Kerala High Court
Vijayakumari vs Reliance General Insurance Co. ... on 27 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
MACA NO. 1502 OF 2016
AGAINST THE AWARD IN O.P.(M.V) NO.452/2014 DATED 21.01.2016 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANT/3RD RESPONDENT:
RELIANCE GENERAL INSURANCE CO. LTD, CALICUT,
REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,
ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SRI.ALEXY AUGUSTINE
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS/CLAIMANTS:
1 VIJAYAKUMARI, W/O.BALAKRISHNAN, NELLIKKUNNATH HOUSE,
VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK,
PALAKKAD DT. 678 595.
2 BALAKRISHNAN, S/O.AYYAPPAN, NELLIKKUNNATH HOUSE,
VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK,
PALAKKAD DT. 678 595.
3 BINDHYA BALAKRISHNAN, D/O.BALAKRISHNAN,
NELLIKKUNNATH HOUSE, VAZHEMPURAM P.O., KARAKURUSSI,
OTTAPALAM TALUK, PALAKKAD DT. 678 595.
BY ADVS.
SRI.K.B..ARUNKUMAR
THIS M.A.C.A HAVING BEEN FINALLY HEARD ON 27.07.2021, ALONG WITH CO.5/2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
CO NO. 5 OF 2020
AGAINST THE AWARD DATED 21.01.2016 IN O.P (M.V) NO.452/2014
ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM
CROSS OBJECTORS/RESPONDENT NO.1 TO 3/CLAIMANTS NO.1 TO 3
1 VIJAYAKUMARI, AGED 48 YEARS, W/O. BALAKRISHNAN,
NELIKKUNNATH HOUSE, VAZHEMPURAM (P.O), KARAKURUSSI,
OTTAPALAM TAUK, PALAKKAD DISTRICT, PIN-678 595.
2 BALAKRISHNAN, AGED 55 YEARS,
S/O. AYYAPPAN, NELIKKUNNATH HOUSE,
VAZHEMPURAM (P.O), KARAKURUSSI, OTTAPALAM TAUK,
PALAKKAD DISTRICT, PIN-678 595.
3 BINDHYA BALAKRISHNAN, AGED 32 YEARS,
D/O. BALAKRISHNAN, NELIKKUNNATH HOUSE,
VAZHEMPURAM (P.O), KARAKURUSSI, OTTAPALAM TAUK,
PALAKKAD DISTRICT, PIN-678 595.
BY ADV K.B.ARUNKUMAR
RESPONDENT/APPELLANT/RESPONDENT NO.3:
RELIANCE GENERAL INSURANCE CO. LTD,
CALICUT, REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, VISHNU BUILDING, K.P. VALLON ROAD,
KADAVANTHRA, ERNAKULAM, PIN-682 020.
BY ADV K.S.SANTHI
THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 27.07.2021, ALONG WITH
MACA.1502/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
-:3:-
C.R.
MARY JOSEPH, J.
-----------------------
M.A.C.A. No. 1502 of 2016
and
C.O. No.5 of 2020
-----------------------
Dated this the 27th day of July, 2021
JUDGMENT
The appeal and the Cross Objection are originated from an
Award passed by Motor Accident Claims Tribunal, Ottappalam (for
short 'the Tribunal') on 21.01.2016 in O.P.(M.V.) No.452/14 . The
appeal was preferred by the insurer contending that the Tribunal
went wrong in fixing the monthly income notionally as Rs.7,000/-
and arriving at the multiplicand by adding 50% to it in
consideration of future prospects.
2. According to Smt.Santhi, the learned counsel for the
insurer, the victim of the motor accident who succumbed to the
injuries being a student of final year Diploma, aged 21 years, the
Tribunal ought not to have fixed the monthly income notionally as
Rs.7,000/- and added 50% of it in consideration of future
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
prospects to arrive at the multiplicand. According to him, a sum
lesser than Rs.7,000/- ought to have been taken and 40% of it
ought to have been added to it. Contentions were also raised to
the effect that the sum awarded as compensation for loss of
dependency and loss of love and affection and the rate of interest
ordered as payable for the amount awarded as compensation are
also on the higher side.
3. The learned counsel has also called attention of this Court
to a legitimate claim that the Cross Objection having been
preferred before this Court by the Claimants after a lapse of five
years from the date of filing of the appeal by the insurer, this Court
ought not to have ordered interest for the period of delay.
According to her, the direction to pay interest ought to have been
confined to the period of pendency of the claim petition, excluding
the period of delay occurred in filing the Cross Objection.
4. The Cross Objectors are the claimants who are the
dependents of the deceased and the main contention raised was
that, the deceased was a final year student of Diploma in
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
Electronics at Government Polytechnic, Palakkad and selection
having been obtained for a decent job in a Campus interview, the
Tribunal ought to have taken a sum higher than Rs.7,000/- as his
monthly income notionally and compensation for loss of
dependency assessed on its basis. For the sake of clarity, Cross
objectors are referred to hereinafter as the claimants.
5. Ramakrishnapillai K. and others v. New India
Assurance Co. Ltd [2015 (3) KLJ 750] and National Insurance
Co. Ltd., Chennai v. Fathimath Zuhara @Zuhra Razak [2016
KHC 691] were relied on by the claimants to contend that
Rs.12,000/- ought to have been fixed by the Tribunal as monthly
income on notional basis and the compensation payable for loss of
dependency, assessed on its basis. It was further contended that
Rs.10,000/- awarded by the Tribunal towards loss of estate is on
the lower side and on the basis of the dictum in National
Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)] the
same ought to have been fixed as Rs.15,000/-. Accordingly
claimants seek for interference and modification of the
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
compensation awarded by the Tribunal, under challenge.
6. True that in Pranay Sethi (supra) a larger bench of the
Apex Court in its venture to answer a reference placed before it
and with a view to standardise the procedure while awarding
compensation, arrived at conclusions which are extracted
hereinbelow :
"61. In view of the aforesaid analysis, we proceed to record our
conclusions :
(I) The two-Judge Bench in Santosh Devi should have been well
advised to refer the matter to a Larger Bench as it was taking a
different view than what has been stated in Sarla Verma, a
judgment by a coordinate Bench. It is because a coordinate
Bench of the same strength cannot take a contrary view than
what has been held by another coordinate Bench.
(II) As Rajesh has not taken note of the decision in Reshma
Kumari, which was delivered at earlier point of time, the decision
in Rajesh is not a binding precedent.
(III) 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
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
should be 15%. Actual salary should be read as actual salary less
tax.
(IV) In case of 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.
(V) For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the Courts shall
be guided by paragraphs 30 to 32 of Sarla Verma which we have
reproduced hereinbefore.
(VI) The selection of multiplier shall be as indicated in the Table
in Sarla Verma read with paragraph 42 of that judgment.
(VII) The age of the deceased should be the basis for applying the
multiplier.
(VIII) Reasonable figures on conventional heads, namely loss of
estate, loss of consortium and funeral expenses should be
Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The
aforesaid amounts should be enhanced at the rate of 10% in
every three years."
7. In National Insurance Co.Ltd, Chennai Supra, the
deceased was aged 19 years and was an Engineering student and
the Tribunal had fixed his monthly income notionally as
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
Rs.12,000/- and added 50% to it in consideration of future
prospects in the process of arriving at the multiplicand.
8. In National Insurance Co. Ltd. Supra when
compensation was claimed for the death of 19 year old Engineering
students in a motor accident, the Tribunal had fixed the monthly
income notionally at Rs.12,000/- and when an argument was
advanced by the insurer against such fixation on the ground of
excessiveness, a Division Bench of this Court, of which myself was
also a member had repelled the contentions and uphold the
fixation observing that various aspects such as, the educational
careergraph, future prospects etc are also to be looked into while
fixing it. In the case on hand the factors relevant for consideration
had been made available by the claimants to the Tribunal in
evidence but, it failed to consider those while fixing the monthly
income as Rs.7,000/- notionally for computation of compensation
for loss of dependency. In the light of the evidence tendered by
the parents of the victim that he was a final year student of
Diploma in Electronics and that he had already been selected for a
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
job in the interview held at the Campus, the Tribunal ought to have
been vigilant of his imminence to get a decent employment
immediately on completion of his course and earn a reasonable
income had the accident resulting in his death not been occurred.
If the aforesaid evidence was duly and properly appreciated, the
approach of the Tribunal ought to have been different. Therefore,
on the strength of the dictum discussed above and the evidence
already on record, this Court finds every justification in fixing the
monthly income notionally as Rs.12,000/- in the place of
Rs.7,000/- fixed by the Tribunal.
9. The Apex Court in Reshma Kumari and Others
V.Madan Mohan and Another (2013 KHC 4253) had held that
the Tribunal shall follow the table and guidelines stated in Para 42
of Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT
802(SC)] for determination of compensation in cases of death.
10. It is pertinent to note that a table has been prepared by
the Apex Court in Sarla Verma supra having regard to three of its
earlier decisions viz; General Manager, Kerala State Road
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
Transport Corporation, Trivandrum v. Susamma Thomas
(Mrs.) & Others [1994 (2) SCC 176], U.P.State Road
Transport Corporation & others v. Trilok Chandra & others
[1996 (4) SCC 362] and New India Assurance Co. Ltd. v.
Charlie & another [2005 (10) SCC 720], for guidance in claims
made under Section 166 of the Motor Vehicles Act, 1988. The
Apex Court has held that the multiplier shown in column (4) of the
table must be taken having regard to the age of the deceased, so
as to achieve uniformity and conformity in the matter of grant of
compensation in death cases. It has also been directed to add
40% to the established monthly income where the deceased was
below the age of 40 years. Therefore, the Tribunal undoubtedly
has gone wrong in adding 50% to the monthly income fixed
notionally in consideration of future prospects to arrive at the
multiplicand, while computing compensation for loss of
dependency. In the above circumstances, this Court is inclined to
correct it by substituting 40% addition to the monthly income, in
the place of 50% addition taken by the Tribunal.
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
11. The Tribunal in the case on hand has adopted the
multiplier as 18 on the basis of the age of the deceased in strict
compliance with the directions of the Apex Court in Sarla Verma
and therefore, interference in that regard is strictly uncalled for.
For determination of the multiplicand, the deceased being a
bachelor, the Tribunal had deducted 50% of the income fixed for
computation of compensation in consideration of personal and
living expenses in strict compliance of paragraphs 30 to 32 of
Sarla Verma, which was also reiterated in Pranay Sethi and
therefore, interference is unwarranted. The Apex Court had
concluded in paragraph 61 of Pranay Sethi extracted above that
reasonable figures on conventional heads, namely, loss of estate,
loss of consortium and funeral expenses should be Rs.15,000/-,
Rs.40,000/- and Rs.15,000/- respectively. When viewed in that
backdrop this Court was occasioned to notice that the Tribunal
failed to follow the guidelines issued by the Apex Court as above
while awarding compensation under the conventional heads, which
take in loss of estate, funeral expenses and loss of consortium.
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
12. In view of Pranay Sethi, Rs.40,000/- is payable under
the head consortium and in view of Magma General Insurance
Co. Ltd. v. Nanu Ram & Ors. [2018 (11) SCALE 247], each of
the parents of the victim are entitled to get Rs.40,000/- under the
head Filial Consortium.
13. The Apex Court in Pranay Sethi while fixing reasonable
figures on conventional heads namely loss of estate, loss of
consortium and funeral expenses had also directed that the figures
fixed should be enhanced at the rate of 10% in every three years.
The judgment in Pranay Sethi having been rendered by the Apex
Court in the year 2017 and the current year being 2021, in view
of the above direction, it is right time to consider 10%
enhancement to the sums fixed as payable by the Apex Court
under conventional heads. The compensation awarded by the
Tribunal under the heads funeral expenses, being Rs.25,000/- an
amount excess than directed to be paid by the Apex court is
required to be deducted, therefrom. Therefore, figures of
compensation payable to the claimants under the conventional
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
heads in view of passage of three years would be as follows :
Loss of estate : Rs.16,500/- (Rs.15,000/- + 10%)
Funeral Expenses : Rs.16,500/- (Rs.15,000/-+ 10%) &
Consortium : Rs.44,000/- (Rs.40,000/- + 10%)
14. In the above modification, Rs.16,800/- (Rs.12,000/- +
40% of Rs.12,000/-) will be the multiplicand and Rs.18,14,400/-
[Rs.16,800/- x12/2x18] will be the compensation payable under
the head loss of dependency.
15. Thus, Rs.6,80,400/- would be payable additionally under
the head loss of dependency, Rs.6,500/-, under the head loss of
estate and Rs.88,000/- under the head loss of consortium.
Rs.25,000/- having been awarded by the Tribunal under the head
funeral expenses, Rs.8,500/- is liable to be deducted therefrom and
Rs.16,500/- will be payable as compensation under that head.
16. In the above modification, Rs.20,91,400/- [Rs.5,000/-
+ Rs.1000/- + Rs.16,500/- + Rs.18,14,400/- + Rs.1,50,000/- +
Rs.16,500/- + Rs.88,000/-] would be payable as total
compensation to the claimants for the death of the victim.
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
17. As rightly pointed out by the learned counsel for the
appellant, the Claimants are not entitled to get interest for the
period for which, filing of the Cross Objection was delayed.
Though the rate of interest is disputed, this Court is not inclined to
interfere with and therefore is maintained.
In the result, the appeal as well as Cross Objection are
allowed in part. The Claimants are entitled to get Rs.20,91,400/-
with interest at the rate as directed by the Tribunal in the
impugned award from the date of filing of the claim petition till
realisation, excluding the period of delay in filing the Cross
Objection.
Sd/
MARY JOSEPH,
JUDGE.
ttb
