Motor Accidents Claims; Dr. Thomas George P. Vs. O. Santha [Kerala High Court, 31-03-2016]

Motor Vehicles Act, 1988 – S. 166 – Merely because the surviving spouse is employed cannot be a reason for holding that he or she would not have been required to depend on the other during the rest of his life and therefore, disentitled to get compensation under the aforesaid head. Growing of age usually makes the spouses more dependent on one another and therefore, in the case of a widow/widower he or she should be presumed to have been required to depend on the other during the rest of his life.

Compensation

Motor Vehicles Act, 1988 – S. 166 – Just Compensation – the mere fact that the claimants made only a claim for a lesser compensation amount cannot be a reason for grant of higher compensation if the Tribunal ultimately found that the claimants are entitled to get more.

ILR 2016 (3) Ker. 451 : 2016 (4) KHC 237

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T.RAVIKUMAR & MARY JOSEPH, JJ.

M.A.C.A.Nos.375 & 391 of 2011

Dated 31st March, 2016

AGAINST THE AWARD IN O.P.(M.V)No.1567/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 20-10-2010

APPELLANTS/PETITIONERS

DR. THOMAS GEORGE P.

ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA SRI.K.J.JOSEMON

RESPONDENTS/RESPONDENTS

O. SANTHA AND OTHERS

R3 BY ADV. SRI.M.JACOB MURICKAN

JUDGMENT

Ravikumar, J.

These appeals arise from the award dated 20.10.2010 in O.P.(MV)No.1567/07 of the Motor Accidents Claims Tribunal, Kottayam. The claim petition was filed under

Section 166 of the Motor Vehicles Act, 1988

(for short `M.V. Act’) seeking compensation for the death of one Sherly.V.Sebastian occurred on 16.05.2007 in a motor vehicle accident, by the legal heirs of the deceased, who are respectively the widower and the minor daughter. The Tribunal passed the impugned award for an amount of ₹ 30,00,000/- with interest at the rate of 7.5% per annum from the date of petition (18.10.2007) till payment and also with a cost of ₹ 40,000/-. In fact, the Tribunal passed such an award for ₹ 30,00,000/- after arriving at a finding that the appellants are entitled to get a compensation of ₹ 37,57,500/- solely for the reason that they had limited their claim to ₹ 30,00,000/-. The former appeal has been preferred by the claimants seeking enhancement of the compensation whereas the latter appeal has been preferred by the insurer of the offending vehicle viz., the third respondent in the former appeal contending that the amounts awarded by the Tribunal as per the impugned award under different heads are exorbitant and therefore, liable to be interfered with.

2. The deceased Sherly was the Acting Principal of St.Mary’s Higher Secondary School, Pariyapuram in Perinthalmanna which is an aided school. She was a foot passenger when she met the accident that doomed her life. It occurred thus:-

On 16.05.2007 at about 5.40 P.M. she was walking through Cheruthuruthi – Kulapully public road in Shornur Municipality. The offending vehicle which is a bus bearing Reg.No.KL 9J 432 driven by the second respondent knocked her down and its wheel ran over her body. She died instantaneously. In the claim petition it was averred that she was then aged 39 years and was drawing a monthly salary of ₹ 20,650/-. It was further stated therein that the appellants were then aged 40 years and 4 years respectively. It was in such circumstances that the aforesaid claim petition was filed seeking a compensation of ₹ 32,04,000/-, but limiting it to ₹ 30,00,000/-.

3. Obviously, no oral evidence was tendered by either side and on behalf of the appellants Exts.A1 to A9 were got marked. No documentary evidence was also adduced by the respondents. The Tribunal upon evaluating the evidence on record and appreciating the rival contentions passed the impugned award, as aforesaid. Parties to both the appeals are the same though their status differ. Since the appeals arise from the same award with divergent contentions they were heard jointly and are being disposed of by this common judgment. Hence, for the sake of convenience, they are referred to hereafter in this judgment in accordance with their respective status in the former appeal unless otherwise specifically mentioned. We have heard the learned counsel for the appellants and the learned counsel for the 3 rd respondent-insurer. Though notices were served on respondents 1 and 2 they have not chosen to enter appearance and to resist the appeals.

4. Essentially, the main contention of the appellantsclaimants is that the Tribunal went wrong in fixing the multiplicand for the purpose of calculating the compensation for loss of dependency. It is contended that at the relevant period the deceased was getting Dearness Allowance only at 40% of the Basic Pay and the same has since been enhanced to 78% and a pay revision order had also come into force in the year 2011. In short, according to the appellants, within a period of about 3 years since the death of Sherly.V.Sebastian there occurred about 50% of increase in the salary attached to the post held by her. Therefore, according to them, the addition of 50% of the actual income reckoning the future prospects which the deceased would have had is inadequate and such addition ought to have been much more than that. It is to be noted that the claimants/appellants got no grievance with respect to the multiplier fixed by the Tribunal and in fact, it was correctly fixed with reference to the age of the deceased. The learned counsel appearing for the appellants further contended that towards funeral expenses only ₹ 3,000/- was granted by the Tribunal against a claim of ₹ 20,000/-. So also, towards loss of consortium only an amount of ₹ 15,000/- was granted against a claim of ₹ 40,000/- and against a claim of ₹ 1,00,000/- towards loss of love and affection only an amount of ₹ 15,000/- was granted. The learned counsel relied on the decision of the Honourable Apex Court in

Rajesh v. Rajbir Singh reported in 2013 (3) KLT 89 (SC)

to contend that compensation granted under those heads requires upward modification. It is also contended that no amount was granted under the head `pain and sufferings’. It is further contended that only an amount of ₹ 5,000/- was granted under the head loss of estate.

5. As noticed hereinbefore, the latter appeal has been preferred by the insurer of the offending vehicle viz., the third respondent in the former appeal. The core contention of the third respondent – insurer is that no amount ought to have been granted under the head `loss of dependency’ and virtually, the appellants are entitled only to get compensation for loss of estate. The said contention is founded on the admitted fact that the first appellant who is the husband of the deceased is a Civil Surgeon. Essentially, the essence of the contention is that since he being a Civil Surgeon he could not have been and should not have been treated as a dependent of the deceased and since the second appellant is dependent on the first appellant she too was not entitled to get compensation under the head loss of dependency. The learned counsel appearing for the third respondent further contended that since the deceased was an income tax assessee the amount liable to be paid towards income tax ought to have been deducted while fixing the multiplicand for the purpose of calculating the compensation under the head loss of dependency, if at all the appellants are to be paid under that head. The Tribunal failed to effect any deduction though it was bound to effect such a deduction in the light of the decision of the Honourable Apex Court in