United India Insurance Company Ltd v Mercy, Anita Mariya Ealias, Ajay Geo Ealias (Minor), Eliyamma, Poulose

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` # **`THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 MACA NO. 859 OF 2014`** # **`AGAINST THE AWARD DATED 20.11.2013 IN O.P(M.V) NO.494/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, WAYANAD, KALPETTA`** ## **`APPELLANT/3RD RESPONDENT:`** ``` UNITED INDIA INSURANCE COMPANY LTD KASARAGOD, 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:`** - `1 MERCY, W/O.LATE EALIAS A.P., ATHIRAMPUZHA HOUSE, KIZHAKKE MEENANGADI, MEENANGADI P.O., S.BATHERI TALUKPIN 673 320.` - `2 ANITA MARIYA EALIAS, D/O.LATE EALIAS A.P., ATHIRAMPUZHA HOUSE, KIZHAKKE MEENANGADI, MEENANGADI P.O., S.BATHERI TALUK, PIN 673 320.` - `3 AJAY GEO EALIAS (MINOR), S/O.LATE EALIAS A.P., ATHIRAMPUZHA HOUSE, KIZHAKKE MEENANGADI, MEENANGADI P.O., S.BATHERI TALUK REPRESENTED BY HIS MOTHER 1ST RESPONDENT, PIN 673 320.` - `4 POULOSE, S/O.KURIAKOSE, ATHIRAMPUZHA HOUSE, KIZHAKKE MEENANGADI, MEENANGADI P.O., S.BATHERI TALUK, PIN 673 320.` - `5 EALIYAMMA, W/O.POULOSE, ATHIRAMPUZHA HOUSE, KIZHAKKE MEENANGADI, MEENANGADI P.O., S.BATHERI TALUK, PIN 673 320. BY ADVS.SRI.ABRAHAM P.GEORGE SRI.K.VINODKUMAR 70789` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ``` ``` ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.859 of 2014 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 29[th] day of September, 2022 ``` This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Wayanad, Kalpetta (for short ‘the Tribunal’) on 20.11.2013 in O.P(M.V) No.494/2012. 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the Petitioners and respondents 1 to 3 in accordance with their status before the Tribunal. 3. The insurer of the offending vehicle is the appellant and challenge raised is mainly on the quantum of compensation stands awarded by the Tribunal. 4. According to Sri.Mathews Jacob, the learned counsel for the 3[rd] respondent, the Tribunal passed an award for Rs.45,58,883/- in favour of the petitioners who are legal representatives of the victim of the motor accident occurred at about 2.30 pm on 30.08.2012 and succumbed to those later. The victim was driving an Omni Van bearing Registration No.KL 12D/9254 and while it was proceeding from Sulthan Bathery to Meenangadi, it was hit by a lorry bearing Registration No.KL ``` M.A.C.A.No.859 of 2014 ``` ``` 3 ``` 14E/3559 proceeding from the opposite direction due to rash and negligent driving by its driver. The driver of the lorry was arrayed as the 1[st] respondent, it’s owner as the 2[nd] respondent and it’s insurer, as the 3[rd] respondent in the Original Petition. Rs.50,00,000/- was claimed as the total compensation. 5. Notice was served on all the respondents but due to non appearance of the 1[st] respondent, the Tribunal declared him ex parte. The 2[nd] and 3[rd] respondents entered appearance and filed written statement. It was contended by the 2[nd] respondent that the 1[st] respondent who was driving the lorry bearing Registration No.KL 14E/3559 was not rash negligent in driving it, that the lorry at the relevant time of the motor accident was actually parked on the side of the road, that the driver was holding authorisation to drive the lorry at the relevant time of the motor accident and that the compensation claimed is excessive and without basis. 6. The 3[rd] respondent has also filed written statement contending that the Original Petition is not maintainable, that the motor accident was occurred not due to the rash and ``` M.A.C.A.No.859 of 2014 ``` ``` 4 ``` negligent driving of the lorry by the 1[st] respondent and that huge sum was claimed as compensation. However, the lorry was admittedly insured with them under the certificate of insurance issued by them. 7. Tribunal raised points for consideration on the basis of the rival pleadings of the parties and permitted them to adduce evidence. Exts.A1 to A9 were marked on the side of the petitioners. Respondents did not adduce any evidence. On appreciation of the evidence adduced by the petitioners as above the Tribunal found that the motor accident was occurred due to the rash and negligent driving of the lorry by the 1[st] respondent. Rs.45,58,883/- was arrived at as the compensation payable to the petitioner and the 3[rd] respondent was directed to pay it with interest at the rate of 7.5% per annum, from the date of filing of the Original Petition till the date of realisation. 8. According to Sri.Mathews Jacob, the learned counsel for the 3[rd] respondent, the quantum stands arrived at by the Tribunal as compensation is exorbitant. According to him the accident was occurred in the year 2012. The specific claim of ``` M.A.C.A.No.859 of 2014 ``` ``` 5 ``` the petitioner was that the victim of the accident who died, was aged 48 years and working as a Teacher in an aided school. The Last Pay Certificate of the deceased was produced and marked in evidence as Ext.A8. This Court is convinced from Ext.A8 that the deceased was a Teacher at St.Mary’s A U P School, Cheengeri and was drawing Rs.28,461/- as salary at the relevant time. On the strength of the direction issued by the Constitutional Bench in National Insurance Co.Ltd. V. Pranay Sethi and others [2017 (4) KLT 662(SC)], the deceased being aged 48 years and is having a permanent job with fixed salary is entitled to have an addition of 30% to the salary earned by him at the relevant time of his death. The Tribunal has correctly arrived at Rs.36,999/- as the monthly salary and there is absolutely no reason for interference. 9. According to the learned counsel 13 was adopted as the multiplier by the Tribunal for assessment of compensation under the head loss of dependency. The learned counsel canvassed for assessment of compensation for loss of dependency by adopting split multiplier method. ``` M.A.C.A.No.859 of 2014 ``` ``` 6 ``` 10. The split multiplier method is condemned by the Apex Court and it directed assessment of compensation in the case of persons permanently employed on the basis of the multiplier applicable to the age of the deceased at the relevant time. When compensation is re-assessed based on the above factors, a sum of Rs.43,28,883/- is arrived at. 11. As compensation towards loss of estate, the Tribunal has awarded Rs.5,000/- whereas the petitioners are entitled to get Rs.16,500/-. Therefore, the petitioners will get Rs.11,500/as additional compensation. The Tribunal has awarded a sum of Rs.25,000/- as compensation under the head funeral expenses whereas the petitioners are entitled only to get Rs.16,500/-. Therefore, Rs.8,500/- needs to be deducted from Rs.25,000/-. 12. The learned counsel also pointed out that Rs.1,00,000/- each was awarded as compensation respectively under the heads loss of consortium and loss of love and affection and the Tribunal went wrong in doing so. According to the learned counsel in United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and Others [2020 (3) KHC ``` M.A.C.A.No.859 of 2014 ``` ``` 7 ``` 760] it was categorically held that there cannot be award of compensation under both heads. 13. It is noticed that the deceased was survived by his wife, two minor children and aged parents. Therefore, each of them, who survived him are entitled to get Rs.44,000/towards loss of consortium. When compensation is recalculated in the manner, petitioners will get Rs.2,20,000/- (Rs.44,000/- x 5) as compensation. It is true that the petitioners are not entitled to get compensation under the head loss of love and affection. Therefore, the compensation stands awarded under that head is liable to be deducted from Rs.2,20,000/- now arrived at as additional compensation. Thus, petitioners will get Rs.20,000/- [Rs.2,20,000/- (1,00,000/- x 2)] as additional compensation under that head. Rs.8,500/- stands granted as compensation in excess also needs to be deducted. 14. The learned counsel also canvassed for deduction of 5% from the amount arrived at as compensation towards income tax payable. ``` M.A.C.A.No.859 of 2014 ``` ``` 8 ``` 15. It is worthy to note in the context that the compensation arrived at is liable to be disbursed proportionally among the petitioners. Therefore, the argument to deduct 5% towards income tax is discarded. 16. In the above manner of re-assessment, petitioners are entitled to get Rs.23,000/- (Rupees twenty three thousand only) [(Rs.11,500+Rs.20,000) – Rs.8,500/-)]. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent shall deposit the original amount stands awarded by the Tribunal with interest fixed on it (if not already paid) and the amount now arrived at as additional compensation, with interest fixed on it within a period of two months from the date of receipt of a certified copy of this judgment. Appeal stands allowed in part accordingly. Sd/- ## **MARY JOSEPH** **JUDGE** SMA