Vijayalakshmi and others v. Ashraf and others

**MACA NO. 610 OF 2011** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943 MACA NO. 610 OF 2011** ## **AGAINST THE JUDGMENT IN OP(MV) 783/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONER:** - 1 VIJAYALAKSHMI, W/O.RAJAN @ BEER BAHADUR SINGH, RESIDINT AT KOORCHAM VEETIL HOUSE, CHEMBOOTHARA,, THRISSUR DISTRICT - 2 THULASI @ SREEJAKUMARI D/O.RAJAN @ BEER BAHUDUR SINGH, -DO- - 3 SINI D/O.RAJAN BEER BAHADUR SINGH -DO- - 4 SEENA, D/O.RAJAN BEER BAHADUR SINGH -DO- BY ADV SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 ASHRAF, S/O.ABOOBACKER, KALATHIL HOUSE,MANAKKAPADAM,WADAKKANCHERY P.O, PALAKKAD DISTRICT – 678 683 - 2 THE NEW INDIA ASSURANCE CO-LTD T.B.ROAD, PALAKKAD – 6578 001. - 3 PAILY, S/O.CHACKO R/A.AT THEKKE PUTHENPURAYIL HOUSE,PANACHERY,, PANACHERY,VANIYAMPARA, THRISSUR – 680 652. - 4 ELIAMMA, W/O.PAILY RESIDING AT-DO- **MACA NO. 610 OF 2011** **2** THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 8.4.2019 IN I.A. 1/2019 BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.LAL K.JOSEPH SRI.KKM.SHERIF THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 610 OF 2011** **3** ## **JUDGMENT** The appellants were the petitioners in O.P (MV) No.783/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents 1,3,4 and 5 before the Tribunal. The 2nd respondent before the Tribunal had died during the pendency of the case and his legal representatives are respondents 3 and 4 before this Court. The parties are, for the sake of convenience referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of Rajan @Bahadur Singh (deceased) – the husband of the 1[st] petitioner and the father of the petitioners 2 to 4. 3. It was the case of the petitioners that: on **MACA NO. 610 OF 2011** **4** 15.1.2004, while the deceased was riding his scooter bearing Reg. No.KL-8C/7514 (scooter) through the Thrissur-Palakkad National Highway, a jeep bearing Reg. No.KL-11/A 8874 (jeep) driven by the 2[nd ] respondent in a rash and negligent manner hit against the scooter of the deceased. The deceased was treated at the Thrissur Heart Hospital, and thereafter, at the Jubilee Mission Hospital, Thrissur. However, his life could not be saved and he expired on 27.1.2004. The jeep was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was a bus conductor in the Kerala Agricultural University and was drawing a monthly salary of Rs.8,573/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.11,79,092/- which was limited to Rs.11,00,000/-. 4. The respondents 1 and 2 filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the deceased. Nevertheless, it was admitted **MACA NO. 610 OF 2011** **5** that the jeep had a valid insurance coverage with the 3[rd] respondent. Therefore, it was contended that, even if the 1[st] respondent was liable to pay the compensation amount, the 3[rd] respondent was liable to indemnify the 1[st] respondent. 5. The 3[rd] respondent filed a written statement adopting the very same contentions as that of the respondents 1 and 2. It was also stated that the compensation claimed by the petitioners was excessive. 6. The petitioners produced and marked Exts.A1 to A11 in evidence. The 3[rd] respondent produced and marked Exts. B1 and B2 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to realise an amount of Rs.5,49,000/- with interest and costs from the 3[rd] respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. **MACA NO. 610 OF 2011** **6** 9. Heard; Sri.A.R.Nimod, the learned counsel appearing for the appellants/petitioners, Sri.Lal K.Joseph, the learned counsel appearing for the 2[nd] respondent – insurer and Sri.P.V.Chandramohan, the learned counsel appearing for the respondents 3 and 4. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 11. It is proved by Ext.A1 final report filed by the Peechi Police in Crime No.13/2004 that the accident occurred due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 2[nd] respondent was his driver and the 3[rd] respondent was the insurer of the jeep. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st ] respondent. ## **Notional income** 12. The petitioners had stated in the claim petition that the deceased was a bus conductor in the Kerala **MACA NO. 610 OF 2011** **7** Agricultural University, Thrissur and was drawing a monthly salary of Rs.8,573/-. In order to substantiate their contention, they produced and marked Ext.A11 salary certificate issued by the Registrar of the University. In the said certificate, it was stated that the salary of the deceased as on the date of his death was Rs.8,573/- with a basic salary of Rs.5,625/- and that he had a remaining service of 7 years, 2 months and 4 days . It was also stated that as on the date of the retirement of the deceased on 31.3.2011, he would have drawn a basic salary of Rs.12,250/-. Nonetheless, the Tribunal for the reason that the deceased would have retired after seven years, two months and four days, adopted the split multiplier method and fixed the salary of the deceased at Rs.5,625/- till the age of his retirement and, thereafter, at Rs.3,000/- per month. 13. The respondents had not contended in the written statement that the split multiplier method had to be adopted since the deceased had a little more than 7 **MACA NO. 610 OF 2011** **8** years of service. The Tribunal on its own volition adopted the split multiplier method and fixed the salary of the deceased as stated above. 14. The Hon'ble Supreme Court in **Puttamma v. K.L.Narayana Reddy & Another** [2014 (1) KLT 738] has held that the split multiplier method should not be adopted by the Tribunal/Courts unless for cogent reasons. 15. In the instant case, as the deceased had more than seven years of service and it is certified in Ext.A11 that he would have drawn a salary of Rs.12,250/- at the time of his retirement. The course adopted by the Tribunal by adopting the split multiplier method is erroneous and wrong. I do not find any cogent reason to adopt the split multiplier method, especially because the deceased had more than 7 years of service. 16. In the above situation, I am inclined to accept the salary of the deceased as certified in Ext.A11, however after deducting the income tax payable by the deceased as laid down in **Kalpana Rajan and others v. Tamil Nadu** **MACA NO. 610 OF 2011** **9** **State Road Transport Corporation** [(2015) 2 SCC 764]. 17. As per the income tax slab in the year 2004, 10% of the amount above 50,000/- had to be deducted towards the income tax liability of the deceased. Therefore, taking into account the total annual salary of the deceased at Rs.67,500/- (i.e, Rs.5,625x12 months) and after deducting 10% towards income tax on the income above Rs.50,000/- ( I.e Rs.17,500-10%), I hold that the deceased's net annual salary was Rs.65,750/- i.e, 5,480/- per month. ## **Multiplier** 18. The deceased was aged 49 years at the time of his death. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121] , the relevant multiplier is ‘13’. ## **Dependents of the deceased** 19. The petitioners were the wife and children of the deceased, who are four in number. As laid down in **Sarla Verma (supra) and National Insurance Company** **MACA NO. 610 OF 2011** **10** **Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], 1/4[th] of the income of the deceased has to be deducted towards the personal living expenses of the deceased, instead of 1/3rd deducted by the Tribunal in the impugned award. ## **Future prospects** 20. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 49 years at the time of his death and the relevant multiplier being ‘13’, I hold that the petitioners are entitled to future prospects at 30% on the compensation for loss due to dependency because the deceased was a permanently employed person. ## **Loss due to dependency** 21. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.5,480/-, the multiplier at '13', the future prospects at 30% and after deducting 1/4[th] of the total compensation towards personal living expenses of the deceased, I re-fix the compensation for loss due to dependency at **MACA NO. 610 OF 2011** **11** Rs.8,33,508/- instead of Rs.4,62,500/- awarded by the Tribunal. ## **Conventional heads of compensation** 22 **.** In clause (viii) of paragraph 61 of the **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, 'Funeral expenses', 'Loss of estate' and 'Loss of consortium' at Rs.15,000/-, Rs.15,000 and Rs.40,000/respectively. 23. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- under the head ‘funeral expenses’. Therefore, I enhance the compensation under the said head by a further amount of Rs.10,000/-. Similarly, the Tribunal has awarded only an amount of Rs.10,000/- towards 'loss of estate'. Accordingly, I enhance the compensation under the said head by a further amount of Rs.5000/-. **MACA NO. 610 OF 2011** **12** 24. The Tribunal has awarded only an amount of Rs.10,000/towards compensation for 'loss of consortium'. In view of the well settled principles in **Pranay Sethi,** I hold that each of the petitioners are entitled to Rs.40,000/- each under the above said head. Accordingly, I enhance the compensation under the head 'loss of consortium' by a further amount of Rs.1,50,000/- . ## **Loss of love and affection** 25. It is seen that the Tribunal has awarded an amount of Rs.10,000/- under the head ‘loss of love and affection. 26. In **New Insurance Assurance Co. Ltd v. Somwati & Others** [(2020) (9) SCC 644], the Hon'ble Supreme Court has held that once the compensation under the head ‘loss of consortium is awarded, no amount can be awarded under the head 'loss of love and affection', otherwise it will amount to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- awarded under the head ‘loss of love and affection’.. **MACA NO. 610 OF 2011** **13** ## **Pain and suffering** 27. As the deceased lost his life 12 days after the accident, I find that the amount of Rs.7,000/- awarded towards ‘pain and suffering' is reasonable and just. Similarly, the amount of Rs.44,500/- awarded towards medical expenses is just and reasonable. Therefore, I confirm the amount awarded under the said head. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **MACA NO. 610 OF 2011** **14** **==> picture [455 x 375] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts modified<br>the Tribunal (in and recalculated by<br>.No rupees) this Court<br>1 Transport – -<br>2. Funeral expenses 5,000 15,000<br>3. Pain and suffering 7,000 7,000<br>4. Loss of estate 10,000 15,000<br>5. Loss of consortium 10,000 1,60,000<br>6. Medical expenses 44,500 44,500<br>7. Loss of dependency 4,62,500 8,33,508<br>8. Loss of love and affection 10,000 ----<br>Total 5,49,000 10,75,008<br>======== =======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.5,26,008/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit and a cost of Rs.4,000/-. The 2[nd] respondent/insurer is ordered to deposit the enhanced compensation awarded in the appeal with interest and **MACA NO. 610 OF 2011** **15** costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants/petitioners in the ratio of 40:20:20:20, respectively and in accordance with law. All pending interlocutory applications will stand closed. ma/13.09.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**