Kerala High Court
Valsamma vs V.A.Baiju on 18 September, 2009
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939
MACA.No. 711 of 2010 ( )
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AGAINST THE AWARD IN OPMV 393/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,
KOTTAYAM DATED 18-09-2009
APPELLANT(S)/PETITIONERS:
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1. VALSAMMA, W/O. LATE RAMACHANDRAN
KUNNUMPURATHU(H), NEAR PANCHAYAT PADI,, THRIKODITHANAM KARA,
DO. VILLAGE.
2. ANOOSH RAJ,S/O.LATE RAMACHANDRAN,
KUNNUMPURATHU(H), NEAR PANCHAYAT PADI,, THRIKODITHANAM KARA,
DO. VILLAGE.
BY ADV. SRI.K.A.HASHIM
RESPONDENT(S)/RESPONDENTS:
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1. V.A.BAIJU, CHERUKARACHIRA HOUSE
VALUMELCHIRA BHAGOM,VAZHAPPALLY EAST KARA,, DO. VILLAGE.
2. REV.FR.JOSEPH VATTAKALAM,
VATTAKALAM (H), MATTOM,CHANGANACHERRY.
3. THE NATIONAL INSURANCE CO.LTD.,
THIRUVALLA.
R3 BY ADV. SRI.LAL GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06-12-2017, ALONG WITH MACA 921/2010, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
SHG/
(C.R.)
C.K. ABDUL REHIM & K.P. JYOTHINDRANATH, JJ.
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M.A.C.A. Nos.711 & 921 of 2010
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Dated this the 6th day of December, 2017
J U D G M E N T
Abdul Rehim, J.
The claimants as well as the insurance company are in appeal against an award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V.)No.393/2006. Challenge in both these appeals are against the justifiability of the quantum of compensation awarded. When the insurance company is contending that the amount awarded is excessive, the claimants are contending that it is insufficient and inadequate. There is no dispute in both these appeals against the findings of the Tribunal on the aspects of negligence and liability of the insurance company.
2. The accident in question occurred on 25.12.2005. A youngster aged 23 years, who was riding on a motorcycle, was hit by a car, which was insured with the appellant in M.A.C.A. Nos.711 & 921 of 2010 2 MACA No. 921/2010. The Tribunal found that the driver of the car was negligent and hence the insurance company is liable to pay the amount of compensation. Contention of the appellant/insurance company is mainly on the aspect that the income adopted by the Tribunal for computing the loss of dependency is on the higher side. Learned standing counsel of the appellant/insurance company pointed out that, as on the date of the accident, the person died was not employed anywhere. But the Tribunal had computed his income based on the evidence that he got an employment under the State Government as an Excise Guard. It is the further contention that the income computed based on the salary of an Excise Guard was erroneous, because he was not actually drawing any salary as on the date of the accident as that of an Excise Guard.
3. On a perusal of the impugned award it is evident that, the claimants have produced Exts.A8 to A10 documents, which would reveal that the State Government had issued appointment order to the deceased posting him M.A.C.A. Nos.711 & 921 of 2010 3 as an Excise Guard, under the compassionate employment scheme, since his father died-in-harness while in the service of the State Government. Ext.A9 is the appointment order issued to the person died, appointing him as an Excise Guard, pursuant to Ext.A8 Government order. Ext.A10 is the physical fitness certificate issued by the Assistant Excise Commissioner, Kottayam on 19.11.2002. On a perusal of a copy of Ext.A8 it is evident that the Government had issued the said order on 3.5.2005, in which the Commissioner of Excise was directed to issue necessary posting, after verification of the testimonials. Ext.A8 letter was issued from the General Administration Department of the Government Secretariat, which would reveal that a vacancy of Excise Guard in Ernakulam district was earmarked for appointment of the deceased, under the compassionate employment scheme. It indicates that, the order sanctioning appointment will be issued from the Home Department. The Tribunal, on considering Ext.A21 certificate issued from the Excise Divisional Office, found M.A.C.A. Nos.711 & 921 of 2010 4 that the salary available to an Excise Guard as on the date of death of the person concerned was Rs.5,427/-. The said amount was taken as basis for arriving at the multiplicand. Contention of learned standing counsel is that, since the deceased had not joined duty as on the date of the accident, he cannot be considered as a person employed in the State Government as Excise Guard. Therefore the salary adopted for the purpose of fixing the multiplicand is illegal and unacceptable, is the contention.
4. We are of the considered opinion that the method adopted by the Tribunal is not vitiated in any manner. Going by the documents it is evident that the person died had secured a job under the State Government and he was issued with an order of appointment, about few months prior to the date of the accident. Therefore there existed a certainty with respect to his employment as Excise Guard, had he been alive. But for the accident, he would have definitely joined in the said job and continued under the employment. Therefore we find no fault in the method M.A.C.A. Nos.711 & 921 of 2010 5 adopted by the Tribunal in fixing the multiplicand.
5. Another contention raised by the appellant/ insurance company is regarding consideration of the pay revision for the purpose of fixing the multiplicand. The Tribunal, after observing that the salary proved through Ext.A21 is Rs.5,427/-, had adopted the total emoluments at Rs.6,014/- taking into consideration of the pay revision effected with retrospectivity, as evidenced from Ext.A22. Further, 50% of the said amount was added taking into account of future prospects. We are of the opinion that the correct method which ought to have been adopted is to consider the salary which the deceased would have drawn as on the date of the accident and to add future prospects to the said amount. Since the deceased in this case was aged 23 years (below 40 years), going by the latest decision of the hon'ble supreme court in National Insurance Company Limited v. Pranay Sethi & Ors. [2017 (4) KLT 662], the extent of addition to be made towards future prospects is 50%. Therefore we are of the opinion that the M.A.C.A. Nos.711 & 921 of 2010 6 correct multiplier which ought to have been adopted by the Tribunal is, Rs.5,427 + 50%.
6. In MACA No.711/2010, the appellants/claimants, who are the mother and younger brother of the deceased, seeks for enhancement of the amount of compensation awarded. Learned standing counsel appearing for the insurance company had disputed the maintainability of the said appeal, pointing out that the claimants are not 'persons aggrieved' coming within the purview of Section 173 of the M.V. Act and hence they are not entitled to file an appeal against the award. The said contention is based on the factual aspect that the claimants have limited their claim before the Tribunal to Rs.8 lakhs and the Tribunal had already awarded more than the said amount. Learned standing counsel had placed reliance on a decision of this court in Mithun Subramanian v. Nidhish Eldo Joseph and Another [2017 (3) KHC 710] in support of the above contention. We notice that, one among us, K.P. Jyothindranath (J) was a party to the said decision. In M.A.C.A. Nos.711 & 921 of 2010 7 fact, the question dealt with in the said case is purely with respect to locus standi of the claimants to file an appeal under Section 173 seeking enhancement of the amount of compensation. If the Tribunal had awarded amount more than what was claimed, the claimants cannot be termed as 'person aggrieved', coming under Section 173, is the finding therein. Learned counsel for the appellants in MACA No.711/2010 had pointed out that, the total claim raised before the Tribunal was Rs.8,89,676/-, which was limited to Rs.8 lakhs. We take note of various decisions of the hon'ble supreme court wherein it is held that the Tribunals are entitled to award more amount than what was claimed, in order to ensure that 'just compensation' is paid to the victims of motor vehicle accidents. The above approach is made by considering the relevant provisions in the Motor Vehicle Act, as beneficial legislation. Further, we take note of the fact that, even if the claimants have not filed any appeal seeking enhancement, this court is empowered to enhance the amount of compensation awarded, while M.A.C.A. Nos.711 & 921 of 2010 8 dealing with an appeal filed by the insurance company challenging the quantum, in exercise of jurisdiction vested on this court under Order 41 Rule 33 of the Code of Civil Procedure; and also taking note of the settled legal principle that the courts should ensure 'just compensation' to the victims of motor vehicle accidents. Therefore, even if it is found that MACA 711/2010 is not maintainable, this court has got jurisdiction to examine the justifiability or reasonableness of the amount of compensation awarded and is empowered to grant enhancement if any required, while considering the appeal filed by the insurance company challenging the quantum of compensation. Therefore we need not arrive at any specific finding on the question of maintainability of MACA 711/2010.
7. Learned counsel for the appellant/claimants contended that, the Tribunal went erred in adopting the multiplier based on the age of the mother. It remains now trite that, while computing compensation for the loss of dependency, the multiplier need to be adopted based on the M.A.C.A. Nos.711 & 921 of 2010 9 age of the deceased and not based on the age of the claimants. Considering the age of the deceased in this case as 23, the correct multiplier ought to have been adopted is '18'. Based on the above findings, compensation for loss of dependency need to be refixed at Rs.8,79,174/- [5427+50% x12x18x=]. In this regard, = of the amount is deducted towards personal expenses because the deceased was an unmarried person.
8. With respect to the challenges against amounts awarded under other heads, we notice that the amount of Rs.3,000/- awarded towards 'funeral expenses' is too low. We are inclined to award a further sum of Rs.12,000/- on that count, taking note of the decision in Pranay Sethi's case (supra). The Tribunal had failed to award any amount towards pain and sufferings, which we award a sum of Rs.10,000/-. The Tribunal had also failed to award anything towards loss of estate. We award a sum of Rs.15,000/- on that count, taking note of the guidelines stipulated in Pranay Sethi's case (supra).
M.A.C.A. Nos.711 & 921 of 2010 10
9. Learned counsel for the appellant/claimants contended that the sum of Rs.10,000/- awarded towards compensation for loss of love and affection is highly inadequate. The award under the head of compensation for loss of love and affection is opposed by the learned standing counsel appearing for the insurance company, contending that in Pranay Sethi's case (supra) the hon'ble apex court had held that there is no such head existing. But, on a reading of paragraph 54 of the said judgment, it is evident that what was prohibited is awarding of separate compensation under the head of 'care to minor' and not under the head of loss of love and affection. Compensation under the head of loss of love and affection is akin to the loss of consortium. Consortium is a compensation paid to the spouse taking into consideration of the loss of companionship, care, help, comfort, guidance, society, solace, affection and sexual relationship with his or her mate; as held by the hon'ble supreme court in Santosh Devi v. National Insurance Company Ltd and others M.A.C.A. Nos.711 & 921 of 2010 11 [(2012) 6 SCC 421]. In the case of children or siblings or parents, there will be loss of the above said emotions and feelings, except the sexual relationship. Therefore, loss of love and affection is almost akin to the loss of consortium, subject to variations in its severity or degree of bondage. Since the hon'ble apex court had upheld the award of compensation for loss of consortium in Pranay Sethi's case (supra), at no stretch of interpretation or imagination it can be held that, the hon'ble Judges of the supreme court had intended to hold that no head under loss of love and affection exists. Therefore, we are not inclined to accept the contention of the insurance company in this regard. In the case at hand, taking note of the fact that the claimants include the mother and younger brother of the deceased, we are inclined to award a sum of Rs.50,000/- under the head of compensation for loss of love and affection, which will entitle the claimants for an enhancement of Rs.40,000/-.
10. We do not find any ground to interfere with the award under other heads. Thus we hold that the appellants M.A.C.A. Nos.711 & 921 of 2010 12 in MACA No.711/2010 will be entitled for a total enhancement of Rs.1,44,284/-.
11. In the result, both the above appeals are disposed of as follows;
The impugned award is modified to the extent of enhancing the total compensation awarded by the Tribunal by a further sum of Rs.1,44,284/- (Rupees one lakh forty four thousand two hundred and eighty four only). The said amount will carry interest at the same rate as awarded by the Tribunal, from the date of the claim petition till realization.
12. The appellant/insurance company shall make deposit of the amount, less the amount already paid, within a period of two months from the date of receipt of a copy of this judgment.
The Tribunal shall deduct balance court fee if any due from the said amount. The entire balance amount shall be apportioned among the appellants/claimants at the same ratio as stipulated by the Tribunal. On deposit of the M.A.C.A. Nos.711 & 921 of 2010 13 amount, the appellants/claimants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon.
Sd/-
C.K. ABDUL REHIM, JUDGE Sd/-
K.P. JYOTHINDRANATH, JUDGE //True copy// P.A. TO JUDGE shg/