Kerala High Court

K.P.Lathika vs Vinod on 22 March, 2022

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                   MACA NO. 1785 OF 2011
AGAINST THE AWARD DATED 05.04.2011 IN OPMV 786/2009 OF MOTOR
            ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANTS/CLAIMANTS IN THE TRIBUNAL:

    1    K.P.LATHIKA
         AGED 48 YEARS
         D/O.JANAKI, FLAT NO.108, GARDEN GATE APARTMENTS,
         KADAVANTHRA, KOCHI - 20.

    2    RAKESH S. (MENTALLY RETARDED)
         S/O.LATE SANTHOSH KUMAR, FLAT NO.108, GARDEN GATE
         APARTMENTS, KADAVANTHRA, KOCHI - 20., REP. BY HIS
         MOTHER K.P.LATHIKA - THE 1ST APPELLANT

    3    RAHUL S.
         S/O.LATE SANTHOSH KUMAR, FLAT NO.108, GARDEN GATE
         APARTMENTS, KADAVANTHRA, KOCHI - 20.

    4    ROHIT.S
         AGED 18 YEARS
         SANTHOSH KUMAR, , FLAT NO.108, GARDEN GATE
         APARTMENTS, KADAVANTHRA, KOCHI - 20.

         BY ADV SRI.D.ANIL KUMAR


RESPONDENTS/RESPONDENTS:

1 VINOD C. S/O.CHANDRAN NELLICODE VEEDU, MINI INDUSTRIAL ESTATE, KODUVAYOOR, PALAKKAD - 678 501.

2 C.B.VIJAYA W/O.C.AYYAPPAN.

MANJAPRA HOUSE, PLAZHI, KALLAPPADOM, PAZHAYANNOOR P.O., TRISSUR DISTRICT, PIN 680 587.

MACA NO.1785 of 2011 & Co.No.43 of 2013

3 THE NEW INDIA ASSURANCE COMPANY LTD.

PALAKKAD BRANCH OFFICE, PALAKKAD - 678014

BY ADV LAL GEORGE

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, ALONG WITH CO.43/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.1785 of 2011 & Co.No.43 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944 CO NO. 43 OF 2013 AGAINST THE AWARD DATED 05.04.2011 IN OPMV 786/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM AND THE ORDER DATED 26.11.2011 IN I.A NO.528/2011 ON THE FILES OF THE MACT, ERNAKULAM APPELLANT:

THE NEW INDIA ASSURANCE COMPANY LTD. PALAKKAD BRANCH OFFICE, PALAKKAD, REP. BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.

BY ADV SRI.LAL GEORGE

RESPONDENTS:

    1        K.P.LATHIKA
             AGED 48 YEARS

D/O.JANAKI, FLAT NO.108, GARDEN GATE APARTMENTS, KADAVANTHRA, KOCHI - 20.

2 RAKESH S. (MENTALLY RETARDED) S/O.LATE SANTHOSH KUMAR, FLAT NO.108, GARDEN GATE APARTMENTS, KADAVANTHRA, KOCHI - 20., REP. BY HIS MOTHER K.P.LATHIKA

3 RAHUL S.(MINOR) S/O.LATE SANTHOSH KUMAR, FLAT NO.108, GARDEN GATE APARTMENTS, KADAVANTHRA, KOCHI - 20., REP. BY HIS MOTHER K.P.LATHIKA

4 ROHIT.S AGED 18 YEARS SANTHOSH KUMAR, FLAT NO.108, GARDEN GATE APARTMENTS, KADAVANTHRA, KOCHI - 20. MACA NO.1785 of 2011 & Co.No.43 of 2013

5 VINOD C. S/O.CHANDRAN NELLICODE VEEDU, MINI INDUSTRIAL ESTATE, KODUVAYOOR, PALAKKAD - 678 501.

6 C.B.VIJAYA W/O.C.AYYAPPAN.

MANJAPARA HOUSE, PLAZHI, KALLAPPADOM, PAZHAYANNOOR P.O., TRISSUR DISTRICT, PIN 680 587. (DELETED)

THE 6TH RESPONDENT IS DELETED FROM THE PARTY ARRAY IN THE CROSS OBJECTION AT THE RISK OF THE APPELLANT AS PER ORDER DATED 17.12.2021 IN IA. NO.1/2021 IN C.O NO.43/2013 IN MACA NO.1785/2011

BY ADV SRI.D.ANIL KUMAR

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, ALONG WITH MACA.1785/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.1785 of 2011 & Co.No.43 of 2013

COMMON JUDGMENT

Dated this the 22nd day of March, 2022

As the appeal and cross objection arise out of the

same award, they have been disposed of by this common

judgment. The appellants were the petitioners in O.P

(MV) No.786/2009 on the file of the Motor Accidents

Claims Tribunal, Ernakulam. The respondents in the

appeal were the respondents before the Tribunal.

2. The appellants had filed the claim petition under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation on account of the death of Santhosh

Kumar (deceased) - the husband of the first appellant

and the father of the appellants 2 to 4. It was their case

that, on 22.06.2008, while the deceased was travelling

with the appellants 1 and 2 from Aluva to Palakkad in

their car bearing registration No. KL 9/H 4982, a bus

bearing registration No. KL -8/W 5650, driven by the MACA NO.1785 of 2011 & Co.No.43 of 2013

first respondent in a negligent manner came from the

opposite direction and hit the car of the deceased. Even

though the deceased was rushed to the Paalana Institute

of Medical Sciences, Kannadi, he lost his life. The

deceased was employed as Deputy Controller, Legal

Metrology Department, Government of Kerala and was

drawing a monthly salary of Rs.29,265/-. The bus was

owned by the second respondent and insured with the

third respondent. The appellants were the dependents of

the deceased. Hence, the appellants claimed a

compensation of Rs.29,76,838/- from the respondents,

which claim was limited to Rs.29,00,000/-.

3. The first respondent did not contest the

proceeding and was set ex parte.

4. The second respondent had filed a written

statement admitting that the bus was owned by him.

However, the second respondent contended that as the

bus was insured with the third respondent, it was the

third respondent who was to indemnify his liability, if MACA NO.1785 of 2011 & Co.No.43 of 2013

any.

5. The third respondent had filed a written

statement contending that the accident occurred while

the deceased was attempting to over take another car.

In order to avoid a collision, the first respondent swerved

the vehicle to the right side. Therefore, at any rate, the

deceased was guilty for contributory negligence. Also,

the claim petition was bad for non-joinder of necessary

parties, as the appellants had not impleaded the owner,

driver and the insurer of the other vehicle involved in the

accident.

6. The appellants had produced and marked

Exhibits A1 to A9 in evidence. The respondents did not

let in any evidence.

7. The Tribunal, after analyzing the pleadings and

materials on record, adopted the split multiplier method

and fixed the income of the deceased for a period of one

year at Rs.29,265/- per month as per Exhibit A8 salary

certificate, and, thereafter, fixed the income of the MACA NO.1785 of 2011 & Co.No.43 of 2013

deceased at Rs.4000/- per month and adopted the

multiplier of '11'. Accordingly, the Tribunal permitted

the appellants to recover from the third respondent an

amount of Rs.7,46,000/- with interest at the rate of 8%

per annum from the date of petition till the date of

realisation and proportionate cost.

8. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioners have preferred

the appeal and aggrieved by the compensation awarded

by the Tribunal, the third respondent-insurer has

preferred the cross objection. The third respondent has

also challenged the order in I.A. No.5258/2011, which

was filed to review the award.

9. Heard; Sri. D.Anilkumar, the learned counsel

appearing for the appellants/petitioners and Sri.Lal

George, the learned counsel appearing for the third

respondent /insurer.

10. The point that arises for consideration in the

appeal is whether the quantum of compensation awarded MACA NO.1785 of 2011 & Co.No.43 of 2013

by the Tribunal is reasonable and just.

Negligence and liability

11. Exhibit A3 final report filed by the

Kuzhalmandam Police in Crime No.251/2008

substantiates that the accident occurred due to the

negligence of the first respondent. Indisputably, the

second respondent was the owner and the third

respondent was the insurer of the bus. The respondents

have not let in any evidence to discredit Exhibit A3 final

report. The third respondent has also not proved that

the second respondent had violated the insurance policy

conditions. Therefore, the third respondent is to

indemnify the liability of the second respondent arising

out of the accident.

Income of the deceased

12. The appellants had specifically pleaded that the

deceased was employed as a Deputy Controller, Legal

Metrology Department, Government of Kerala and was

earning a monthly income of Rs.29,265/. To substantiate MACA NO.1785 of 2011 & Co.No.43 of 2013

their pleading, they had produced Exhibit A8 salary

certificate issued by the Controller of the Legal

Metrology Department, Government of Kerala,

Thiruvananthapuram, wherein it is certified that the

deceased was drawing a monthly salary of Rs.29,265/-.

13. The Tribunal, for the reason that the deceased

had completed the age of 54 years and would

superannuate at the age of 55, took the salary of the

deceased at Rs.29,265/- per month for a period of 12

months and adopted the multiplier of '12', after

deducting the admitted income tax of Rs.16,120/-.

Thereafter, the Tribunal, fixed the notional income of the

deceased at Rs.4000/- per month for a period of ten

years and adopted the multiplier of '11'. Accordingly,

the Tribunal fixed the compensation for the loss of

dependency at Rs.6,93,000/-.

Split multiplier

14. Sri.D. Anilkumar, the learned counsel appearing

for the appellants placed reliance on the decision of the MACA NO.1785 of 2011 & Co.No.43 of 2013

Hon'ble Supreme Court in R.Valli & Others v. Tamil

Nadu State Transport Corporation Ltd. [JT 2022(2)

SC 106], to drive home his contention that the concept

of adopting the split multiplier is no longer good law in

view of the categoric declaration of law by the

Constitutional Bench in National Insurance Co. Ltd. v.

Pranay Sethi [2017 (16) SCC 680]. Therefore, he

contended that the entire salary of the deceased had to

be taken by the Tribunal to fix the loss of dependency.

Hence, the appeal may be allowed.

15. Sri. Lal George, the learned counsel appearing

for the third respondent - insurer placed reliance on the

decision of the Hon'ble Supreme Court in Puttamma

and others v. KL Narayana Reddy and another

[2014(1) KLT 738] and contended that the Tribunal was

justified in adopting the split multiplier method for the

cogent reasons mentioned in the award. In fact, the

concession shown by the Tribunal in awarding one year's

salary, when the deceased was on the verge on MACA NO.1785 of 2011 & Co.No.43 of 2013

retirement was wrong. Therefore, the cross objection

may be allowed.

16. In N. Jayasree and others v. Cholamandalam

M/s General Insurance Company Ltd.[ 2021 SCC

Online SC 967], K.R.Madhusudan and others v.

Administrative officer [2011 (4) SCC 689],

Puttamma(supra) and R.Valli & others (supra), the

Hon'ble Supreme Court has emphatically declared that,

in the light of ratio decedendi of the Constitutional

Bench decision in Pranay sethi (Supra), the three Judge

Bench decision in Reshma Kumari & Others v. Madan

Mohan & another [ 2013(9) SCC 65] and Sarla Verma

v. Delhi Transport Corporation [2010(2) KLT

802(SC)], the yardstick to calculate the compensation

has been standardised. Therefore, adopting different

yardsticks or following different methods, including

adopting the split multiplier, is no longer permissible in

law.

17. In view of the unambiguous exposition of law, I MACA NO.1785 of 2011 & Co.No.43 of 2013

am of definite view that the split multiplier method

adopted by the Tribunal is erroneous and wrong. Thus,

I set aside compensation determined by the Tribunal

towards loss of dependency and re-determine the same,

following the principles laid down in the above cited

precedents.

18. Indisputably, as per Exhibit A8, the deceased

was earning a monthly salary of Rs.29,265/- i.e, an

annual income of Rs.3,51,180/-. The appellants had

stated that the deceased had paid an amount of

Rs.16,120/- towards income tax in the assessment year

2007-2008.

19. In Kalpanaraj & others v. Tamil Nadu State

Transport Corporation [(2015) 2 SCC 764], the

Hon'ble Supreme Court has held that what needs to be

deducted from the gross income of the injured/deceased

is only the income tax and the professional tax.

20. The appellants have admitted that the deceased

had paid an amount of Rs.16,120/- towards income tax. MACA NO.1785 of 2011 & Co.No.43 of 2013

I accept the same. In addition to the said amount, I also

fix an amount of Rs.380/- towards the professional tax of

the deceased, thus totalling to an amount of Rs.16,500/-

towards income tax and professional tax. Therefore, I

hold that the deceased had earned a net annual income

of Rs.3,34,680/- viz. Rs.27,890/- per month, rounded off

to Rs.27,900/-.

Multiplier

21. The deceased was aged 54 years at the time of

accident/death. In the light of the law laid down in

Sarala Verma (supra) the relevant multiplier to be

adopted is '11'.

Dependents of the deceased

22. The appellants were the wife and children of the

deceased. They are four in number. As laid down in

Sarala Verma and Pranay Sethi (supra), one fourth of

the compensation has to be deducted towards the

personal living expenses of the deceased. MACA NO.1785 of 2011 & Co.No.43 of 2013

Future prospects

23. Following the principles in Sarala Verma and

Pranay Sethi (supra) and considering the fact that the

deceased was aged 54 years at the time of the accident,

and that he was permanently employed, I hold that the

appellants are entitled to future prospects at 15%.

Loss of dependency

24. Taking into account the above mentioned factors,

namely, the net monthly income of the deceased at

Rs.27,890/-, the multiplier at '11', future prospects at

15% and after deducting one fourth of the compensation

towards personal living expense of the deceased, I re-fix

the compensation for 'loss of dependency' at

Rs.31,75,276/-, instead of Rs.6,93,000/- awarded by the

Tribunal.

Conventional/Traditional heads of compensation

25. In paragraph 59.8 of Pranay Sethi (supra) it is

held that the dependents of the deceased are entitled for

compensation under the conventional heads viz., 'funeral MACA NO.1785 of 2011 & Co.No.43 of 2013

expenses', 'loss of estate' and 'loss of consortium' at

Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent,

respectively. It is further held that the above amounts

have to be enhanced by 10% every three years.

26. In N.Jayasree (supra) and Rasmita Biswal

and others vs. The Divisional Manager, National

Insurance Co., Ltd and another [2021 SCC Online

SC 1193], the Hon'ble Supreme Court, for the accidents

that happened in the years 2011 and 2013, respectively,

has granted 10% escalation on the conventional heads,

irrespective of the dates of the accident. Thus, it is to be

construed and inferred that the 10 % escalation is to be

granted every three years from the date of

pronouncement of the judgment in Pranay Sethi

(supra), which was rendered on 31.10.2017, and not for

accidents that occur every three years after 31.10.2017.

Thus, the dependents of the deceased are, after

31.10.2020, entitled to amounts of Rs.16,500/- each

under the heads 'funeral expenses' and 'loss of estate', MACA NO.1785 of 2011 & Co.No.43 of 2013

and Rs.44,000/- under the head 'loss of consortium'.

27. In the instant case, the Tribunal has awarded an

amount of Rs.5,000/- under the head 'funeral expenses',

and Rs.10,000/- under the head 'loss of consortium'.

Therefore, I enhance the compensation under the head

'funeral expenses' by a further amount of Rs.11,500/-

and under the head 'loss of consortium' by Rs.1,66,000/-

i.e. an amount of Rs.44,000/- each to the appellants

towards 'loss of consortium', totalling to an amount of

Rs.1,76,000/-. I also award the appellants an amount of

Rs.16,500/- under the 'loss of estate'.

Pain and sufferings and loss of love and affection

28. The Tribunal has awarded an amount of

Rs.10,000/- under the head 'pain and sufferings' .

29. In paragraph 19 of Sarla Varma (supra), the

Hon'ble Supreme Court has held that no amount shall

be awarded to the dependents of the deceased under the

head 'pain and sufferings' in the case of instantaneous

death. The said view has been reiterated in United MACA NO.1785 of 2011 & Co.No.43 of 2013

India Insurance Co. Ltd v. Satinder Kaur @

Satwinder Kaur and others- [ ((2020) SCC Online

410]. Hence, I set aside the amount of Rs.10,000/-

awarded under the head 'pain and sufferings' as the

deceased had died instantaneously.

30. The Tribunal has awarded an amount of

Rs.25,000/- under the head 'loss of love and affection'.

31. In New India Assurance Co. v. Somwati and

others [(2020) 9 SCC 644] the Hon'ble Supreme Court

has held that once compensation is awarded under the

head 'loss of consortium', no amount shall be awarded

under the head 'loss of love and affection', as it would

amount to duplication of compensation. Therefore, I set

aside the amount of Rs.25,000/- awarded under the head

'loss of love and affection'.

32. With respect to the compensation awarded under

the head 'transportation expenses', I find the same to be

reasonable and just.

33. On a comprehensive re-appreciation of the MACA NO.1785 of 2011 & Co.No.43 of 2013

pleadings and materials on record and the law laid down

in the afore-cited precedents, I hold that the

appellants/petitioners are entitled to enhancement of

compensation as modified and re-calculated above and

given in the table below for easy reference.

 Sl No.     Head of Claim         Amount          Amounts
                               awarded by       modified and
                               the Tribunal     recalculated
                                (in rupees)     by this Court
                                                 (in rupees)

     1     Transportation           3000              3000
           expenses

     2     Funeral expenses         5000              16500

     3     Loss of estate             0               16500


           sufferings


           affection

     6     Loss of                  10000            176000
           consortium

     7     Loss of                 693000            3175276
           dependency

           Total                   7,46,000      33,87,276

MACA NO.1785 of 2011 & Co.No.43 of 2013

34. Even though the appellants had claimed only an

amount of Rs.29,00,000/- towards compensation, I have

awarded them a compensation of Rs.33,87,276/-,

following the principles laid down in Sarla Verma and

Pranay Sethi (supra), by awarding them compensation

under the conventional heads as well as future prospects

and also set aside the split multiplier method followed by

the Tribunal in view of the principles in N. Jayasree

(supra). Thus, I have awarded them more compensation

than what is claimed in the claim petition. The said

course is permissible in view of the law laid down in