Dismissed

United India Insurance Co. Ltd. v. Shiney Jayan and Others

Kerala HC11 Nov 2014MACA/532/2010

Case brief

AI extract

What is this about?

High Court of Kerala dismissed appeals challenging the compensation award of the Motor Accidents Claims Tribunal. The court examined the quantum based on loss of dependency and other heads, finding the Tribunal's revised multiplier and overall assessment did not warrant interference.

What did the court decide?

Appeals dismissed; award of Rs. 14,65,000/- confirmed; no costs.

United India Insurance Co. Ltd. Vs Shiney Jayan and… — Motor Accident Claims | Kerala HC (2014)

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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 THOTTATHIL B.RADHAKRISHNAN &

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THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH

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TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936

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MACA.No. 532 of 2010

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AGAINST THE AWARD IN OPMV 3675/1999 of MOTOR ACCIDENTS CLAIMS TRIBUNAL.,ERNAKULAM DATED 20-08-2008

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APPELLANT/3RD RESPONDENT:

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UNITED INDIA INSURANCE CO. LTD. REGIONL OFFICE, ERNAKULAM.

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BY ADV. SRI.RAJAN P.KALIYATH

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RESPONDENTS/CLAIMANTS:

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SHINEY JAYAN, W/O. LATE JAYAN VARGHESE AVERAPPETTU HOUSE, THATTEKKADU POST, PALAMATTOM KARA, KOTHAMANGALAM REP. BY POWER OF ATTORNEY HOLDER SUNNY GEORGE, AGED 38 YEARS AVERAPETTA, HOUSE THATTEKKAD, PALAMATTOM KARA.

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JAIN MARIYA JAYAN, AGED 18 YEARS, D/O. LATE JAYAN VARGHESE, AVERAPPETTA HOUSE THATTEKKADU REP. BY NEXT FRIEND SUNNY GEORGE AVARAPPETTA HOUSE, THATTEKKADU POST, PALAMATTOM KARA, KOTHAMANGALAM.

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A.V.VARGHESE, AVERAPPETTA HOUSE, THATTEKKADU POST, PALAMATTOM KARA, KOTHAMANGALAM.

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ELI VARGHESE, W/O. VARGHESE, AVERAPPETA HOUSE, THATTEKKADU POST, PALAMATTOM KARA, KOTHAMANGALAM.

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R1 & 2 BY ADV. SRI.PAULSON THOMAS

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-11-2014, ALONG WITH MACA. 363/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOTTATHIL B. RADHAKRISHNAN &

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BABU MATHEW P. JOSEPH, JJ.

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

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M.A.C.A.Nos. 532 of 2010 & 363 of 2012

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============================== Dated this the 11^th day of November, 2014

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JUDGMENT

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Thottathil B. Radhakrishnan, J.

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These two appeals arise from an award passed by a Motor Accidents Claims Tribunal. One appeal is filed by the claimants, that is to say, the widow and posthumous daughter and the parents of Jayan Varghese, who died as a result of road traffic accident on 25.3.1998. The other appeal is by the Insurer which was directed by the Tribunal to satisfy the award.

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There is no dispute as to the accident or liability in that regard. Insurance coverage is also not disputed. The only dispute is in relation to the quantum of compensation fixed.

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MACA 532/10 & 363/12

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The material evidence on record, including different certificates showed that the deceased went abroad after commendable performance in SSLC and Pre-degree and thereafter, he underwent course in Nursing, including General nursing and Oldage Nursing in Vienna. The training period of such course spread over for a period of three years. He was in Vienna and had the assistance and support of the siblings who were already there. He aspired to be in the nursing field in that Nation. Therefore, he married the first claimant who is a qualified nurse. The further evidence is that after marriage they were making all preparation to move out to Vienna and the accident occurred on 25.3.1998 resulting in the death of Jayan and consequently, the widowhood of the first claimant, who was then around six months pregnant. She delivered a girl child on 10.6.1998. That child was impleaded as additional

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MACA 532/10 & 363/12

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applicant during the proceedings before the court below. By the time the claim petition had come up for trial, the widow had remarried. The daughter stood without having ever seen her biological father.

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The claim for loss of dependency was calculated on the basis of loss of earnings, attempted to be proved through documents, particularly Ext.A21 showing that the earnings of a Nurse in Vienna would be around 42,000 Indian rupees at the entry cadre and that the deceased was in the anvil of getting employed. The Tribunal was not impressed to hold that such amount should be made the basis of calculating the loss of dependency. It, therefore, found on a fair estimate that since Jayan was actually not employed and whose prospects for employment were to be considered, an amount of `10,000/- being taken as the monthly income would be just and reasonable. Having heard the learned counsel for the parties, we do not see any

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MACA 532/10 & 363/12

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ground to disagree with that finding of the Tribunal. On the basis of such determination of the monthly income for the purpose of calculating loss of dependency, the Tribunal applied multiplier 18 after deducting 1/3^rd of the annual income. Following the decision in Sarla Verma v. Delhi Transport Corporation [2010(2)KLT 802(SC)], the appropriate multiplier would be 17. This means that the compensation towards loss of dependency which is fixed by the court below at 14,40,000/- would get reduced to 13,60,000/-.

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With that, we are of the view that amounts granted towards compensation on different other heads are inadequate and the amounts determined and stated in paragraph 11 of the impugned award deserve to be modified. On a fair assessment in that regard, an amount of 10,000/- is due as compensation for pain and sufferings. 15,000/- is due to the first petitioner-widow for loss of

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MACA 532/10 & 363/12

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consortium. An amount of 30,000/- is due to the second petitioner-daughter towards compensation for loss of love and affection. An amount of 10,000/- each (total 20,000/-) is due towards compensation for loss of love and affection to petitioners 3 and 4, who are parents of the deceased. An amount of 10,000/- is due towards loss of estate. An amount of 15,000/- can be reasonably fixed as compensation towards funeral expenses for the relevant year, having particular regard to the decision in **<u>Rajesh v. Rajbir Singh</u> [(2013) 9 SCC 54]** . An amount of 5,000/is payable for transportation from the site of the accident to the local hospital and then, to the Medical Trust Hospital in Ernakulam and then, for postmortem and then back to Kothamangalam where the funeral took place. Taking all these amounts into consideration, the escalation that would come is `14,65,000/-. That is nothing but what would get reduced by modifying the multiplier while determining the

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MACA 532/10 & 363/12

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loss of dependency. This means that the net result of the aforesaid discussion is that the award of the court below granting compensation of `14,65,000/- does not warrant interference in these appeals.

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In the result, these appeals are dismissed. No costs.

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Sd/- THOTTATHIL B. RADHAKRISHNAN JUDGE

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Sd/BABU MATHEW P. JOSEPH JUDGE

ks.

True copy

P.S. To Judge

MACA 532/10 & 363/12 7

United India Insurance Co. Ltd. v. Shiney Jayan and Others

Case brief

What is this about?

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United India Insurance Co. Ltd. v. Shiney Jayan and Others

Case brief

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What did the court decide?

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