4 years respectively. At that tender age they lost their mother and thus, the much needed maternal case. There can be no doubt that even after marriage daughters would require the services of the mother at various stages and situations. Taking into account all such aspects, we are of the view that the amount granted by the Tribunal towards `loss of love and affection' to appellants 2 and 3 is on the lower side. We are inclined to grant an amount of 40,000/- thereunder. In that view of the matter,₹ an amount of 28,000/- is granted additionally thereunder. In the light₹ of the enhancement made as above, the appellants are entitled to get an additional compensation of ₹4,00,232/- which is rounded off M.A.C.A.No.1597 of 2009 7 to 4,00,250/-.₹ 6. In the result, the appellants are awarded an additional compensation of 4,00,250/-. The said additional compensation will₹ carry interest at the rate of 8% per annum from the date of petition till realisation, except for a period of 829 days. This is because, in the order dated 16.6.2016 in I.A.No.2478 of 2015 filed for condoning the delay of 829 days in filing the appeal, this Court ordered that the appellants would not be entitled to get interest for 829 days while allowing the application. The third respondent is directed to deposit the additional compensation along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. 7. Though the accident was not disputed the third respondent-insurer of the offending vehicle disputed its liability to indemnify the insured owner of the vehicle. Obviously, a specific contention was taken up before the Tribunal by the insured that the second respondent was not having a valid driving licence or badge to drive a heavy passenger transport vehicle. As noticed hereinbefore, the vehicle involved in this accident is the bus bearing Reg.No.KL-8/E-727. The Tribunal found that respondents 1 and 2 who are respectively the owner and driver of the said offending vehicle did not produce driving licence or badge of the second respondent. Even the particulars M.A.C.A.No.1597 of 2009 8 regarding the badge and driving licence were not furnished. Consequent upon the said findings, the Tribunal granted liberty to the third respondent insurer to recover the compensation after satisfying the award. Notice was served on respondents 1, 2, 4 and 5 in this proceedings. But, they have not chosen to enter appearance in this proceedings. Needless to say that they also did not take up cross objection in this appeal. In the said circumstances, we maintain the liberty granted by the Tribunal to the third respondent to recover the amount paid to satisfy the award. The appeal is disposed of accordingly. There will be no order as to costs. **Sd/C.T.RAVIKUMAR Judge** **Sd/ANIL K. NARENDRAN Judge** TKS