Kerala High Court
The Oriental Insurance Company Limited vs Varghese on 31 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
ST
FRIDAY, THE 31
DAY 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:
HE ORIENTAL INSURANCE COMPANY LIMITED,
T
THRISSUR NOW REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, METRO PALACE, KOCHI 18.
Y ADVS.
B
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONERS:
1
VARGHESE, S/O POULOSE, ANTHIKKATT HOUSE, KAKKASSERY DESOM,
ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.
2
ELSA, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM,
ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.
3
AAVILA, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM,
ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.
4
EMILY, D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM,
ELAVALLY VILLAGE, CHAVAKKAD TALUK, PIN 680 511.
5
MILAN, 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
EARD
H ON
31.05.2024,
ALONG
WITH
CO.158/2016,THE
COURTON
THE
SAME DAY DELIVERED THE FOLLOWING:
ACA No.2619 of 2016 &
M
CO No.158 of 2016 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
ST
FRIDAY, THE 31
DAY 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:
1
VARGHESE, AGED 64 YEARS,
S/O POULOSE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY
VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511.
2
ELSA, AGED 30 YEARS, D/O VARGHESE ANTHIKKATT HOUSE, KAKKASSERY
DESOM, ELAVAVLLY VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511.
3
AVILA, AGED 26 YEARS,
D/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY
VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511.
4
EMILY, AGED 24 YEARS
D/O VARGHESE ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY
VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511.
5
MILAN, AGED 22 YEARS,
S/O VARGHESE, ANTHIKKATT HOUSE, KAKKASSERY DESOM, ELAVAVLLY
VILLAGE, CHAVAKKAD TALUK, THRISSUR - 680 511.
Y ADVS.
B
VINODE V. LUKA
SRI.RENJITH RAJAPPAN
RESPONDENT/S:
HE ORIENTAL INSURANCE COMPANY LTD.
T
REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE,
METRO PALACE, KOCHI- 682 018.
BY ADV SRI.P.JACOB MATHEW
THIS
CROSS
OBJECTION/CROSS APPEAL
HAVINGBEEN
FINALLY HEARDON
1.05.2024,
3 ALONG
WITH
MACA.2619/2016,
THE
COURT
ON
THE
SAME
DAY
DELIVERED THE FOLLOWING:
ACA No.2619 of 2016 &
M
CO No.158 of 2016 3
J U D G M E N T
Theaboveappealandcrossobjectionaredirectedagainst
the award in OP(MV) No.1122of2008onthefileofAdditional
Motor Accidents Claims Tribunal, Thrissur. The 3rd
respondent-Insurer is the appellant and the claimants are the
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
claimant and mother of claimants 2 to5,diedinaroadtraffic
accident, while she was travelling in KL-9/C-1919 bus. Due to
the rash and negligent driving of the bus by the 2nd
respondent, the bus hit against an electric post, whereby,
Smt.Alphonsasufferedseriousinjuriesandsuccumbedtoit,on
her way to hospital. 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/-, which according to the Insurer is on
ACA No.2619 of 2016 &
M
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. The 3rdrespondentcontestedthecase,butadmitted
the Policy as well as the incident.
4. Now this Court iscalledupontoanswerwhetherthere
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 due to retire after 8 years. So
themultipliertakenbytheTribunalas13,wasnotcorrectand
the proper multiplier would have been '8'.TheApexCourthas
time and again deprecated the practice of applying split
multiplier in the case of death of an employee prior to
ACA No.2619 of 2016 &
M
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. There was nothing to show
that any of herchildrenwereemployed/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
ACA No.2619 of 2016 &
M
CO No.158 of 2016 6
cross objectors/claimants as her dependents so that only ¼
was liable to be deducted towards her personal expenses. 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. Learned counsel for the appellant wouldpointoutthat
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.
ACA No.2619 of 2016 &
M
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 'loss of estate', no amount was awardedbytheTribunal.
Based on Pranay Sethi's case cited supra, the cross
objectors/claimants are eligible to get Rs.15,000/- and sothis
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/claimants are eligible to get Rs.40,000/- eachunder
thehead'lossofconsortium',whichwillcometoRs.2,00,000/-.
So they are noteligibletogetanyfurtherenhancementunder
the head 'loss of consortium/loss of love and affection', than
the amount already awarded by the Tribunal.
10. Learned counsel for the appellant would submitthat
learned Tribunal failed to deduct income tax from the income
calculated for the deceased. As per the salary certificate, the
ACA No.2619 of 2016 &
M
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, housing loan etc., she was not liable to pay
income tax and so, this Court cannot find fault with the
Tribunal for not deducting tax from the annual income of the
deceased.
Head of claim mount
A mount
A mounts
A ifference to
D
awarded by awarded in deducted in be drawn as
the Tribunal appeal appeal enhanced
compensation
oss of
L
dependency Rs.20,28,270/- Rs.22,81,812/- Rs.2,53,542/-
uneral
F Rs.25,000/- Rs.15,000/- Rs.10,000/-
expenses
Loss of estate ... Rs.15,000/- Rs.15,000/-
oss of
L
consortium Rs.1,00,000/- Rs.2,00,000/-
oss of love and Rs.1,00,000/-
L
affection
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
ACA No.2619 of 2016 &
M
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.
The appeal and cross objection are allowedinparttothe
extent as above and no order is made as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
