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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 31STDAY OF MAY 2024 / 10TH JYAISHTA, 1946 MACA NO. 2619 OF 2016 AGAINST THE AWARD DATED 22.12.2015 IN OP(MV) NO.1122 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/3RD RESPONDENT: THE ORIENTAL INSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI 18. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS/PETITIONERS: 1VARGHESE, S/O POULOSE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511. 2ELSA, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511. 3AAVILA, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511. 4EMILY, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511. 5MILAN, S/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511. BY ADV VINODE V. LUKA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARDON31.05.2024,ALONGWITHCO.158/2016,THECOURTONTHE SAME DAY DELIVERED THE FOLLOWING:
MACA No.2619 of 2016 & CO No.158 of 2016 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 31STDAY OF MAY 2024 / 10TH JYAISHTA, 1946 CO NO. 158 OF 2016 THE AWARD DATED 22.12.2015 IN OP(MV) NO.1122 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR CROSS OBJECTORS/RESPONDENTS/PETITIONERS: 1VARGHESE, AGED 64 YEARS, S/O POULOSE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. 2ELSA, AGED 30 YEARS, D/O VARGHESE ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. 3AVILA, AGED 26 YEARS, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. 4EMILY, AGED 24 YEARS D/O VARGHESE ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. 5MILAN, AGED 22 YEARS, S/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511. BY ADVS. VINODE V. LUKA SRI.RENJITH RAJAPPAN RESPONDENT/S: THE ORIENTAL INSURANCE COMPANY LTD. REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI- 682 018. BY ADV SRI.P.JACOB MATHEW THISCROSSOBJECTION/CROSSAPPEALHAVINGBEENFINALLYHEARDON 31.05.2024, ALONG WITH MACA.2619/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.2619 of 2016 & CO No.158 of 2016 3 J U D G M E N T Theaboveappealandcrossobjectionaredirectedagainst theawardinOP(MV)No.1122of2008onthefileofAdditional Motor Accidents Claims Tribunal, Thrissur. The 3rd respondent-Insurer is the appellantandtheclaimantsarethe cross objectors. Both are assailing the award; the Insurer on the ground of its excessive nature, and the claimants on its inadequacy. 2. On 21.07.2007, Smt.Alphosa, the wife of the 1st claimantandmotherofclaimants2to5,diedinaroadtraffic accident, while shewastravellinginKL-9/C-1919bus.Dueto the rash and negligent driving of the bus by the 2nd respondent, the bus hit against an electric post, whereby, Smt.Alphonsasufferedseriousinjuriesandsuccumbedtoit,on herwaytohospital. Shewasa48yearoldSchoolTeacherat the time of incident. Her legal heirs approached the Tribunal claiming compensation of Rs.30,00,000/- and the Tribunal awarded Rs.22,55,270/-, whichaccordingtotheInsurerison
MACA No.2619 of 2016 & CO No.158 of 2016 4 the higher side, but according to the claimants, it is on the lower side. 3. The 1st respondent was the owner of the offending bus,2ndrespondentwasitsdriverandthe3rdrespondentwas its Insurer. Respondents 1 and 2 were ex parte before the Tribunal.The3rdrespondentcontestedthecase,butadmitted the Policy as well as the incident. 4.NowthisCourtiscalledupontoanswerwhetherthere is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. 5. Heard learned counsel for the appellant/Insurer and learnedcounselforcrossobjectors/claimants. Learnedcounsel for the appellant would submit that the deceased was a 48 year old Teacher, and she was duetoretireafter8years.So themultipliertakenbytheTribunalas13,wasnotcorrectand thepropermultiplierwouldhavebeen‘8’.TheApexCourthas time and again deprecated the practice of applying split multiplier in the case of death of an employee prior to
MACA No.2619 of 2016 & CO No.158 of 2016 5 superannuation.So,thisCourtisoftheviewthatthemultiplier applied as 13 by learned Tribunal is not liable to be disturbed. 6. Learned counsel for the cross objectors/claimants would submit that though learned Tribunal accepted the monthly income of the deceased as per Ext.A1 salary certificate and 30% addition was given for future prospects also, deduction of ⅓ towards personal expenses cannot be justified as she was having 5 dependents including her husband. The claimants were her husband and four children. Theelderonewasagedonly22andtheyoungeronewasaged only 14 at the time of her death.Therewasnothingtoshow thatanyofherchildrenwereemployed/marriedatthetimeof incident so that they could not have been treated as her dependent. Without any materials to show that her children were not dependent on her, learned Tribunal could not be justified in treating only three of the claimants as her dependents so as to reduce ⅓ of her income towards her personal expenses. So, this Court is inclined to take all the
MACA No.2619 of 2016 & CO No.158 of 2016 6 cross objectors/claimants as her dependents so that only ¼ was liable to be deducted towards her personalexpenses.So her monthly income could have been taken as Rs.14,627/-. Whenlossofdependencyiscalculatedaccordingly,itwillcome to Rs.22,81,812/- (14,627x12x13). Learned Tribunal awarded Rs.20,28,270/- (15,60,208+4,68,062). On deducting that amount, the cross objectors are entitled to get enhanced compensation of Rs.2,53,542/- under the head loss of dependency. 7.Learnedcounselfortheappellantwouldpointoutthat towards funeral expenses, learned Tribunal awarded Rs.25,000/-,insteadofRs.15,000/-eligible,andso,theexcess amount has to be refunded. As per the decision National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680], the cross objectors/claimants were eligible to get only Rs.15,000/- under the head ‘funeral expenses’. So Rs.10,000/-is liable to be deducted from the amount awarded by the Tribunal under that head.
MACA No.2619 of 2016 & CO No.158 of 2016 7 8. Learned counsel for the cross objectors would submit that though Rs.1,00,000/- was claimed by them under the head‘lossofestate’,noamountwasawardedbytheTribunal. Based on Pranay Sethi’s case cited supra, the cross objectors/claimantsareeligibletogetRs.15,000/-andsothis Court is inclined to award that amount in their favour. 9. Towards loss of consortium, learned Tribunal awarded Rs.1,00,000/-, apart from Rs.1,00,000/- awarded under the head ‘loss of love and affection’, amounting Rs.2,00,000/- in total. Based on Pranay Sethi’s case cited supra, the cross objectors/claimantsareeligibletogetRs.40,000/-eachunder thehead‘lossofconsortium’,whichwillcometoRs.2,00,000/-. Sotheyarenoteligibletogetanyfurtherenhancementunder the head ‘loss of consortium/loss of love and affection’, than the amount already awarded by the Tribunal. 10.Learnedcounselfortheappellant wouldsubmitthat learned Tribunal failed to deduct income tax fromtheincome calculated for the deceased. As per the salary certificate, the
MACA No.2619 of 2016 & CO No.158 of 2016 8 annual income of the deceased was only Rs.1,80,024/-. The standarddeductioninthatfinancialyearwasRs.1,45,000/-for women. Apart from that if she was having other deductions towards deposits,housingloanetc.,shewasnotliabletopay income tax and so, this Court cannot find fault with the Tribunal for not deducting tax from the annual income ofthe deceased. Head of claim Amount awarded by the Tribunal Amount awarded in appeal Amounts deducted in appeal Difference to be drawn as enhanced compensation Loss of dependency Rs.20,28,270/- Rs.22,81,812/- Rs.2,53,542/- Funeral expenses Rs.25,000/- Rs.15,000/- Rs.10,000/- Loss of estate … Rs.15,000/- Rs.15,000/- Loss of consortium Rs.1,00,000/- Rs.2,00,000/- Loss of love and affection Rs.1,00,000/- Total Rs.10,000/- Rs.2,68,542/- Enhanced compensation is Rs.2,58,542/-(2,68,542 -10,000) 11. In the result, the cross objectors are entitled to get enhanced compensation of Rs.2,58,542/- after deducting the
MACA No.2619 of 2016 & CO No.158 of 2016 9 excessamountofRs.10,000/-awardedunderthehead‘funeral expenses’. 12. The appellant/Insurer is directed to deposit the enhanced compensation of Rs.2,58,542/- (Rupees Two Lakh Fifty Eight Thousand Five Hundred and Forty Two only) with interest @ 9% per annum, from the date of petition till the date of deposit, before the Additional Motor Accidents Claims Tribunal,Thrissur,withinaperiodoftwomonthsfromthe date of receipt of a copy of this judgment. Learned Tribunal shall disbursethatamounttocrossobjectors1to5/claimants1to5 inequalshare,afterdeductingtheliabilitiesifanytowardstax, balance court fee, legal benefit funds etc. Theappealandcrossobjectionareallowedinparttothe extent as above and no order is made as to costs. Sd/- SOPHY THOMAS JUDGE DSV/-