Usha Sahadevan and others v United India Insurance Co. Ltd. and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2013/20TH AGRAHAYANA, 1935** **MACA.No. 516 of 2007 ( )** **------------------------AGAINST THE AWARD IN OPMV 2728/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM DATED 05-09-2005** **-----** **APPELLANTS/PETITIONERS.:** **1. USHA SAHADEVAN, AGED 49 YEARS, W/O.LATE SAHADEVAN.** **2. SANEESH S., AGED 27 YEARS, S/O.LATE SAHADEVAN.** ## **3. NISHA SAHADEVAN, AGED 26 YEARS,** **D/O. -DO-** **(ALL ARE RESIDING AT PALLICHAVANATHU HOUSE, USHUS THULAMPARAMBU NORTH, MANNARSALA P.O., HARIPAD.** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENTS/RESPONDENTS.:** **-----------------------** ***1. T.V.UNNI, S/O.VASAVAN, THUNDUMELPARAMBU, C.M.C.XII, MARUTHORVATTOM P.O., CHERTHALA (DELETED)** ## ***2. ROY ABRAHAM, S/O.E.T.ABRAHAM,** **ELANJICKAL HOUSE, NEDUMPRAKKAD P.O., KOKOTHAMANGALAM VILLAGE, CHERTHALA TALUK(DELETED)** **3. UNITED INDIA INSURANCE CO.LTD., BY ITS MANAGER, MTPC OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, COCHIN-16.** - ***4. THE MANAGING PARTNER,MORAKKAL ENTERPRISES, GCDA COMMERCIAL COMPLEX MARINE DRIVE, KOCHI-31(DELETED)** ## ***5. KRISHNA KUMAR, S/O.PURUSHOTHAMAN,** **KALLAYIL HOUSE, PADINJARE VEMBALLOOR DESOM SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK(DELETED)** ## **MACA.No. 516 of 2007 ( )** **6. THE ORIENTAL INSURANCE CO.LTD.,** **BY ITS BRANCH MANAGER, BRANCH OFFICE NO.1 DEEPTHI BUILDING, P.B.NO.2972, PALLIMUKKU COCHIN-16. *DELETED :** **R1,R2,R4 & R5 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DT 23/10/2013 IN IA 2732/2013 IN MACA 516/2007.** **R3 TO R6 BY SRI.MATHEWS JACOB SENIOR ADVOCATE R3 TO R6 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** ............................................................................ M.A.C.A.NO.516 OF 2007 ........................................................................... Dated this the 11[th] day of December, 2013. ## **JUDGMENT** ## **Siri Jagan, J.** The widow and major children of deceased Sahadevan are the appellants herein. Sahadevan died in an accident caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with the third respondent. The appellants filed OP(MV)No.2728/1998 before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of Sahadevan. The Tribunal, after finding negligence on the part of the driver of the vehicle insured with the third respondent, awarded compensation under various heads as follows: |Loss of dependency|Rs.2,88,000| |---|---| |Transportation and|| |funeral expenses|Rs. 5,000| |Pain and suffering|Rs. 7,500| |Loss of consortium|Rs. 5,000| |Loss of love and affection|Rs. 5,000| |Medical expenses|Rs. 28,000| ||------------| |Total|Rs.3,38,500| ||========| 2. Dissatisfied with the quantum of compensation awarded MACA.516/2007 2 by the Tribunal, the appellants have filed this appeal seeking enhanced compensation. 3. The accident was on 15.5.1998. Sahadevan died on 16.5.1998. He was 49 years old at the time of his death. He was working as a Technical Assistant in the Naval Physical and Oceanographic Laboratory. His salary was Rs.7,904/- at the time of his death. The appellants would contend that despite the appellants proving the monthly salary of the deceased by producing the salary certificate issued by the employer of the deceased, the Tribunal arbitrarily adopted only Rs.3,000/- for the purpose of calculating compensation for loss of dependency and reduced one third therefrom for personal expenses of the deceased. According to the appellants, the Tribunal should have taken the entire salary with an enhancement of 30% thereof for future prospects. It is further submitted that the amounts awarded under other heads are also palpably low. Considering the fact that the first appellant was 46 years old at the time of death of her husband and she had absolutely no prospect of a remarriage, the compensation for loss of consortium is palpably low is the other contention of the appellants. Therefore, the appellants seek enhancement 3 MACA.516/2007 under all heads. 4. On the other hand, the counsel for the insurance company argues for sustaining the award. 5. We have considered the rival contentions in detail. The Tribunal has accepted the salary certificate produced by the appellants as Ext.R4(a), which certified the monthly salary of the deceased as Rs.7,904/-. The only reason given by the Tribunal for fixing the monthly income only as Rs.3,000/- is that otherwise that would amount to over compensation. The reason for taking that stand is that the first appellant has been given employment under the dying in harness scheme and that she is also getting family pension. We are not satisfied that, that is the correct approach. First of all, the Supreme Court has, in the decision reported in **Vimal Kanwar & Others** **v. Kishore Dan & Others** (2013 AIAR (civil) 636, held that Provident Fund, pension and salary receivable by the dependant-claimant on compassionate appointment on account of the employee, dying in harness cannot be taken into account for the purpose of calculating loss of dependency. In such circumstances, what the Tribunal should have done is to take the monthly salary, add for future prospects, deduct income tax 4 MACA.516/2007 and then calculate the dependency selecting the appropriate multiplier applicable. That has not been done by the Tribunal in this case. We, therefore, adopt Rs.7,900/- as the monthly salary of the deceased. 30% has to be added for future prospects in accordance with the decision of the Supreme Court in **Rajesh & Others v. Rajbir Singh & Others** (2013 (3) KHC 212 (SC). From the same, 20% has to be deducted for income tax in accordance with the decision in **Sarla Verma,** **v. Delhi Transport Corporation** (2010 (2) KLT 802(SC), which has been confirmed by the Supreme Court in **Reshma Kumari v. Madan Mohan** (2013 (2) KLT 304 (SC). The multiplier applicable for a 49 year old person is 13 as per the decision in **Sarla Verma** (cited supra). But the deceased has to retire from service on attaining the age of 60 years. At the time of death, he was nearing 50. Therefore, for the purpose of calculating loss of dependency on the basis of the salary, only 11 out of the period of multiplier can be taken into account. Therefore, till his retirement, if the multiplier is taken as 11, the compensation for loss of dependency would be Rs.7,23,008/- (7900x130/100x80/100x12x11x2/3). After the retirement, the deceased can be expected to have earned some 5 MACA.516/2007 income. Dependency has to be calculated on such notional income as well for the balance period of the multiplier. We fix the notional income as Rs.3,000/- per month for this purpose. If dependency for the multiplier of 2 is calculated for that income, the amount would be Rs.48,000/- 9000x12x2x2/3). The total would come to Rs. 7,71,008/. The Tribunal awarded only Rs.2,88,000/-. The difference would be Rs.4,83,008/-. 6. The first appellant was 46 years old at the time of the death of her husband. She had two children, aged 24 and 23 years respectively. As rightly pointed out by the counsel for the appellants, she had no real prospect of a remarriage. Therefore, we enhance the compensation for loss of consortium to Rs.40,000/- from Rs.5,000/-. Likewise, although children are major, they also lose the love and affection of their father. Consequently, we enhance the compensation for love and affection to Rs.20,000/- from 5,000/-. The Tribunal has not awarded any compensation for loss of estate, for which a conventional amount ought to have been awarded. We fix the same as Rs.7,500/-. We are not satisfied that the appellants are entitled to enhancement under other heads, since we are of the opinion that the Tribunal has awarded just and 6 MACA.516/2007 reasonable compensation under the other heads. Adding together, the appellants will be entitled to additional compensation of Rs.5,40,508/- over and above what has been awarded by the Tribunal. Regarding interest, the counsel for the insurance company points out that the the appeal was filed with a petition to condone delay of 262 days. Therefore, he submits that the said period should be excluded for the purpose of granting interest. We find merit in that contention. Therefore while calculating interest, the period of delay of 262 days has to be excluded. Consequently, the additional compensation so awarded by us shall carry interest at the rate of 9% per annum from the date of the claim petition till the date of payment, after excluding the 262 days of delay in filing the appeal. Except Rs.15,000/- awarded as compensation for loss of love and affection to appellants 2 and 3, the entire balance amount shall be paid to the first appellant. However, the same shall be dealt with in accordance with the conditions stipulated in the award regarding the proportion between the amount to be disbursed to the first appellant and the amount to be kept in fixed deposit. However, the first appellant would be free to approach the Tribunal for disbursing the amount in deposit also 7 MACA.516/2007 showing appropriate valid reasons. The third respondent insurance company is directed to pay the additional compensation within two months. With the above modification in the impugned award of the Tribunal, the appeal is disposed of. ## **S.SIRI JAGAN, JUDGE.** **K. RAMAKRISHNAN, JUDGE.** cl