## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941**
## **MACA.No. 1289 of 2014**
**AGAINST THE AWARD IN OPMV 1358/2005 of ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY DATED 24-07-2013**
## **APPELLANTS:**
**1 V.M.MARIYAMMA, AGED 68 YEARS, W/O.MATHAI, VALLATHKARAN HOUSE, POYYAM MALA, P.O.CHETTIYAMPARAMBA, KANNUR DISTRICT. 2 BEENA JOSE, AGED 32 YEARS, D/O.PETER, VALLATHKARAN HOUSE, POYYAM MALA, P.O.CHETTIYAMPARAMBA, KANNUR DISTRICT. 3 JISNA JOSE, AGED 10 YEARS (MINOR) D/O.JOSEKUTTY V.M., VALLATHKARAN HOUSE, POYYAM MALA, P.O.CHETTIYAMPARAMBA, KANNUR DISTRICT. 4 JILNA JOSE, AGED 6 YEARS (MINOR), D/O.JOSEKUTTY V.M., VALLATHKARAN HOUSE, POYYAM MALA, P.O.CHETTIYAMPARAMBA, KANNUR DISTRICT. (PETITIONERS NO.3 AND 4 ARE MINORS REPRESENTED BY THEIR MOTHER AND GUARDIAN, 2ND PETITIONER).**
**BY ADV. SRI.M.V.AMARESAN**
## **RESPONDENT:**
**THE NEW INDIA ASSURANCE COMPANY LTD., ARISTO COMPLEX, MAIN ROAD, MAHE (INSURER), PIN - 685 021.**
## **BY ADV. SMT.M.HEMALATHA**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **M.A.C.A.No.1289 of 2014**
## **--------------------------------------------**
## **JUDGMENT**
The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the quantum of compensation granted by the Tribunal.
2. One Jose Kutty died in a motor accident took place on 30.01.2003. He was aged 31 years. A sum of Rs.10,00,000/- was claimed in the proceedings by way of compensation. As against the said claim, on a consideration of materials on record, the Tribunal granted a sum of Rs.9,64,496/-. It is aggrieved by the inadequacy of said compensation that the claimants have come up in this appeal.
3. Heard the learned counsel for the appellants as also the learned counsel for the insurer.
4. The learned counsel for the appellants pointed out that the deceased was working in a construction company,viz, M/s.K.K. Builders as a work supervisor and he was drawing a sum of Rs.5,000/- per month. It was pointed out by the counsel that the Tribunal has reckoned the monthly income of the deceased only at Rs.4,500/- despite the evidence tendered by the employer of the
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deceased. It was also pointed out by the learned counsel that the multiplier to be applied for computing the compensation payable to the claimants for loss of dependency is '17' and the Tribunal has applied only the multiplier of '16' in its place. It was also pointed out by the learned counsel that in so far as the deceased was on an employment, 50% percentage of his income should have been added towards future prospects while computing the compensation for loss of dependency, in the place of 30% added by the Tribunal for the said purpose. It was also pointed out by the learned counsel that the compensation granted under other heads to the claimants are also grossly inadequate.
5. _Per contra,_ the learned counsel for the insurer of the vehicle involved in the accident pointed out that compensation was claimed against the owner, driver and insurer of the vehicle in which the deceased was travelling at the time of accident, as the death occurred when the said vehicle overturned due to the negligence of its driver. It was pointed out by the learned counsel that the vehicle at the relevant time had only a policy covering the risk of the employees of the owner under the Employees' Compensation Act and the Tribunal, in the circumstances, should have worked out the compensation payable to the claimants under
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the Employees' Compensation Act and the compensation now granted by the Tribunal is far above the compensation payable to the claimants under the Employees' Compensation Act.
6. I have considered the contention raised by the learned counsel on either side. It is seen that though the contention advanced by the learned counsel for the insurer was raised by them before the Tribunal, the Tribunal did not accept the same and the insurer was directed to satisfy the award holding that the policy of the insurance covers the risk of the deceased as well. There is no appeal by the insurer. In so far as there is no appeal by the insurer, I do not think that the insurer is entitled to advance the said contention again in the appeal preferred by the claimants.
7. Coming to the correctness of the quantum of compensation fixed by the Tribunal, it is seen that Ext.A9 salary certificate produced by the claimants to prove the income of the deceased only recites that he was drawing a sum of Rs.2,000/- per month. It is of course stated therein that the employer was disbursing to the deceased Dearness Allowance also at the rate of Rs.100/- per day, for the working days. Going by Ext.A9, the monthly income of the deceased would come approximately to Rs.4,500/- only. The Tribunal, in the circumstances, cannot be found
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fault with for having reckoned the said amount as the monthly income of the deceased for the purpose of computing the compensation payable to the claimants for loss of dependency. In terms of the judgment of the apex Court in **Sarla Verma & others**
**v. Delhi Transport Corporation & others** [(2009) 6 SCC 121] as affirmed by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662], the multiplier to be applied for the purpose of computing the compensation payable for loss of dependency for persons upto the age of 30 is '17' and for persons above the age of 30 and upto the age of 35 is '16'. It was conceded by the learned counsel for the claimants that the deceased had completed 30 years. The argument advanced by the learned counsel is that the deceased though crossed the age of 30, he did not complete 31 years and therefore, the Tribunal should have applied the multiplier '17' in the place of '16'. In other words, according to the learned counsel, the multiplier to be applied for persons upto the age of 31 is '17'. I cannot agree. There is also no force in the contention raised by the learned counsel for the appellants that 50% of the income of the deceased should have been added towards future prospects. 50% is contemplated only for persons on permanent employment, in terms of of the judgment of
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the Supreme Court in **Pranay Sethi** . It is seen that the Tribunal has added only 30% of the income towards future prospects while working out the compensation for loss of dependency. In the light of the decision of the apex Court referred to above, 40% of the income of the deceased should have been added towards future prospects. If compensation payable to the claimants for loss of dependency is worked out in this fashion, the amount would come to Rs.9,07,200/(Rs.4,500x140/100x16x12x3/4). In so far as the Tribunal has granted only a sum of Rs.8,42,496/-, the claimants would be entitled to a further sum of Rs.64,704/- under that head.
8. Coming to the remaining heads of compensation, it is seen that no compensation has been granted by the Tribunal for loss of estate. In the light of the decision of the Apex Court in **Pranay Sethi** a sum of Rs.15,000/- should have been granted by the Tribunal towards compensation for loss of estate. It is also seen that only a sum of Rs.20,000/- is seen granted towards compensation for loss of love and affection. In the light of the decision of Apex Court in **Magma General Insurance Company Ltd. v. Nanu Ram and others** [2018 ACJ 2782], according to me, the Tribunal should have granted a sum of Rs.40,000/- to the mother of the deceased towards filial consortium and Rs.40,000/-
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each to the children towards compensation for love and affection. The total compensation payable to them would, therefore, come to Rs.1,20,000/-. As the Tribunal has granted only sum of Rs.20,000/under that head, the claimants are entitled to a further sum of Rs.1,00,000/- under those heads. Thus, the total additional compensation payable to the claimants would come to Rs.1,79,704/-.
9. It is seen that the wife of the deceased is entitled to only sum of Rs.40,000/- by way of compensation for loss of consortium. The Tribunal has granted in its place, a sum of Rs.75,000/-. In other words, Rs.35,000/- granted by the Tribunal under this head is in excess. The said excess compensation is, therefore, to be deducted from the additional compensation found payable to the claimants to arrive at the net additional compensation payable. If deduction is made as indicated above, the net additional compensation payable to the claimants would come to Rs.1,44,704/-
In the result, the appeal is allowed and the claimants are granted a sum of Rs.1,44,704/- towards additional compensation. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. The parties
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are at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof.
**Sd/-**
**P.B.SURESH KUMAR JUDGE**
