United India Insurance Company Limited v. Lissy George and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **&** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933** ## **MACA.No. 1761 of 2011()** **------------------------------** ## **OPMV.1130/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** **....................** **APPELLANT(S):3RD RESPONDENT** **---------------------------------------** **UNITED INDIA INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, “SHARANYA”, HOSPITAL ROAD, KOCHI - 11.** **BY SRI.MATHEWS JACOB, SENIOR ADVOCATE ADV.SRI.P.JACOB MATHEW** ## **RESPONDENT(S):PETITIONERS** **-------------------------------------** **1. LISSY GEORGE, W/O. LATE K.M. GEORGE, KUNNARATH HOUSE, VELOOR KARA, PUTHENCRUZ P.O., KUNNATHUNADU TALUK - 682 308.** **2. SHEEBA GEORGE, D/O. LATE K.M. GEORGE, KUNNARATH HOUSE, VELOOR KARA, PUTHENCRUZ P.O., KUNNATHUNADU TALUK - 682 308.** **3. JOBY GEORGE, S/O. LATE K.M. GEORGE, KUNNARATH HOUSE, VELOOR KARA, PUTHENCRUZ P.O., KUNNATHUNADU TALUK - 682 308.** **4. SARAMMA MATHAI, W/O.K.C. MATHAI, KUNNARATH HOUSE, VELOOR KARA, PUTHENCRUZ P.O., KUNNATHUNADU TALUK - 682 308.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **R. BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------M.A.C.A.NO: 1761 OF 2011, C.M.Applns.2541/2011 & 2646/2011** **----------------------------------------------------------Dated this the 28[th ] October, 2011.** ## **JUDGMENT** ## Basant, J. ## **C.M.Appln.2541/2011** This petition is to condone the delay of 93 days in representation of M.A.C.A. We take a lenient view. Petition allowed. Delay condoned. Number the M.A.C.A and the application for condonation of delay. ## **C.M.Appln.2646/2011** This petition is to condone the delay of 250 days in filing the M.A.C.A. We have heard the learned counsel for the appellant-insurance company. We are proceeding to dispose of the M.A.C.A. straight away. We take a lenient view. Petition allowed. We do not think it necessary to wait for issue and return of notice to the respondents to consider this application for condonation of delay. MACA 1761/2011 2 ## **M.A.C.A.1761/2011** The insurance company is the appellant. The claimants are the wife aged 38 years and two children and aged mother of the deceased. The deceased suffered injuries in a motor accident which took place on 8-8-2011. He continued his treatment in various hospitals and before recovery he succumbed to the injuries on 17-8-2002. He was employed as a helper in the FACT and was earning an income of Rs.9860 as basic pay and D.A. He could not resume his employment after the accident because of the injuries. There is also evidence to suggest that during the period that he was undergoing treatment after the accident before his death he had taken voluntary retirement and had claimed the ex gratia payment due from his employer. 2. Against a total claim, limited to an amount of Rs.30 lakhs, the Tribunal by the impugned award directed payment of a total amount of Rs.8,35,380/- as per the details given in paragraph 9 of the impugned award which we extract below:- |Head|Amount|Amount| |---|---|---| ||claimed|awarded| |Compensation for loss of||| |dependency and estate|2800000|75768| |Transportation expenses|10000|3000| |MACA 1761/2011|3|| |---|---|---| |Damage to clothing and||| |articles|--|400| |Loss of estate|10000|5000| |Funeral expenses|10000|2000| |Medical expenses<br>|350000|--| |Attendant expenses|50000|37300| |For pain and sufferings<br>|100000|10000| |Compensation for loss of love||| |and affection|50000|10000| |Loss of consortium|20000|10000| |Mental shock and agony|20000|--| |Compensation for the loss||| |of guidance and support|50000|--| |Compensation for the loss||| |of expectation of life|30000|--| ||----------------|-------------------| |Total|3470000|835380| ||=======|========| 3. The appellant insurance company claims to be aggrieved by the impugned award. What is the grievance? The learned counsel for the appellant attacks the quantum of compensation awarded under the head of loss of dependency. An amount of Rs.757680 was awarded as compensation under that head. MACA 1761/2011 4 4. The basis on which the compensation was awarded is very evident. Though Rs.10794 was claimed to be the monthly income on the date of the accident the Tribunal accepted only Rs.9860 as his monthly income which includes only the basic pay and the D.A. The Tribunal took into account the fact that towards payment of income tax, surcharge, profession tax etc an amount of Rs.15000 may have to be paid annually. Therefore the Tribunal deducted that Rs.15000 from the annual income. From the balance 1/3[rd] of the income was set apart for the personal expenses of the deceased. Taking the age of the deceased (44 years) the Tribunal accepted 11 as the multiplier. It is accordingly that the Tribunal arrived at the figure of Rs.757680 (9860x12 minus 15000x(2/3x11). 5. What is the grievance? We do take note that the Tribunal has not taken the multiplier at 14 as is insisted by the judgment in **Sarla Varma v.Delhi Transport Corporation** (2009)6 SCC 121. Be that as it may; the learned counsel for the appellant called upon to explain the nature of the challenge contends that the Tribunal erred in reckoning 9680 as the monthly income. This is the only ground of challenge. Indisputedly on the date of the accident the deceased was MACA 1761/2011 5 employed as a helper in the FACT and was getting the said amount of Rs.9680 as his basic pay and D.A not to speak of the other emoluments. It is true that because of the accident and the injuries suffered the deceased could not resume his employment. Till the date of his death ultimately on 17-8-2002 the deceased could not resume his employment. Realising the futility of continuing in such employment he had taken voluntary retirement and had claimed the benefits that were due to him. The learned counsel for the appellant insurance company argues that having chosen to take voluntary retirement and claim benefits from his employer the claimants are not justified in seeking and the Tribunal was not justified in accepting Rs.9860 as the monthly income of the deceased to arrive at the multiplicand. We may straight away note that the Tribunal has not made any provision for future improvement of prospects in employment as insisted by **Sarla Varma v. Delhi Transport Corporation** (2009) 6 SCC 121. We note further that no compensation had been awarded for loss of earnings for the period from the date of accident to death. The death had resulted from the accident is not disputed by the insurance company. MACA 1761/2011 6 6. We are certainly of the opinion that the mere fact that the appellant realising the futility of his continuing to wait to resume employment because of the injuries suffered in the accident, had chosen to retire voluntarily from his employment while he was undergoing treatment is no reason at all to contend that the monthly salary which deceased was drawing at the time of the accident cannot be taken into reckoning as the monthly income. We do further note that for the loss of earnings during the period of treatment (till death) no compensation has been awarded under the head of loss of earnings. We are certainly of the opinion that the Tribunal has not committed any such error warranting appellate interference in reckoning the possible future income as Rs.9860 per mensum. That was the actual amount the deceased was drawing monthly when he met with the accident. That would certainly have been his income had he continued his employment and the accident had not intervened. In these circumstances the mere fact that the deceased had chosen to retire voluntarily and claim the terminal benefits that were due to him cannot in any way justify the Tribunal not accepting his salary on the date of his accident as the multiplicand while ascertaining the compensation for loss of MACA 1761/2011 7 dependency. We are unable to agree with the learned counsel for the appellant that there is any such error warranting appellate interference under Section 173 by us in the computation of compensation for loss of dependency. 7. No other contentions are raised. We are in these circumstances satisfied that this appeal only deserves to be dismissed in limine. This appeal is therefore dismissed in limine holding that the challenge at the instance of the appellant against the impugned award is not justified. Sd/- R. BASANT Judge Sd/K. SURENDRA MOHAN Judge jj P.S.to Judge MACA 1761/2011 8