Kerala High Court

National Insurance Company Ltd vs National Insurance Company Ltd on 24 March, 2021

MACA.No.3748 OF 2016(C)
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

               THE HONOURABLE MR.JUSTICE C.S.DIAS

   WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                    MACA.No.3748 OF 2016(C)

 AGAINST THE AWARD IN OP(MV) 194/2013 DATED 08-08-2016 OF MOTOR
               ACCIDENT CLAIMS TRIBUNAL , MANJERI


APPELLANT/2ND RESPONDENT:

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

             BY ADVS.
             SRI.MATHEWS JACOB (SR.)
             SRI.P.JACOB MATHEW
             SMT.PREETHY R. NAIR
             SMT.RUPA MARIAM THOMAS

RESPONDENTS/PETITIONERS:

      1      ANITHA
             W/O. SATHYADASAN @ SATHYADAS,CHERANGOTIL HOUSE,
             ANAMANGAD PO.,PERINTHALMANNA TALUK. PIN-679357

      2      AKHILA C.S
             D/O. SATHYADASAN @ SATHYADAS, CHERANGOTIL HOUSE,
             ANAMANGAD PO., PERINTHALMANNA TALUK. PIN-679357

      3      ANAGHA C.S
             D/O. SATHYADASAN @ SATHYADAS, CHERANGOTIL HOUSE,
             ANAMANGAD PO., PERINTHALMANNA TALUK. PIN-679357

             R1 BY ADVS. SRI.R.SREEHARI
             SRI.SACHIN VYAS

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA.No.3748 OF 2016(C)
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                             C.S.DIAS,J
                   ------------------------
                      MACA No. 3748 of 2016
                   ------------------------
                Dated this the 24th day of March, 2021

                               JUDGMENT

The appellant - insurance company was the 2nd

respondent in OP(MV)No.194 of 2013 on the file of the

Motor Accidents Claims Tribunal, Manjeri. The

respondents in the appeal were the petitioners in the

claim petition. The parties, for the sake of convenience

and wherever the context requires, are referred to as per

their status in the claim petition.

2. The petitioners had filed the claim petition

under Section 166 of the Motor Vehicles Act, claiming

compensation on account of the death of Sri.Sathyadasan

@ Sathyadas (deceased), the husband of the 1 st petitioner

and the father of the petitioners 2 and 3. It was the case

of the petitioners that : on 26.02.2012 while the deceased

was riding a motorcycle bearing registration No.KL 53 B

3603 through the Perinthalmanna-Anamangad public MACA.No.3748 OF 2016(C)

road, a Maruti Alto Car bearing registration No.KL 52

9893 (offending vehicle) driven by the 1 st respondent in a

rash and negligent manner, hit the motorcycle of the

deceased. The deceased succumbed to the injuries on the

same day. The offending vehicle was owned by the 1 st

respondent and insured with the 2nd respondent. The

deceased was a school teacher in the AMUP School,

Vengad and he was drawing a salary of Rs.31,880/- per

month. The petitioners are the dependants of the

deceased. Hence, the respondents 1 and 2 are liable to

pay compensation to the petitioners which they quantified

at Rs.54,00,000/-

3. The 1st respondent filed a written statement

contending that the accident occurred solely due to the

negligence on the part of the deceased. The offending

vehicle was insured with the 2nd respondent. The amount

of compensation claimed was excessive. Hence, the claim

petition as against the 1st respondent be dismissed.

4. The 2nd respondent filed a written statement also

contending that the accident occurred due to the

negligence on the part of the deceased. The amount of MACA.No.3748 OF 2016(C)

compensation claimed was excessive and was without

any basis.

5. Along with the claim petition the petitioners

had also filed OP(MV)No.192/2013 seeking

compensation from the respondents for the damage

caused to the motorcycle. The Tribunal, by its order in

IA No.4105/2015, consolidated and jointly tried both the

claim petitions.

6. The petitioners marked Exts.A1 to A19 series

in evidence. The respondents marked Ext.D1 to D3 in

evidence.

7. The Tribunal, after analysing the pleadings and

materials on record, by the impugned award allowed the

claim petition by directing the 2 nd respondent to pay an

amount of Rs.78,52,447/- along with interest at the rate

of 9% per annum from the date of petition till the date

of deposit and proportionate costs.

8. Aggrieved by the impugned award passed by

the Tribunal, the insurance company - the 2 nd

respondent - is in appeal.

MACA.No.3748 OF 2016(C)

9. Heard Sri. Mathews Jacob, the learned Senior

Counsel appearing for the appellants and Sri.

R.Sreehari, the learned Counsel appearing for the

respondents.

10. The question that arises for consideration in

this appeal is whether the quantum of compensation

awarded by the Tribunal is reasonable and just?

11. The learned Senior Counsel for the appellant

contended that the Tribunal has without any basis fixed

the salary of the deceased at Rs.51,600/-. Admittedly, by

Ext.A16 salary certificate, the deceased was only

drawing a monthly salary of Rs.31,800/-. The Tribunal

on assuming that the 10th pay revision would come into

effect from 1.7.2014 fixed the salary of the deceased at

Rs.51,600/-, which is erroneous. Similarly, it was argued

that the Tribunal had only deducted 1/4th of the

compensation under the head 'loss of dependency'

towards the personal living expenses of the deceased,

which had to be 1/3rd as per the law laid down in

Sarala Varma and others v. Delhi Transport MACA.No.3748 OF 2016(C)

Corporation and others [(2010) 2 KLT 802]. It was

also argued that the Tribunal ought to have deducted

20% of the salary of the deceased, towards income tax

as he had taxable income. Moreover, as the deceased

was a Government servant and was 49 years at the time

of his death, he would have superannuated within 6

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

adopted the doctrine of split multiplier. Likewise, the

Tribunal ought not to have awarded an amount of

Rs.3,00,000/- under the head 'love and affection'

because the Tribunal had awarded compensation under

the head 'loss of consortium'. Similarly, the Tribunal had

awarded excessive amounts under the conventional

heads which again is against the law laid in Sarala

Varma (supra). Therefore, the compensation awarded

by the tribunal has to be scaled down in line with the

precedents laid down by the Hon'ble Supreme Court.

12. Per contra, Sri.R.Sreehari, the learned counsel

for the respondents argued that the income tax slab as

in the year 2012 was only 10% , after the exempted limit MACA.No.3748 OF 2016(C)

of Rs.1,80,000/- per annum, for an annual income of

Rs.5,00,000/-. Hence, only an amount of 10% can be

deducted from the total salary of the deceased, after the

exempted limit. He, however, fairly conceded that the

Tribunal ought to have only adopted the salary reflected

in Ext.A16 and could not have awarded compensation of

the future revision of the salary. He relied on the

decision of the Hon'ble Supreme Court in Puttamma v.

Narayana Reddy [2014(1)KLT 738] and argued that the

doctorine of split multiplier can only be adopted for

cogent reasons. The appellant had not raised such a

contention in the written statement, therefore, the

appellant is precluded from raising the said contention

for first time in the appeal. He prayed that reasonable

and just compensation may be awarded as contemplated

under law.

13. A Constitution Bench of the Hon'ble Supreme

Court in National Insurance Company Ltd. v. Pranay

Sethi [(2017) 16 SCC 680], has held that Section 168 of

the Motor Vehicles Act, 1988, deals with the concept of MACA.No.3748 OF 2016(C)

'just compensation' and the same has to be determined

on the foundation of fairness, reasonableness and

equitability on acceptable legal standards. The

conception of 'just compensation' has to be viewed

through the prism of fairness, reasonableness and non-

violation of the principle of equitability.

14. The appellant does not dispute the fact that by

Ext.A2 final report, the police have found that it was

the 1st respondent who was negligent in causing the

accident.

15. The accident occurred on 26.6.2012. The

Tribunal without any foundation in the pleadings or

without any material has assumed that the deceased

would have got revision in the salary in view of the

recommendation of the 10th Pay Commission.

Accordingly, the Tribunal fixed the salary of the

deceased at Rs.51,600/-. Surprisingly, there was no

material for the Tribunal to arrive at such a conclusion.

Admittedly, as per Ext.A16, the deceased was drawing a

monthly salary of Rs.31,880/-. In National Insurance MACA.No.3748 OF 2016(C)

Company v. Birendar Kumar and others [2020 KHC

6026] it has been held that income tax has to be

deducted from the salary, to fix the net salary for the

purpose of compensation.

16. It is brought to the notice of this Court that the

income tax slab in the year 2011-2012, was 10% for

income upto Rs.5,00,000/- subject to the exemption

slab of Rs.1,80,000/- per annum. Therefore, the

deceased had an income tax exemption up to

Rs.1,80,000/- per annum, and had a taxable income only

for the balance amount of Rs.2,02,560/-. Hence, the

deceased would have to pay tax at the rate of 10%, for

the above amount, which would come to an amount of

Rs.20,256/-per annum. Accordingly, I re-fix the salary of

the deceased, after the statutory income tax deduction

of 10%, at Rs.30,192/- per month.

17. With regard to the contention regarding

adopting the split multiplier, the Hon'ble Supreme Court

in Puttamma (supra) has categorically laid down the

law that doctrine of split multiplier should not be used MACA.No.3748 OF 2016(C)

unless for cogent reasons.

18. Undisputedly, the appellant had not raised the

said contention before the Tribunal, either in the

written statement or at the time of hearing. The

deceased was aged only 49 years. He had a further

service of more than six years. As noted by the Tribunal,

the deceased would have been entitled for future

revisions in his salary, if he was alive. It was only on

account that no materials were produced before the

Tribunal regarding the recommendation of Pay

Commission that this Court scaled down the salary of

the deceased and fixed it as per Ext.A16. In such

circumstances, particularly, where there is no plea for

adopting the split multiplier method and the same being

raised for first time before this Court, I am of the

considered opinion that there is no cogent reason made

out before this to adopt the doctrine of split multiplier

as laid down in Puttamma (supra).Accordingly, I reject

the prayer to adopt the split multiplier method. MACA.No.3748 OF 2016(C)

Personal living expenses

19. The petitioners are the wife and children of the

deceased and are three in number. In the light of the

decisions in Sarala Varma and Pranay Sethi (supra),

1/3rd of the total income of the deceased has to be

deducted towards his personal living expenses.

However, the Tribunal has deducted 1/4th of the amount,

which is against the law laid down in the above-cited

decisions. Hence, I deduct 1/3 rd of the income of

deceased towards his living expenses, instead of 1/4th.

Multiplier

20. As the deceased was 49 years of age at the

time of his death, the relevant multiplier is '13'. In the

light of the decisions in Sarala Varma and Pranay

Sethi (supra), the petitioners are entitled for 30% of

the compensation under the head 'loss of dependency

towards future prospects'. Following the above

parameters, I re-fix and hold that the petitioners are

entitled only for an amount of Rs.40,81,958/- under the

head 'loss of dependency with future prospects', instead MACA.No.3748 OF 2016(C)

of Rs.72,79,506/- awarded by the Tribunal.

Conventional Heads

21. Now coming to the conventional heads of

claim. The Tribunal has awarded an amount of

Rs.25,000/- under the head 'funeral expenses',

Rs.1,00,000/- under the head 'loss of estate' and

Rs.1,00,000/- under the head 'loss of consortium'.

22. The Hon'ble Supreme Court in Pranay Sethi

(supra) has held that only an amount of Rs.15,000/- can

be awarded under the heads 'funeral expenses' and 'loss

of estate' and Rs.40,000/- under the head 'loss of

consortium'. Accordingly, I scale down the amounts

awarded under the head 'funeral expenses' from

Rs.25,000/- to Rs.15,000/-, and under the head 'loss of

estate' from Rs.1,00,000/- to Rs.15,000/- . Like wise, as

the 1st petitioner is the wife and the petitioners 2 and 3

are the children, they entitled to Rs.40,000/- each as

spousal consortium and parental consortium. Hence,

they are entitled to the total amount of Rs.1,20,000/-

under the said head of claim.

MACA.No.3748 OF 2016(C)

Pain and suffering

23. The Tribunal has awarded an amount of

Rs.3,00,000/- under the head 'pain and suffering'. This

Court in Kunjandy v. Rajendran [2020(2) KLT 315] has

held that once compensation is awarded under the head

'loss of consortium', no compensation can be awarded

under the head 'loss of love and affection'. In light of the

said ratio, I set aside the amount awarded under the

head 'loss of love and affection'.

Other heads of claim

24. With respect to the amount of compensation

awarded by the Tribunal under the head transport,

clothing, pain and sufferings I find that the Tribunal

has awarded reasonable and just compensation.

25. On an overall re-appreciation of the pleadings

and materials on record, the law laid down by the

Hon'ble Supreme Court in the afore-cited precedents, I

allow the appeal by modifying the impugned award

passed by the Tribunal by re-fixing the total quantum of

compensation payable to the respondents/petitioners as MACA.No.3748 OF 2016(C)

modified and recalculated above and given in the table

below for easy reference.



     Sl.   Heads of claim             Amount awarded by       Amounts
     No                                the Tribunal (in    modified and
                                           rupees)        recalculated by
                                                             this Court
     1     Transport                         2,000/-          2,000/-
     2     Clothing                          1,000/-          1,000/-
     3     Funeral expenses                  25,000/-        15,000/-
     4     Pain and suffering                10,000/-        10,000/-
     5     Loss of estate                   1,00,000/-       15,000/-
     6     Loss of consortium               1,00,000/-      1,20,000/-
     7     Loss of dependency with         72,79,506/-     40,81,958/-
           future prospects
     8     Loss    of   love    and         3,00,000/-          nil
           affection
     9     Medical expenses                  34,741/-           nil
                                           78,52,500/-     42,44,958/-

In the result, the appeal is allowed by modifying

the impugned award and directing the appellant to pay

the respondents/petitioners an amount of Rs.42,44,958/-

as compensation with interest at the rate of 9% per

annum from the date of petition till the date of payment

with proportionate costs. Needless to mention that if

the appellant has already deposited any amount, as

directed by this Court on 30.01.2017, the appellant MACA.No.3748 OF 2016(C)

need only deposit the balance amount within a period of

two months from the date of receipt of a certified copy

of this judgment after deducting the liability if any, of

the respondents/ petitioners towards court fee and