USHA v. SHAJI P.K. & MANASAN P.V. & THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940 MACA.No. 2633 of 2015** **AGAINST THE AWARD IN O.P(MV)NO.122/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 26-06-2014** ## **APPELLANTS/PETITIONERS:** |**1**|**USHA**| |---|---| ||**AGED 52 YEARS**| ||**W/O. LATE RAJU, PULLOLIKKAL HOUSE, OLIYAPURAM**| ||**KARA, THIRUMARADI VILLAGE, ERNAKULAM DISTRICT**| |**2**|**GINU P. RAJU**| ||**AGED 27 YEARS**| ||**S/O.LATE RAJU, PULLOLIKKAL HOUSE, OLIYAPURAM**| ||**KARA, THIRUMARADI VILLAGE, ERNAKULAM DISTRICT**| |**3**|**SONU P. RAJU**| ||**AGED 22 YEARS**| ||**S/O.LATE RAJU, PULLOLIKKAL HOUSE, OLIYAPURAM**| ||**KARA, THIRUMARADI VILLAGE, ERNAKULAM DISTRICT**| ||**BY ADVS.**| ||**SRI.R.SUDHISH**| ||**SMT.M.MANJU**| ## **RESPONDENTS/RESPONDENTS:** |**1**|**SHAJI P.K.**| |---|---| ||**PADATHUCHIRA HOUSE, MANAPPURAM P.O,THEVARVATTAM**| ||**MURI, KARA, THYKKATTUSSERY VILLAGE, CHERTHALA**| ||**TALUK, ALAPPUZHA - 688 526.**| |**2**|**MANASAN P.V**| ||**S/O. C.R VASUDHEVAN, PERUMTHATTATHARA HOUSE,**| ||**MANAPPURAM P.O, CHERTHALA, ALAPPUZHA - 688 526.**| |**3**|**THE MANAGER**| ||**THE ORIENTAL INSURANCE COMPANY LIMITED,**| ||**DIVISIONAL OFFICE, JYOTHI SUPER BAZAR,**| ||**THODUPUZHA, IDUKKI - 685 584.**| M.A.C.A.Nos. 2633 & 534 of 2015 2 **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, ALONG WITH MACA.534/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos. 2633 & 534 of 2015 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **MACA.No. 534 of 2015** **AGAINST THE AWARD IN O.P(MV)NO.122/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 26-06-2014** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE COMPANY LIMITED, THODUPUZHA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.** **BY ADVS. SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANTS:** **1 USHA W/O.LATE RAJU, PULLOLIKKAL HOUSE, OLIYAPURAM KARA, THIRUMARADI VILLAGE, PIN - 686 662.** **2 GINU P.RAJU S/O.LATE RAJU, RAJAN, PULLOLIKKAL HOUSE, OLIYAPURAM KARA, THIRUMARADI VILLAGE, PIN - 686 662.** **3 SONU P.RAJU S/O.LATE RAJU, PULLOLIKKAL HOUSE, OLIYAPURAM KARA, THIRUMARADI VILLAGE, PIN - 686 662.** **BY ADVS. SMT.M.MANJU SRI.R.SUDHISH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, ALONG WITH MACA.2633/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos. 2633 & 534 of 2015 4 ## **JUDGMENT** Among these appeals, M.A.C.A.No.534 of 2015 is an appeal by the insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal challenging the quantum of compensation fixed by the Tribunal and M.A.C.A.No.2633 of 2015 is by the claimants in the said proceedings challenging the inadequacy of the quantum of compensation fixed by the Tribunal. 2. The husband of the first claimant and the father of claimants 2 and 3 died in a motor accident took place on 03.05.2010. Deceased Raju was an employee in the Bharat Sanchar Nigam Limited (BSNL). He was aged 52 years. A sum of Rs.25,00,000/- was claimed in the proceedings towards compensation. The Tribunal, on an appraisal of the materials on record, granted a sum of Rs.19,62,312/-. As noted, the claimants as also the insurer of the vehicle involved in the accident are aggrieved by the quantum of compensation fixed by the Tribunal. 3. The learned counsel for the appellant in M.A.C.A.No.534 of 2015 contended that this is a case where it M.A.C.A.Nos. 2633 & 534 of 2015 5 was certain that the deceased would retire from service being an employee of a Public Sector Company and as such, the Tribunal ought to have adopted split multiplier for the purpose of computing the compensation payable to the claimants for 'loss of dependency'. Per contra, the learned counsel for the appellants in M.A.C.A.No.2633 of 2015, placing reliance on the decision of the Apex Court in **Puttamma and Others v. K.L.Narayana Reddy and Others,** (2013) 15 SCC 45, contended that split multiplier is a process which is deprecated by the Apex Court. The learned counsel also contended that the Tribunal has not taken note of the future prospects of the deceased while computing the compensation for loss of dependency. It was pointed out that if the Tribunal had taken note of the future prospects of the deceased, the compensation payable would have been much more. 4. I have examined the contentions raised by the learned counsel on either side. 5. As noted, the deceased was an employee of a Public Sector Company. As rightly pointed out by the learned counsel for the appellant in M.A.C.A.No. 534 of 2015, as it was M.A.C.A.Nos. 2633 & 534 of 2015 6 certain that the deceased would retire from service on attaining the age of superannuation, the Tribunal ought to have adopted split multiplier for computing the compensation for 'loss of dependency'. There is no merit in the contention taken by the learned counsel for the appellants in M.A.C.A.No.2633 of 2015 based on the decision of the Apex Court in **Puttamma** as it was clarified by the Apex Court in the said case that split multiplier can be adopted if there are satisfactory reasons available for the same. As far as the present case is concerned, as noted, as the deceased was an employee of a Public Sector Company, it was certain that he would retire from service on attaining the age of superannuation and therefore, according to me, the decision referred to above may not have any application. At the same time, there is merit in the contention taken by the learned counsel for the appellants in M.A.C.A.No.2633 of 2015 that future prospects also should have been reckoned by the Tribunal while computing the compensation payable under the head 'loss of dependency'. See **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. 6. As noted, the monthly income of the deceased was reckoned by the Tribunal at Rs.20,924/-. If 15% of the same M.A.C.A.Nos. 2633 & 534 of 2015 7 is added to the said income as held by the Apex Court in **Pranay Sethi,** the income would come to Rs.24,062/-. There is no evidence as to the age of retirement of the deceased. If the age of retirement is taken as 60, the multiplier to be applied for the first phase is '8'. If compensation is arrived at on that basis, deducting one-third for personal expenses, it would come to Rs.15,39,968/-. For the period after retirement, according to me, the notional monthly income can be reckoned at Rs.10,000/-. Here the multiplier to be applied is '7', which is the multiplier to be applied in the case of persons aged above 60. The compensation payable for the second phase would, therefore, come to Rs.5,60,000/- after deducting one third for personal expenses. The total compensation payable to the claimants towards 'loss of dependency' would thus come to Rs.20,99,968/-. The claimants are, therefore, entitled to an additional compensation of Rs.2,58,656/- under the above head. Further, it is seen that a sum of Rs.5,000/- was given by the Tribunal towards funeral expenses and Rs.5,000/- towards loss of estate and Rs.50,000/- towards loss of consortium. On the aforesaid heads, the total compensation granted was only Rs.60,000/-. According to me, in the light of the decision of the Apex Court in M.A.C.A.Nos. 2633 & 534 of 2015 8 **Pranay Sethi** , the claimants are entitled to a sum of Rs.40,000/towards loss of consortium for the first claimant and Rs.15,000/each towards loss of estate and funeral expenses. The claimants are, therefore, entitled to a further sum of Rs.10,000/- under the aforesaid heads. The compensation granted by the Tribunal to the claimants on all other heads appear to be in order. The additional compensation payable to the claimants would thus come to Rs.2,68,656/-. As it is found that the claimants are entitled to more compensation than what was granted by the Tribunal, the appeal filed by the insurer challenging the quantum of compensation is liable to be dismissed. In the result, M.A.C.A.No.534 of 2015 is dismissed and M.A.C.A.No.2633 of 2015 is allowed, modifying the award and directing the insurer to pay to the claimants a sum of Rs.2,68,656/- towards additional compensation. **==> picture [284 x 40] intentionally omitted <==** **Sd/P.B.SURESH KUMAR, JUDGE** DK