National Insurance Company ... vs Geethakumari G
2022 Latest Caselaw 10263 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
                      MACA NO. 1582 OF 2015

AGAINST THE AWARD DATED 11.08.2014 IN OPMV 967/2009 OF ADDITIONAL
         MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA
APPELLANT/ PETITIONERS 1 TO 3:

    1     GEETHA KUMARI G.
          W/O.LATE VIJAYAKUMAR, SREE VISHAKOM HOUSE,
          KUZHUVELIPURAM MURI, PERINGARA PANCHAYATH,
          PERINGARA VILLAGE, THIRUVALLA TALUK,
          PATHANAMTHITTA DISTRICT.

    2     VYSAKH
          S/O.LATE VIJAYAKUMAR, SREE VISHAKOM
          HOUSE,KUZHUVELIPURAM MURI,
          PERINGARA PANCHAYATH, PERINGARA VILLAGE,
          THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

    3     VINDUJA V
          D/O.LATE VIJAYAKUMAR, SREE VISHAKOM HOUSE,
          KUZHUVELIPURAM MURI,
          PERINGARA PANCHAYATH, PERINGARA VILLAGE,
          THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

          BY ADVS.
          SRI.T.K.KOSHY
          SRI.ABE RAJAN



RESPONDENT/ RESPONDENTS 1 TO 3:

    1     SAJIKUMAR P.P.
          S/O.PEETHAMBHARAN, SHANTHI NIVAS,
          ANAPRAMBAL VADAKUM MURI, THALAVADI VILLAGE,
          NOW RESIDING AT GURUKRIPA, CHEKIDIKADU.P.O.,
          THAKAZHI VILLAGE,PACHA THAKAZHI PANCHAYATH,
          ALAPPUZHA DISTRICT.PIN-689 573.

    2     P.K.PEETHAMBHARAN
          S/O.KUTTAPPAN, SHANTHI NIVAS,
          ANAPRAMBAL NORTH.P.O., THALAVADI,
          ALAPPUZHA DISTRICT.PIN-689 572.
 MACA Nos.1582/2015, 3151/2014   ..2..


    3     THE BRANCH MANAGER
          NATIONAL INSURANCE CO.LTD.,
          ALAPPUZHA. PIN-688 001.

         BY ADV SRI.P.G.GANAPPAN



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 22.09.2022, ALONG WITH MACA.3151/2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA Nos.1582/2015, 3151/2014     ..3..

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
 THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA,
                                1944
                    MACA NO. 3151 OF 2014

 AGAINST THE AWARD DATED 11.08.2014 IN OPMV 967/2009 OF
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA
APPELLANT/3RD RESPONDENT:


           NATIONAL INSURANCE COMPANY LIMITED
           ALAPPUZHA, NOW REPRESENTED BY ITS MANAGER,
           KOCHI REGIONAL OFFICE, OMANA BUILDING,
           M.G.ROAD, KOCHI-35.

           BY ADVS.
           SRI.MATHEWS JACOB (SR.)
           SRI.P.JACOB MATHEW


RESPONDENT/PETITIONERS:


    1      GEETHAKUMARI G.
           W/O.LATE P.C.VIJAYAKUMAR,
           SREE VISHAKOM HOUSE, KUZHUVELIPURAM MURI,
           PERINGARA VILLAGE,
           THIRUVALLA TALUK. PIN-689 320.

    2      VYSAKH, S/O.LATE P.C.VIJAYAKUMAR,
           SREE VISHAKOM HOUSE, KUZHUVELIPURAM MURI,
           PERINGARA VILLAGE,
           THIRUVALLA TALUK. PIN-689 320.

    3      VINDUJA V, D/O.LATE P.C.VIJAYAKUMAR,
           SREE VISHAKOM HOUSE,
           KUZHUVELIPURAM MURI,
           PERINGARA VILLAGE,
           THIRUVALLA TALUK. PIN-689 320.

           BY ADVS.
           SRI.ANIL GEORGE
 MACA Nos.1582/2015, 3151/2014   ..4..


          SRI.T.K.KOSHY



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 22.09.2022, ALONG WITH MACA.1582/2015, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA Nos.1582/2015, 3151/2014    ..5..




                        JUDGMENT

Both the appeals are filed against the award in O.P.

(MV)No. 967 of 2009 on the files of the Additional Motor

Accidents Claims Tribunal, Pathanamthitta. Accordingly,

they were heard together and are disposed of by this

common judgment. The parties in these appeals are

referred to as per their status in the claim petition.

2. M.A.C.A No.3151 of 2014 is filed by the

insurance company contending that the amount of

compensation awarded by the Tribunal is excessive and

M.A.C.A. No.1582 of 2015 is filed by the petitioners

contending that the amount of compensation awarded is

inadequate.

3. The petitioners are the wife and children of

deceased Vijayakumar, who met with an accident on

02.02.2009. According to the petitioners, while

Vijayakumar was riding a scooter, a car bearing MACA Nos.1582/2015, 3151/2014 ..6..

Registration No. KL-04-X/3776 driven by the 1 st

respondent rashly and negligently, owned by the 2 nd

respondent and insured with the 3rd respondent, hit on

the scooter and the deceased suffered serious injuries

and he succumbed to the injuries. The deceased was

aged 51 years at the time of accident and was the Senior

Superintendent in the office of the Assistant Educational

Officer, Thiruvalla, drawing a monthly salary of

Rs.22,000/-. In the original petition filed under Section

166 of the Motor Vehicles Act, 1988 (hereinafter

referred to as the 'Act'), though the petitioners made

their own assessment of compensation of Rs.

25,50,000/-, the claim was limited to Rs.15,00,000/- for

the purpose of payment of court fee.

4. Before the Tribunal, the 3rd respondent insurance

company filed a written statement admitting that the car

was covered by a policy of insurance at the time of

accident. However, it was contended that there is MACA Nos.1582/2015, 3151/2014 ..7..

violation of conditions of policy. The age, occupation and

the income of the deceased was disputed and it was also

contended that the amount claimed as compensation is

exorbitant.

5. The Tribunal found that the accident happened

due to the negligence of the 1st respondent and that

there is no violation of conditions of policy by the 2 nd

respondent. The Tribunal awarded an amount of

Rs.24,68,400/- as compensation with 9% per annum

interest from the date of filing of the petition till

realisation and proportionate cost of Rs.1,49,377/-. The

insurance company was directed to satisfy the award.

The split up of the compensation awarded is as follows:

     Sl.    Head of claim                 Amount      Amount
                                          claimed     awarded
     No.                                  (Rs.)       (Rs.)

     1.     Loss of dependency            12,00,000   22,26,400

     2.     Pain and sufferings           3,00,000       10,000

     3.     Funeral expenses                60,000       25,000
 MACA Nos.1582/2015, 3151/2014    ..8..


     4.     Transport to hospital          6,000       1,000

     5.     Damage to clothes              3,000       1,000

     6.     Loss of love and affection   2,00,000    1,00,000

     7.     Loss of consortium           2,00,000    1,00,000

     8.     Loss of estate               2,00,000      5,000

            TOTAL                                   24,68,400

6. The petitioners contend that the compensation

awarded under various heads is inadequate. It is

contended that, if the deceased was alive, he would have

got revised scale of pay and therefore, the Tribunal

ought to have taken the multiplicand as Rs.35,000/-

instead of Rs. 22,000/-. It is also contended that the

Tribunal ought not to have deducted 1/3 rd of the income

towards personal living expenses of the deceased and

ought to have added 30% of the income towards future

prospects instead of 15%. The compensation awarded

under other heads is also challenged as inadequate. The MACA Nos.1582/2015, 3151/2014 ..9..

petitioners filed I.A. No.1883/2015 in M.A.C.A No.1582

of 2015 to amend the claim petition by substituting the

aggregate compensation figure of Rs.15,00,000/- as

Rs.35,00,000/-. This Court, by order dated 17.06.2015,

posted the said application to be considered along with

the appeal.

7. The insurance company has challenged the

award contending that the petitioners cannot be treated

as 'persons aggrieved' within the meaning of Section

173(1) of the Act, as they have been awarded

compensation in excess of the amount claimed by them.

It is also contended that since the deceased would have

retired at the age of 56, the Tribunal ought to have

taken a split multiplier and ought not to have adopted

the multiplier of '11'.

8. Since the adequacy and excessiveness of the

amount awarded as compensation have been called in

question in these appeals, this Court has to see whether MACA Nos.1582/2015, 3151/2014 ..10..

the award of the Tribunal is fair, just and reasonable.

9. The first and the foremost objection raised by Sri.

Mathews Jacob, the learned senior counsel for the

insurance company is that, since the petitioners have

been granted compensation more than what was claimed

in the claim petition filed before the Tribunal, they

cannot be treated as 'persons aggrieved' to prefer an

appeal in terms of Section 173(1) of the Act challenging

the award of the Tribunal. It is contended that the

petitioners had claimed only Rs.15,00,000/- as

compensation in aggregate and the Tribunal has

awarded an amount of Rs.24,68,400/- and therefore, the

appeal itself is not maintainable.

10. The question as to whether the person who has

been awarded compensation in excess of what has been

claimed can prefer an appeal under Section 173 of the

Act has been considered by the Division Bench of this

Court in Sreekumar v. Divisional Manger, National MACA Nos.1582/2015, 3151/2014 ..11..

Insurance Company Ltd., Kollam [2022 (3) KHC 467],

wherein it was held that, once it is found that the

compensation to which claimant is entitled, be it under

any particular head or aggregate, is more than what is

claimed, its denial after assessment would result in

denial of just compensation. Sri. T.K. Koshy, the learned

counsel for the petitioners took me through paragraphs

77 and 78 of the said decision which read as under:

"77. In the result, the question referred to the Division Bench is answered as follows; The law laid down by the Division Bench in Mithun Subramanian (supra) is that, while adjudicating 'just compensation' the Claims Tribunal or the High Court has got unfettered powers to go into the claims in detail and grant compensation in excess of what is actually claimed, if in the opinion of the Claims Tribunal or the High Court the 'just compensation' to which the claimant deserves is more than the amount actually claimed. Further, a claimant who was granted compensation in excess of his claim by the Claims Tribunal cannot maintain an appeal under Section 173 of the Motor Vehicles Act seeking enhancement of compensation without showing that MACA Nos.1582/2015, 3151/2014 ..12..

by the award of the Claims Tribunal he had suffered a legal grievance or that he was deprived of or refused something to which he is legally entitled to.

When as per the award of the Claims Tribunal nothing was deprived of or refused to the claimant to which he was legally entitled to, a claimant who is a grantee of compensation in excess of his claim, could not be considered as a 'person aggrieved', who is entitled to prefer an appeal in terms of Section 173 of the Act. The interpretation given to the expression 'person aggrieved' by the Division Bench in Mithun Subramanian (supra), in the case of an appeal filed under Section 173 of the Motor Vehicles Act by a claimant who was granted compensation by the Claims Tribunal in excess of his claim, without showing that by the award of the Claims Tribunal he had suffered a legal grievance or that he was deprived of or refused something to which he is legally entitled to, is neither contrary to the scheme of the provisions under Chapter XII of the Motor Vehicles Act which is a beneficial piece of legislation nor contrary to the law laid down in Nagappa [(2003) 2 SCC 274] and reiterated in a catena of decisions that there is no restriction that the Claims Tribunal or the High Court cannot award compensation amount exceeding the claimed amount. The function of the Claims Tribunal or the High Court is to award MACA Nos.1582/2015, 3151/2014 ..13..

'just' compensation which is reasonable on the basis of evidence placed on record. Therefore, the only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on the power of the Claims Tribunal or the High Court for awarding 'just compensation'. Therefore, it would be open to the Claims Tribunal or the High Court and virtually it is the duty of the Tribunal and the High Court to award 'just compensation' under each head and if found necessary, by ignoring the claim made in the application for compensation.

78. The assessment of compensation under different heads is done for the purpose of granting just compensation. Hence, once it is found that the compensation to which the claimant is legally entitled, be it under any particular head or aggregate, is more than what is claimed, its denial would result in denial of 'just compensation'. Therefore, once it is found that the claimant had suffered a legal grievance by the award passed by the Claims Tribunal under Section 168 of the Act, whereby he is deprived of 'just compensation' to which he was legally entitled to under any particular head, he can be considered as a 'person aggrieved' to prefer an appeal in terms of Section 173 of the Act for seeking enhancement of the compensation MACA Nos.1582/2015, 3151/2014 ..14..

awarded by the Tribunal. Such legal grievance can be with reference to the adoption of wrong multiplier; improper deduction towards personal and living expenses; improper assessment of percentage of functional disability; improper addition of future prospects; denial of 'just compensation' under the conventional heads like, loss of estate, loss of consortium, funeral expenses, etc., in terms of the law laid down by the Apex Court in National Insurance Company Limited v. Pranay Sethi [(2017) 16 SCC 680]; etc."

In the light of the dictum laid down by the Division

Bench, this Court has to examine whether the

petitioners had suffered a legal grievance by the award

passed by the Claims Tribunal and they are deprived of

'just compensation' to which they were legally entitled to

under any particular head.

11. The deceased was a State Government

employee. The petitioners claimed that the monthly

income of the deceased was Rs.22,000/-. The Tribunal

has taken his monthly income as Rs.22,000/- on the basis

of Ext.A8 salary certificate. The deceased was aged 51 MACA Nos.1582/2015, 3151/2014 ..15..

years at the time of accident and therefore, the

multiplier to be adopted as per the decision in Sarla

Verma v. Delhi Transport Corporation [2009 (6)

SCC 121: AIR 2009 SC 3104] is '11'. Since the

deceased had a permanent employment, 15% of the

income has to be added towards future prospects going

by the dictum laid down in the decision of the

Constitution Bench of the Hon'ble Supreme Court in

National Insurance Company Limited v. Pranay

Sethi and others ((2017) 16 SCC 680: 2017 (5) KHC

350: 2017 (4) KLT 662:]. Therefore, the income of the

deceased would come to Rs.25,300/- (22,000+3,300).

Since there are three dependants, the deductions

towards personal living expenses of the deceased shall

be 1/3rd of his income. Accordingly, the compensation for

loss of dependency would come to Rs.22,26,400/- [Rs.

25,300×12×2/3×11]. The Tribunal has therefore, rightly

awarded Rs.22,26,400/- as compensation for loss of MACA Nos.1582/2015, 3151/2014 ..16..

dependency.

12. According to the learned senior counsel for the

insurance company, the Tribunal, instead of adopting the

multiplier of '11', ought to have taken a split multiplier

as the deceased would have retired at the age of 56. It

is to be noted that, the insurance company had not

raised the contention regarding adoption of split

multiplier in the written statement filed before the

Tribunal and therefore, the said contention cannot be

urged for the first time in the appeal, as the petitioners

had no opportunity to object to such contention before

the Tribunal. Further, the Hon'ble Supreme Court, in

Jayasree N. and Others v. Cholamandalam MS.

General Insurance Company Ltd. [2021 (6) KHC

163], after a survey of various decisions, considered the

applicability of split multiplier and held as under:

"22. (II) Whether the High Court was justified in

applying a split multiplier?

MACA Nos.1582/2015, 3151/2014 ..17..

The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/- (Rupees eighty-three thousand eight hundred thirty-one only). The evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a first-class holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics. Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement.

23. In Sarla Verma (2009 KHC 4634 : (2009) 6 SCC 121 : AIR 2009 SC 3104 : (2009) 2 SCC (Cri) 1002 : 2009 (78) AIC 153 : 2009 (162) DLT 278 : MACA Nos.1582/2015, 3151/2014 ..18..

2010 (2) KLT 802 : 2009 (6) SCALE 129 : 2010 (1) Guj LR 17 : 2009 (4) MPLJ 96 : 2009 (5) Mah LJ

775), this Court has held that while calculating the compensation, the Courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted.

24. In Reshma Kumari and Others v. Madan Mohan and Another (2013 KHC 4253 : (2013) 9 SCC 65 : 2013 (2) KHC SN 12 : 2013 (5) SCALE 160 : 2013 (2) KLT 304 : 2013 (126) AIC 178 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826 : 2013 (3) Cal LJ 1 : 2013 (99) ALR 1 : 2013 ACJ 1253), a three-Judge Bench of this Court has approved the judgment in Sarla Verma.

25. In Pranay Sethi (2017 (5) KHC 350 : (2017) 16 SCC 680 : 2017 (4) KLT 662 : ILR 2017 (4) Ker. 513 : 2017 (4) KLJ 627 : AIR 2017 SC 5157 : 2017 ACJ 2700), this Court has not only approved the aforesaid observations made in Sarla Verma but also MACA Nos.1582/2015, 3151/2014 ..19..

held as under:

"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

26. In K. R. Madhusudhan and Others v.

MACA Nos.1582/2015, 3151/2014 ..20..

Administrative Officer and Another (2011 KHC 4140 : (2011) 4 SCC 689 : 2011 (1) KLT SN 136 : AIR 2011 SC 979 : (2011) 2 SCC (Cri) 706 : (2011) 2 SCC (Civ) 422 : 2011 (112) Cut LT 345 : 2011 (99) AIC 6 : 2011 (3) MPLJ 486 : 2011 (4) Mah LJ 520 : 2011 (85) ALR 476 : 2011 ACJ 743), this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under:

"8. In Sarla Verma, (2009) 6 SCC 121 judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances.

9. We are of the opinion that the rule of thumb evolved in Sarla Verma, (2009) 6 SCC 121 is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid MACA Nos.1582/2015, 3151/2014 ..21..

uncertainties and inconsistencies in the interpretation of different Courts, and to overcome the same."

27. In Puttamma and Others v. K. L. Narayana Reddy and Another (2013 KHC 4997 : (2013) 15 SCC 45 : 2014 (1) KHC SN 6 : 2013 (15) SCALE 437 : 2014 (1) KLT 738 : AIR 2014 SC 706 : 2014 (1) KLJ 777 : 2014 ACJ 526), this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus:

"32. For determination of compensation in motor accident claims under S.166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma, (2009) 6 SCC 121 prepared a table for the selection of a multiplier based on the age group of the deceased / victim. The 1988 Act, does not envisage application of a split multiplier.

33. In K. R. Madhusudhan v. Administrative Officer, (2011) 4 SCC 689 this Court held as follows: (SCC p. 692, paras 14-15) "14. In the appeal which was filed by the appellants before the High Court, the MACA Nos.1582/2015, 3151/2014 ..22..

High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6.

15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method." MACA Nos.1582/2015, 3151/2014 ..23..

34. We, therefore, hold that in absence of any specific reason and evidence on record the tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma, (2009) 6 SCC 121 as affirmed in Reshma Kumari, (2013) 9 SCC 65."

28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi (2017 (5) KHC 350 : (2017) 16 SCC 680 : 2017 (4) KLT 662 : ILR 2017 (4) Ker. 513 : 2017 (4) KLJ 627 : AIR 2017 SC 5157 : 2017 ACJ 2700), the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case." MACA Nos.1582/2015, 3151/2014 ..24..

There is absolutely no reason or evidence on record to

apply split multiplier in the case on hand and in the light

of the dictum laid down in Jayasree (supra), the

contention of the insurance company is to be rejected.

The multiplier to be applied is the multiplier in terms of

the decision in Sarla Verma (supra).

13. According to the learned Counsel for the

petitioners, the deceased would have got revised salary,

if he had continued in employment. It is to be noted that

standardization of the addition for future prospects has

been made taking note of the fact that salary does not

remain the same. In Pranay Sethi, the Constitution

Bench of the Hon'ble Supreme Court took judicial notice

of the fact that salary does not remain the same and held

thus:

"60...Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other.

MACA Nos.1582/2015, 3151/2014 ..25..

To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter."

Following Pranay Sethi, in Jayasree (supra), the

Hon'ble Supreme Court awarded an addition of 15% of

the salary of the deceased who was aged 52 years

towards future prospects. Since the Tribunal has

awarded an addition of 15% of the salary of the

deceased who was aged 51 years towards future

prospects, the petitioners cannot contend that a higher

salary based on future revision of salary ought to have

been taken by the Tribunal. I find that the compensation

awarded by the Tribunal for loss of dependency is as per

the dictum laid down in Sarla Verma and Pranay Sethi

(supra) and is just compensation.

14. Towards compensation for pain and sufferings,

an amount of Rs.10,000/- has been awarded by the MACA Nos.1582/2015, 3151/2014 ..26..

Tribunal. In the light of the decision in United India

Insurance Company v. Satinder Kaur [AIR 2020 SC

3076], the petitioners are not entitled for any amount

under the said head. Accordingly, the said amount has to

be deducted from the total compensation.

15. Under the head compensation for funeral

expenses, an amount of Rs.25,000/- has been awarded

by the Tribunal. In the light of the decision in Pranay

Sethi (supra), the petitioners are entitled to get only an

amount of Rs.15,000/- under the said head and

therefore, an amount of Rs.10,000/- has to be deducted.

16. The Tribunal has awarded an amount of

Rs.1,00,000/- towards compensation for loss of

consortium to the 1st petitioner, the wife of the deceased

and an amount Rs.50,000/- each to the two children

under the head loss of love and affection. The

petitioners, being the wife and children of the deceased,

are entitled for an amount of Rs. 40,000/- each towards MACA Nos.1582/2015, 3151/2014 ..27..

compensation for loss of consortium resulting in a total

amount of Rs.1,20,000/- [Satinder Kaur (supra)] and

therefore, they are entitled for an enhanced amount of

Rs.20,000/- (1,20,000-1,00,000) under the said head. In

Satinder Kaur (supra), the Hon'ble Supreme Court has

held that, when compensation is awarded under the

head loss of consortium, there is no justification in

awarding compensation for loss of love and affection as

a separate head. Therefore, Rs.1,00,000/- awarded by

the Tribunal under the head loss of love and affection

has to be deducted from the total compensation.

17. Towards compensation for loss of estate, the

Tribunal has awarded only an amount of Rs.5,000/-. As

per the decision in Pranay Sethi (supra), the petitioners

are entitled for an amount of Rs.15,000/- under the said

head and therefore, they are granted an enhanced

amount of Rs.10,000/- (15,000-5,000). MACA Nos.1582/2015, 3151/2014 ..28..

18. I find that the compensation awarded under

other heads is just and reasonable.

19. Thus, on a re-appreciation of the pleadings and

materials on record, I find that the amount awarded by

the Tribunal in the impugned award has to be modified

and reduced as held above.

20. In the result, the appeal filed by the insurance

company (M.A.C.A. No.3151 of 2014) is allowed as above

holding that the petitioners are entitled only for an

amount of Rs.23,78,400/- [24,68,400-(1,20,000-

30,000)] as compensation with 9% interest per annum

from the date of petition till realisation with costs,

instead of Rs.24,68,400/- awarded by the Tribunal.

M.A.C.A No.1582 of 2015 filed by the petitioners is

dismissed. I.A. No.1883 of 2015 will also stand

dismissed.

As per order dated 01.12.2014 in I.A. No.3640 of

2014 in M.A.C.A. No.3151 of 2014, an amount of MACA Nos.1582/2015, 3151/2014 ..29..

Rs.10,00,000/- was deposited by the insurance company

before the Tribunal and the petitioners were permitted

to withdraw the said amount. The insurance company

shall deposit the balance award amount as modified by

this Court with interest and costs before the Tribunal

within a period of two months from the date of receipt of

a copy of this judgment.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

SB