Kerala High Court
National Insurance Company ... vs National Insurance Company ... on 12 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
RP.No.24 OF 2020 IN MACA. 1538/2018
FOR REVIEWING THE JUDGMENT DATED 20.02.2019 IN MACA 1538/2018(D)
OF HIGH COURT OF KERALA
REVIEW PETITIONER/3RD RESPONDENT IN MACA NO.1538/2018:
NATIONAL INSURANCE COMPANY LIMITED
P.M.C IX/36A, A.M.ROAD, PERUMBAVOOR, PIN-683 542.
REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G
ROAD, BAZAR (PO) ERNAKULAM, PIN - 682 016.
BY ADV. SRI.LAL GEORGE
RESPONDENTS/APPELLANTS AND RESPONDENTS NO.1 AND 2 IN MACA
NO.1538/2018:
1 SAVITHRI V.,
AGED 42 YEARS
W/O.LATE ENCAPPU K.M. @ MADHAVAN,
KOZHIMULLU HOUSE, KOTTODY (PO), KALLAR,
KASARAGOD DISTRICT AND NOW RESIDING AT N.G.O.
QUARTERS NO.TA/7/79, KAKKANADU, THRIKKAKARA,
ERNAKULAM, PIN - 682 028.
2 ARJUN.K.M.,
AGED 19 YEARS
S/O.LATE ENCAPPU K.M. @ MADHAVAN,
KOZHIMULLU HOUSE, KOTTODY (PO), KALLAR,
KASARAGOD DISTRICT AND NOW RESIDING AT N.G.O.
QUARTERS NO.TA/7/79,KAKKANADU, THRIKKAKARA,
ERNAKULAM, PIN - 682 028.
3 MINOR ANJU K.M.,
AGED 16 YEARS,
D/O.LATE ENCAPPU K.M. @ MADHAVAN,KOZHIMULLU HOUSE,
KOTTODY (PO), KALLAR,KASARAGOD DISTRICT AND
NOW RESIDING AT N.G.O. QUARTERS NO.TA/7/79,
KAKKANADU, THRIKKAKARA, ERNAKULAM, PIN - 682 028
REPRESENTED BY HER MOTHER SAVITHRI V
AGED 42 YEARS, W/O. LATE ENCAPPU K.M. @ MADHAVAN
KOZHIMULLU HOUSE, KOTTODY (PO), KALLAR, KASARAGOD
DISTRICT AND NOW RESIDING AT N.G.O. QUARTER NO.
TA/7/79, KAKKANADU, THRIKKAKARA ERNAKULAM,
PIN - 682 028.
RP.No.24 of 2020 in MACA. 1538/2018
2
4 CHOMU BHAI,
AGED 84 YEARS
W/O.LATE MAYILA NAIK, KOZHIMULLA HOUSE,
KOTTODY (PO), KOLLAR,KASARAGOD DISTRICT,
PIN - 671 532.
5 RAVI.M.A.
MEPPILLY HOUSE, CHITTANAD, KUMARAPURAM (PO),
ERNAKULAM DISTRICT, PIN - 683 565.
6 BIJESH.K.G.,
KANAKAPPILLY HOUSE, VALAMBOOR,
NORTHE MAZHUVANNOOR (PO),
ERNAKULAM DISTRICT, PIN - 686 669.
R1 TO R3 BY ADVS. SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANAKUMAR
SMT.VANDANA MENON
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08-03-
2021, THE COURT ON 12-03-2021 PASSED THE FOLLOWING:
RP.No.24 of 2020 in MACA. 1538/2018
3
ORDER
Dated this the 12th day of March 2021
The Review Petitioner Insurance Company is the 3 rd
respondent in M.A.C.A No.1538 of 2018 on the file of this
Court. The respondents 1 to 4 in the review petition were the
appellants in the above appeal. The parties are, for the sake
of convenience, referred to as per the status in the Review
Petition.
2. The respondents 1 to 4, the claimants in
O.P(M.V)No.2115 of 2015 on the file of the Additional Motor
Accidents Claims Tribunal, had filed the claim petition
seeking compensation on account of the death of the
husband of the 1st respondent, the father of the respondents
2 and 3 and the son of the 4th respondent. It was their case
that while the deceased named Encappu was driving a motor
cycle bearing Registration No.KL7/BW7361 through the
Ernakulam - Kakkanad public road, he was hit by a bus
RP.No.24 of 2020 in MACA. 1538/2018
bearing Registration No.KL40/2769 (offending vehicle)
driven in a rash and negligent manner by the 6th respondent
in the claim petition. The offending vehicle was owned by the
5th respondent in the claim petition and was insured with the
review petitioner. The Tribunal by its award dated
28.11.2017 allowed the claim petition in part, by directing
the review petitioner to pay the respondents 1 to 4 a total
compensation of Rs.13,20,923/. The compensation amount
was directed to be apportioned among the respondents 1 to 4
in the proportion of 30:30:30:10. The Tribunal, considering
the fact that the deceased was aged 51 and would only has 5
years of service left, adopted the multiplier of 9 and split it by
4½, considering the fact that the deceased would retire
within a period of 4½ years. Accordingly, the Tribunal held
that the petitioners were entitled for compensation for loss of
dependency for a period of 4 ½ years for the full salary of the
deceased and for the remaining period of 4 ½ years only on
50% of the salary of the deceased.
RP.No.24 of 2020 in MACA. 1538/2018
3. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the respondents 1 to 4 filed
M.A.C.A No.1538 of 2018. This Court after fixing the salary
of the deceased at Rs.31,073/ and by adopting the
multiplier at 11, as laid down in Sarla Verma v. Delhi
Transport Corporation [2010 (2) KLT 802 (SC)], allowed the
appeal by enhancing the compensation to Rs.35,34,925/
instead of Rs.13,20,923/ awarded by the Tribunal.
4. Aggrieved by the said judgment, the Insurance
Company is in Review.
5. Heard Sri. Lal George, learned counsel appearing
for the review petitioner and Sri.Pushparajan Kodoth, the
learned counsel appearing for respondents 1 to 4.
6. Sri. Lal George, the learned counsel appearing for
the review petitioner submitted that the Tribunal had rightly
followed the split multiplier method as laid down by the
Division Bench of this Court in Oriental Insurance Co. v.
Valsa [2015(1) KLT 781] and in Kumaran v. Roy Mathew
RP.No.24 of 2020 in MACA. 1538/2018
[2017(1) KLT 668] which were rendered following the decision
of the Hon'ble Supreme Court in Puttumma v. Narayana
Reddy [2014(1) KLT 738 (SC)]. The learned counsel
contended that as admittedly the deceased was left with only
4½ years of service and, therefore, the Tribunal ought to
have adopted the split multiplier method. He also contended
that this Court had erroneously awarded an amount of
Rs.2,00,000/ for loss of love affection after awarding an
amount of Rs.1,60,000/ for loss of consortium. Hence,
there is an error apparent on the face of record in the
impugned judgment, which warrants to be reviewed.
7. Sri.Pushaparajan Kodoth, the learned counsel
appearing for respondents 1 to 4 placed reliance on
paragraph 34 of decision of the Hon'ble Supreme Court in
Puttamma v. Narayana Reddy (supra) and contended that
the Supreme Court has held that unless there are specific
reasons and evidence on record, the Tribunal should not
apply the split multiplier method in a routine course, but
RP.No.24 of 2020 in MACA. 1538/2018
should apply the multiplier as per the ratio in Sarla Verma
v. Delhi Transport Corporation (supra). He submitted that
there is no error apparent on the face of record and the
review petition be dismissed.
8. The question that emerges for consideration in this
review petition is whether there is any error apparent on the
face of record warranting the review of the impugned
judgment.
9. Undisputedly, the deceased had only 4 ½ years
service left. The Tribunal, in the impugned award, had given
cogent reasons to adopt the split multiplier as laid down by
the Division Benches of this Court In Oriental Insurance
Co. Ltd. v. Valsa and Kumaran v. Roy Mathew (supra).
However, this Court without stating any reasons adopted
multiplier 11 and awarded compensation on the full salary of
the deceased even after the superannuation date. Similarly,
this Court has awarded compensation for loss of consortium
and also compensation for loss of love and affection which is
RP.No.24 of 2020 in MACA. 1538/2018
against the decision of this Court in Kunjandy L. and others
v. Rajendran [2020(2) KLT 315] and Chandran and others
v. Viju and others [2020(2) KLT 659]. In the above
circumstances, I find that there is an error apparent on the
face of record warranting the recalling of the judgment in
M.A.C.A No.1538 of 2018.
In the result, the Review Petition is allowed and the
judgment in M.A.C.A No.1538 of 2018 is recalled.
Sd/-
C.S.DIAS
JUDGE
DK
