VARGHESE M.V and others v. Branch Manager, Kerala State Insurance Department

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 6TH DAY OF DECEMBER 2017 / 15TH AGRAHAYANA, 1939** **MACA.No. 1924 of 2010** **--------------------OPMV 493/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA** **--------------** ## **APPELLANT/PETITIONERS :** **---------------------** **1. VARGHESE.M.V,AGED 55 YEARS,S/O.VARKEY, RESIDING AT MOIDU QUARTERS,THALAPUZHA PO, MANANTHAVADY TALUK, WAYANAD, (F/O. THE DECEASED, SIJU VARGHESE)** **2. V.M.MOLY,AGED 55 YEARS, W/O.VARKEY,RESIDING AT MOIDU QUARATERS, THALAPUZHA P.O,MANANTHAVADY TALUK, WAYANAD, (M/O. THE DECEASED SIJU VARGHESE)** **3. SIBU.M.V,AGED 29 YEARS, MOIDU QUARTERS,THALAPUZHA P.O, MANANTHAVADY, TALUK,WAYANAD, (B/O. THE DECEASED SIJU VARGHESE)** **4. SIJI.M.V,AGED 30 YEARS, MOIDU QUARTERS,THALAPUZHA P.O, MANANTHAVADY TALUK,WAYANAD, (S/O. THE DECEASED SIJU VARGHESE)** **BY ADV.SMT.CELINE JOSEPH** **RESPONDENT/RESPONDENT :** **THE BRANCH MANAGER, KERALA STATE INSURANCE DEPARTMENT,IIND FLOOR, THANSA COMPLEX,NEAR MUNICIPAL BUS STAND KANNUR. (INSURE OF THE JEEP BEARING NO.KL 13-E-1660)** **BY GOVERNMENT PLEADER SRI. SYHAMJIRAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-12-2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **C.T.RAVIKUMAR & A.MUHAMED MUSTAQUE, JJ.** ========================= ## **M.A.C.A.No.1924/2010** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 6[th] day of December, 2017 ## **J U D G M E N T** ## **C.T.Ravikumar, J.** 1. The appellants, who are the parents and siblings of the victim of the accident involved in this case, comes up in appeal, on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Kalpetta, as per the award in O.P. (MV).No.493 of 2006. They moved the said claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the death of one Siju Varghese, the son of the appellants 1 and 2 and the brother of appellants 3 and 4. The accident in question had occurred on 21.2.2006. The deceased was riding the motorcyle bearing Reg.No.KL-13/M-7826 and at the place of accident it was hit by the Jeep bearing Reg.No.KL-13-E1660, driven by the first respondent before the Tribunal. ``` MACA 1924/2010 ``` ## **-:2:-** Sri.Siju Varghese sustained serious injuries and enroute to the hospital he breathed his last. As against the claim of Rs. 25 lakhs, as per the impugned award, the Tribunal had granted an amount of Rs.5,24,700/- with interest at the rate of 5.7% per annum from the date of the petition till the date of realisation. The appellants seek for enhancement of the said quantum of compensation. 2. Heard. The only question that requires consideration is whether the appellants are entitled to get enhancement of the quantum of compensation. 3. The contention of the learned counsel appearing for the appellants is that the appellants were denied just compensation. It is their contention that the erroneous estimation of the monthly income and the wrong identification of the multiplier had resulted in such deprivation. That apart, it is contended that the quantum of compensation granted under the heads 'loss of love and affection' and 'pain and suffering' and the amount granted towards funeral expenses are on the lower side. ``` MACA 1924/2010 ``` ## **-:3:-** It is also contended that no amount was granted towards 'loss of estate'. 4. Having heard the submissions and having perused the impugned award, we are of the view that an appellate interference is invited in the case on hand. Firstly, we will consider the question whether the Tribunal had properly identified the multiplier. Siju Varghese, the victim was aged 29 years at the time of the accident. On a perusal of the impugned judgment, it is evident that the Tribunal had identified the multiplier by taking the average age of the parents. The said method adopted by the Tribunal to identify the multiplier is patently erroneous. In the light of the decision of the Hon'ble Supreme Court in **Sarla Verma (Smt) and others v. Delhi Transport Corporation and another [2010 (2) KLT 802 (SC)],** which got confirmance with the decision of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and Ors. [2017 (4) KLT 662 (SC)]** , the multiplier to be adopted with reference to the age of the deceased. Going ``` MACA 1924/2010 ``` ## **-:4:-** by the table in **Sarla Varma's** case, for the age group of 26 to 30, the multiplier applicable is '17'. Since the deceased was aged 29, the multiplier applicable in this case is 17. The Tribunal had wrongly adopted the multiplier as 13. 5. Now, we will consider the question whether the fixation of monthly income for calculation purpose invites interference. The learned counsel appearing for the appellants submitted that for the purpose of computing compensation, the monthly income of the deceased ought to have been taken as Rs.41,952/- as is evident from Ext.A10. For the purpose of computing compensation, the Tribunal had fixed the annual income of the deceased as Rs.57,600/-. We have perused Ext.A10 which is the pay slip for the month of September, 2005. Ext.A8 is the income certificate of the deceased, which was proved though PW2, the Manager-cum-Human Resource of the company by name Astra Zeneca where the deceased was working. A perusal of the said certificate would reveal ``` MACA 1924/2010 ``` ## **-:5:-** that the net pay shown therein was by taking into account certain components which could not be taken into consideration for the purpose of calculating monthly income for the purpose of computing compensation for loss of dependency. Out of the amount of Rs.41,952/-, which is shown as the net monthly income, Rs.38,936/was given to the deceased towards incentive. Certainly, the said figure as a matter of fact, incentive itself cannot form a permanent component in a monthly pay packet. Taking into account Ext.A8, we are of the view that an amount of Rs.6,720/- can be fixed as the monthly income of the deceased. Now, the question is whether any addition has to be made to the said monthly income. In the light of the decision of the Hon'ble Apex Court in **Pranay Sethi's** case _(supra),_ where the deceased had a permanent job and was below the age of 40 years, an addition of 50% of actual salary, shall be made for calculating compensation. Ext.A8 certificate together with the evidence of PW2 would reveal that the deceased Saji ``` MACA 1924/2010 ``` ## **-:6:-** Varghese was having a permanent job. We have found that he was earning an amount of Rs.6,720/- by way of salary. In such circumstances, 50% has to be added to the said income. At the same time, taking into account the fact that the deceased was a bachelor, in the light of the dictum laid down by the Apex Court in **Sarla Varma's** case _(supra_ ) _,_ 50% of the income has to be deducted towards personal and living expenses of the deceased, which he would have incurred had he been alive. Taking into account the aforesaid factors, the compensation for loss of dependency has to be reassessed. On such reassessment, the amount payable as compensation for loss of dependency will be Rs.10,28,160/- (10080 x 12 x 17 / 2). The Tribunal had already granted an amount of Rs.4,99,200/- under that head. After subtracting the said amount, the appellants are entitled to get an amount of Rs.5,28,960/- additionally. In addition to the said amount, the appellants are also entitled to get enhancement of compensation under certain other heads. In the light of ``` MACA 1924/2010 ``` ## **-:7:-** the decision of the Apex Court in **Pranay Sethi's** case _(supra),_ the amount payable towards funeral expenses is Rs.15,000/- and an amount of Rs.15,000/- is payable as compensation for loss of estate. The Tribunal has granted only an amount of Rs.5,000/- towards funeral expenses. Therefore, the appellants are entitled to get an amount of Rs.10,000/- additionally under that head. As noticed before, no amount was granted by the Tribunal towards loss of estate. Hence, in the light of the decision of the Apex Court in **Pranay Sethi's** case _,_ the appellants are entitled to get an amount of Rs.15,000/- towards compensation for loss of estate. Towards loss of love and affection only an amount of Rs.10,000/- was granted. Evidently, the appellants are the parents and the siblings of the deceased Saji Varghese. Taking into account the relationship between the appellants and the deceased, we are inclined to grant an amount of Rs.30,000/additionally under that head. Towards compensation for pain and suffering, the Tribunal had granted an amount of ``` MACA 1924/2010 ``` ## **-:8:-** Rs.5,000/-. It is evident from the impugned judgment itself that Saji Varghese, the victim of the accident had breathed his last breath enroute to the hospital. It is thus clear that he must have experienced excruciating pain for some time. We are inclined to grant an amount of Rs.5,000/- additionally under that head. In the light of the assessment and reassessment made by us, the appellants are entitled to get an additional compensation of Rs.5,88,960/-. It is awarded. The said additional compensation shall carry interest at the rate of 8% per annum from the date of petition till the date of realisation. 6. As per the impugned award, the third respondent was directed to deposit the amount awarded. The third respondent had not challenged the fastening of liability to indemnify the insured owner of the offending vehicle. In such circumstances, the third respondent is directed to deposit the additional compensation along with interest thereon within a period of three months from the date of receipt of a copy of this judgment. ``` MACA 1924/2010 ``` ## **-:9:-** The appeal is disposed of as above. There will be no order as to costs. **Sd/-** **C.T.RAVIKUMAR, JUDGE** **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** ms