Partly allowed

Omana.P.K. and Others v. Baiju and Others

Kerala HC20 Nov 2013MACA/933/2011

Case brief

AI extract

What is this about?

This appeal challenged the quantum of compensation awarded for a motor accident death. The High Court recalculated loss of dependency applying future prospects, enhanced compensation for loss of consortium and love and affection based on the victim's age and the mental condition of the children, and directed the insurance company to deposit the additional amount.

What did the court decide?

The appeal was disposed of with modification; the appellants are entitled to an additional compensation of Rs.2,02,881/- with interest, directed to be deposited by the insurance company.

Omana.P.K. and Others Vs Baiju and Others — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935

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MACA.No. 933 of 2011 ( )

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OP(MV) NO. 1736/2004 OF ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 20/10/2010

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PETITIONERS/CLAIMANTS :

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1. OMANA P.K., W/O. LATE GOPALKRISHNAN, AGED 45 YEARS, B-42, TELECOM QUARTER PANAMPILLY, NAGAR, KOCHI-36

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AT PRESENT RESIDING AT PANAMPILLY NAGAR, KOCHI-36.

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2. HEMA G. KRISHNAN, D/O.LATE GOPALAKRISHNAN

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AGED 24 YEARS, B-42, RELECOM QUARTER PANAMPILLY NAGAR, KOCHI-36 MOTHER AND REPRESENTED BY GUARDIAN

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OMANA P.K.

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3. HEMANTH G. KRISHNAN, S/O. LATE GOPALAKRISHNAN, AGED 20 YEARS, B-42 TELECOM QUARTER, PANAMPILLY NAGAR, KOCHI-36.

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MOTHER AND REPRESENTED BY GUARDIAN OMANA P.K

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BY ADVS.SRI.SHAJI P .CHALY SMT.K.S.SUMITHA SRI.R.SANJITH SMT.LIJITTA G. MATHEW

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RESPONDENTS / RESPONDENTS :

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1. BAIJU V., S/O. VISWAMBARAN, ILLATHUVELI VEEDU, WARD NO.3,

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PALLIPURAM P.O., PALLIPURAM PANCHAYATH CHERTHALA - 688 541.

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2. BHASKARAN M.K., 3/270, MANJANAVELI, THYKKATTUSSERY P.O.,, CHERTHALA TALUK-688 528.

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...2/-

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MACA.No. 933 of 2011 ( ) -2-

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3. NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY THE DIVISIONAL MANAGER ERNAKULAM-682 035.

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POLICY NO.501600/31/03/6313414.

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4. UNITED INSURANCE COMPANY LTD., REPRESENTED BY THE DIVISIONAL MANAGER ERNAKULAM, KOCHI - 682 011

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POLICY NO. 101502/31/03/10471.

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R3 BY ADV. SRI.RAJAN P. KALIYATH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.

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M.A.C.A. No.933 of 2011

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=================

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Dated this the 20^th day of November, 2013

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J U D G M E N T

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S. Siri Jagan, J .

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The appellants are the wife and children of deceased Gopalakrishnan. Gopalakrishnan died in an accident caused by the negligent driving of a vehicle owned and driven by respondents 1 & 2 and insured with the 3^rd respondent. The appellants filed O.P.(M.V.) No.1736/2004 before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of their bread winner.

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The Tribunal, after finding negligence on the part of the driver of the vehicle awarded compensation under various heads as follows:

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Head	Amount awarded
Compensation for loss of
dependency and estate	1320000
Transportation expenses	2000
Loss of estate	5000
Funeral expenses	3000
Damages to clothing and articles	0
Medical expenses	0

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M.A.C.A. No.933 of 2011

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-2-

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Head	Amount awarded
For pain and sufferings	5000
Compensation for loss of love and affection	15000
Loss of consortium	10000
Total	1360000
Claim is limited to Rs.30,00,000/-

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Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal claiming enhanced compensation. The accident was on 4.5.2004 and the deceased was 42 years old at that time.

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He was an employee of the B.S.N.L., drawing a monthly salary of Rs.12,602/-. The Tribunal, after deducting a probable amount towards income tax fixed the monthly income as Rs.11,000/-. Taking the multiplier as 15 and deducting 1/3^rd towards personal expenses of the deceased, the Tribunal awarded a total compensation of Rs.13,20,000/- towards loss of dependency. Appellants contend that this is on the lower side because as per the decision in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] , the Tribunal ought have added

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-3-

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M.A.C.A. No.933 of 2011

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30% for future prospects of the deceased, which the Tribunal had not done. It is submitted that at the time of death of her husband, the 1^st appellant was aged only 38 years, despite which the Tribunal awarded only Rs.10,000/- towards loss of consortium. Although the 2^nd appellant is a mentally retarded child and the 3^rd respondent was also a minor at the time of accident, the Tribunal awarded only Rs.15,000/- towards loss of love and affection, which is also on the lower side. It is submitted that the compensation awarded for pain and sufferings and loss of estate are also on the lower side. The appellants seek enhancement under all heads.

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On the other hand, the learned counsel for the insurance company submits that the Tribunal has considered every aspect of the matter in the right perspective and awarded just and proper compensation. He particularly points out that for a person aged 42 years, the multiplier fixed by the Hon'ble Supreme Court in Sarla Verma's case (supra) is only 14, whereas the Tribunal has

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M.A.C.A. No.933 of 2011

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adopted 15. Therefore, according to him, if at all the Tribunal has erred, that error is only in favour of the appellants and not against them. He therefore argues for sustaining the compensation fixed by the Tribunal.

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We have considered the rival contentions in detail.

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In the decision in Sarla Verma's case (supra), the Hon'ble Supreme Court has held that in the case of salaried employees the actual salary drawn should be increased by 30% for future prospects. But at the same time the Hon'ble Supreme Court held that if the salary certificate produced does not show the income tax deducted, 20% has to be deducted towards income tax as well. As rightly pointed out by the counsel for the insurance company the multiplier applicable is only 14 and not 15. If the compensation for loss of dependency is recalculated on the basis of the above inputs, the total amount of compensation for loss of dependency would be Rs.14,67,881/- (12602 x 12 x 14 x 2/3 x 130% x 80%) instead of Rs.13,20,000/-. The difference

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M.A.C.A. No.933 of 2011

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would be Rs.1,47,881/-.

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Since the 1^st appellant was only 38 years old at the time of death of her husband and there was practically no prospects of a remarriage, we are inclined to enhance the compensation for loss of consortium to Rs.40,000/- from Rs.10,000/-. Likewise, for loss of love and affection of minor children, one of whom is a mentally retarded person, we are inclined to fix the same as Rs.30,000/- instead of Rs.15,000/-. The compensation for pain and sufferings of the deceased is enhanced to Rs.10,000/- and compensation for loss of estate is also enhanced to Rs.10,000/-. We are not inclined to enhance compensation under other heads since we are of opinion that just and proper compensation has been awarded under the other heads. Consequently the appellants would be entitled to get an additional compensation of Rs.2,02,881/- over and above what has been awarded by the Tribunal. This amount would carry interest at the rate of 9% per annum from the date of the claim petition till date of payment. The 3^rd respondent

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M.A.C.A. No.933 of 2011

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insurance company is directed to deposit that amount also within two months from today.

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With the above modification of the impugned award, the appeal is disposed of.

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Sd/-

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S.SIRI JAGAN, JUDGE

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Sd/-

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K.RAMAKRISHNAN, JUDGE

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Shg/

Omana.P.K. and Others v. Baiju and Others

Case brief

What is this about?

What did the court decide?

Omana.P.K. and Others v. Baiju and Others

Case brief

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What did the court decide?

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