Cholamandalam MS General Insurance Company Limited v. N. Jayasree, Sivaram V. Nair, Anjana Nair, and Nirmala S.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 9TH DAY OF AUGUST 2017 / 18TH SRAVANA, 1939** **MACA.No. 1560 of 2013** **(AGAINST THE AWARD IN OPMV 834/2011 of M.A.C.T.,KOTTAYAM DATED 26-04-2013)** ## **APPELLANT(S)/3RD RESPONDENT** **CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED ERNAKULAM, NOW REPRESENTED BY ITS ASSISTANT MANAGER-CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/PETITIONERS:** **1. N. JAYASREE SANTHIKALATHIL HOUSE, PERUNNA EAST, CHANGANACHERRY PIN. 686 320.** **2. SIVARAM V. NAIR SANTHIKALATHIL HOUSE, PERUNNA EAST, CHANGANACHERRY PIN. 686 320.** **3. ANJANA NAIR SANTHIKALATHIL HOUSE, PERUNNA EAST, CHANGANACHERRY PIN. 686 320.** ## **4. NIRMALA S.** **SANTHIKALATHIL HOUSE, PERUNNA EAST, CHANGANACHERRY PIN. 686 320.** **R1-R4 BY ADV. SRI.PHILIP T.VARGHESE BY ADV. SRI.THOMAS T.VARGHESE BY ADV. SRI.ZAKEER HUSSAIN R BY ADV. SMT.ACHU SUBHA ABRAHAM R BY ADV. SMT.N.ASWATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. .................................................................... MACA No.1560 of 2013 .................................................................... Dated this 9[th] the day of August, 2017. ## J U D G M E N T ## Ravikumar, J. This appeal is directed against the judgment and award dated 26.04.2013 in OP(MV) No.834/2011 passed by the Motor Accidents Claims Tribunal, Kottayam. The appellant herein, the third respondent therein, was the insurer of the offending vehicle involved in the accident. The claim petition was filed by the respondents herein under Section 166 of the Motor Vehicles Act, 1988 claiming a compensation of Rs.1 crore for the death of Sri.N.Venugopalan Nair, the husband of the first respondent, the father of second and third respondents and the son-in-law of the fourth respondent. The accident in which Sri.N.Venugopan Nair lost his life occurred on 20.06.2011. On that fateful day, he was travelling in the maruthi car bearing Reg.No.KL-33/A-2270 driven by the second respondent herein (second petitioner). When they reached at Karikkam near Kottarakkara, the jeep bearing Reg.No.KL-16/E-3699, driven by the second respondent in the MACA1560/13 -2- claim petition, dashed against their car. Consequently, Sri.Venugopalan Nair sustained severe injuries and he succumbed to them on the same day itself. It was in the said circumstances that the aforementioned claim petition was filed. The Tribunal as per the impugned award granted an amount of Rs.74,50,971/- as compensation with interest at the rate of 7.5% per annum from the date of the petition till the date of realisation. The third respondent in the claim petition, who is the insurer of the offending vehicle, filed this appeal raising various contentions, including exorbitancy of the quantum of compensation awarded. 2. We have heard the learned Senior counsel, Sri.Mathews Jacob, appearing for the appellant and also the learned counsel, Adv.Philip T.Varghese, appearing for the respondents. 3. Evidently, there is no dispute regarding the fact that Sri.Venugopalan Nair lost his life in the motor vehicle accident in question. The cause of the accident viz., negligence on the part of the second respondent in the claim petition and the liability of the appellant to indemnify the first respondent in the claim petition, MACA1560/13 -3- the insured owner of the offending vehicle, are also not in dispute. The main challenge of the appellant/third respondent is that the Tribunal went wrong in deciding the rate of deduction to be made towards the personal and living expenses of the deceased which he would have incurred had he been alive, in terms of the dictum laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. In elaboration of the said contention, it is submitted by the learned Senior counsel that the Tribunal committed a palpable error in treating the fourth respondent/fourth petitioner as the surviving dependent family member of the deceased. It is submitted that merely because at the time of the accident, she was living in the house of the deceased, who was her son-in-law, it could not have been taken as a reason to hold that she was a surviving dependent family member of the deceased eligible and entitled to get compensation under the head loss of dependency. This contention was countered by the learned counsel appearing for the respondents/petitioners and it is submitted that the fact that she was living along with the deceased, MACA1560/13 -4- was not specifically controverted by the respondents. The learned counsel has also attempted to canvass the position that she was rightly treated as a legal representative of the deceased by the Tribunal. It is submitted that though the relationship between the fourth respondent/fourth petitioner and the deceased was mistakenly taken as mother and son by the Tribunal, the fact is that it was specifically mentioned in the claim petition that she is the mother-in-law of the deceased. The question is as to whether she would fall under the expression 'legal representative'. Even if it is found so, the next question is whether she could be treated as a surviving dependent family member of the deceased entitled to get compensation? The term 'legal representative' is defined under Rule 2(k) of the Kerala Motor Vehicles Rules, 1989 as hereunder:- ““Legal Representative” means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased.” 4. It is to be noted that in the claim petition as MACA1560/13 -5- regards the fourth petitioner (fourth respondent herein), it was stated that she has two daughters and she was being maintained by - the deceased. In the decision in Union Co operative Insurance Society Ltd. v. Bharitiben [AIR 1979 Guj 121)] the High Court of Gujarat held that for the death of a married son who had left behind his widow and children, they would be entitled to claim compensation, as they are Class I heirs of the deceased under Section 8 of the Hindu Succession Act, 1956, in preference to the father of the deceased who is a class II heir. 5. The decision in Rajinder Pal Sharma v. Jaiswant Singh [1999 ACJ 1542] is to the effect that the father-in-law and mother-in-law of the deceased daughter-in-law are not dependents of the deceased. They are also not legal representatives of the daughter-in-law, it was further held. True that the term 'legal representative' should not be narrowed down to mean only the legal heirs. At the same time, flexibility of the said expression cannot be extended to cover and include the father-in-law or mother-in-law of the deceased concerned, especially when the deceased is MACA1560/13 -6- survived by his/her husband/wife and children who are class-I heirs under Section 8 of the Hindu Succession Act, 1956. 6. In the case on hand, evidently, the widow and children survived the deceased. Shortly stated, for the purpose of considering the deduction to be made towards personal and living expenses of the deceased which he would have incurred had he been alive, father-in-law or mother-in-law of the deceased shall not be reckoned as surviving dependent family member. In such circumstances, we vacate the mistakenly made finding that the 4[th] appellant is entitled to get compensation and the consequent granting of compensation to her. Accordingly, we hold that the 4[th] respondent was not eligible to file an application under Section 166 of the Motor Vehicles Act and entitled to get compensation for the death of her son-in-law, who is survived by his wife and children. A perusal of paragraph 13 of the impugned judgment would reveal that the Tribunal on the misconception that the fourth appellant/fourth petitioner is the mother of the deceased reckoned the number of dependent family members as '4' and consequently MACA1560/13 -7- effected deduction of only 1/4[th] of the income of the deceased while computing compensation payable towards loss of dependency. When it is evident that it is such a misconception that virtually constrained the Tribunal to deviate from the dictum laid down in Sarala Verma and to deduct only 1/4[th] of the income of the deceased towards his personal and living expenses, it is liable to be set right. Going by the decision in Sarala Verma's case, if the number of surviving dependent family member is '2 to 3', deduction of 1/3[rd] of the income of the deceased has to be deducted. Taking into account their number, viz., '3', the deduction on that count ought to have been 1/3[rd] of the income of the deceased. Accordingly, the finding of the Tribunal in this regard is modified. 7. The other grievance of the appellant as against the impugned award is that the Tribunal failed to apply split multiplier. In elaboration of the contention, it is submitted thus:- The deceased was aged 52 years and one month, going by Ext.A17, at the time of the accident. His date of birth is 25.05.1959 and hence, the multiplier applicable with reference to his age, going by MACA1560/13 -8- the schedule given in Sarala Verma's case, is '11'. Since he was then aged 52 years and was working as Assistant Professor in Devaswom Board College, Pampa, which is an aided college, he would have to retire from service on attaining the age of '56' years, had he been alive. Hence, the Tribunal ought to have split the multiplier as '4+7' and ought to have assessed the compensation reckoning the net salary of the deceased only for a period of four years, that is, the left over period to attain the age of superannuation. For the purpose of calculating compensation under that head, for post retiral period, the multiplier ought to have been adopted as '7' and the multiplicand ought to have fixed notionally. 8. The learned counsel further contended that the Tribunal had also erroneously fixed the monthly income for the aforesaid purpose as certified under Ext.A5 certificate. Going by Ext.A5 certificate, his monthly salary was Rs.83,381/-. It is submitted by the learned Senior counsel that by no stretch of imagination, it can be presumed that he would have earned the MACA1560/13 -9- same amount of income after his retirement. The Tribunal went wrong in taking the same monthly income for the purpose of calculating dependency compensation for the post retiral periods as well. It is submitted that for that purpose the monthly income ought to have been fixed, notionally. This submission was strongly resisted by the learned counsel appearing for the respondents/petitioners. It is submitted that the deceased was working as Assistant Professor in Mathematics. The learned counsel further submitted that the evidence of PW1, who is the Principal of the College in which the deceased was working, would reveal that even after retirement, there was considerable scope for the deceased to engage himself in the field of teaching. The learned counsel drew our attention to paragraph 9 of the impugned award, wherein those aspects were dealt with in detail. In such circumstances, it is contented that the Tribunal went wrong in taking the monthly income of the deceased at the same rate, which he was drawing while he was working in Devaswom Board College, even for the purpose of calculating compensation towards loss of MACA1560/13 -10- dependency throughout the entire period. In short, the contention of the learned counsel for the respondents/appellants is that in the light of the evidence in this case, there is absolutely no justification for splitting the multiplier and also to effect any deduction in the amount of monthly income, even for calculating dependency compensation for the post retiral period. We will consider the sustainability of the aforesaid contention raised by the learned counsel for the appellant bearing in mind the contentions raised by the learned counsel for the respondents. In the contextual situation, it is only apposite to refer to a decision of the Apex Court in Puttamma v. Narayana Reddy [2014(1) KLT 738 (SC)]. The Apex Court held therein that in the absence of any specific reason and evidence on record, the Tribunal or Court should not apply a split multiplier in routine course and should apply multiplier in terms of the decision of the Apex Court in Sarala Verma's case. A Division Bench of this Court in Kumaran v. Roy Mathew [2017 (1) KLT 668], held thus :- “When there is a certainty with respect to future earnings of the deceased, if he/she would have been MACA1560/13 -11- alive, the Tribunal shall not shut its eyes with respect to such certainties. Therefore, when there is clear evidence with respect to the date or year of retirement of the deceased on attaining superannuation, it cannot be contended that the Tribunal should adopt the same rate of earning also for the period of post retirement. The considerable reduction in the income, which would definitely fall in the life of the deceased after attaining superannuation if he/she would have been alive, is a factor which may be taken note of by the Tribunal. Such specific reason for adopting a different multiplicand for different periods, specifically split up from the entire period of multiplier, is based on reasons available in the evidence on record. Application of split multiplier in such cases with different rates of multiplicand is not illegal or erroneous, nor it run against the dictum contained in the decisions of the Hon'ble Supreme Court cited above.” Evidently, the Division Bench was referring to the decision of the Apex Court in Puttamma **’** s case. 9. As noticed hereinbefore, in this case, in the light of the provisions, it was certain that the deceased, who was an Assistant Professor in an aided college, was to retire from service at the age of 56 on attaining the age of superannuation, had he been alive. In such circumstances, taking into account the decisions supra, we have no hesitation to hold that the Tribunal ought to have MACA1560/13 -12- applied split multiplier, and that it had committed an error in taking the same rate of earning even for the purpose of calculating dependency compensation for the post retial period. We have already found that with reference to the age of Sri.Venugopalan Nair at the time of his accidental death, the multiplier adopted is '11', and since he had left only four years to retire from service, it should have been split up into 4+7. Based on the salary certified under Ext.A5, the Tribunal ought to have assessed compensation for loss of dependency only for a period of four years and the dependency compensation ought to have been assessed during the post retiral period after fixing a notional income. 10. In that view of the matter, the next question to be considered is 'what should have been the appropriate monthly income' that could be fixed for the aforesaid purpose. Certainly, in that regard, the evidence of PW1 can be looked into. It would reveal that the deceased was an Assistant Professor in Mathematics in Devasom Board College, Pampa. Certainly, in such circumstances, even after his retirement, the deceased would not have to sit idle MACA1560/13 -13- and he could have very well continued to impart instructions, privately or in other tutorial institutions or coaching centres, to earn more. In such circumstances, the notional income has to be taken into account considering the said aspects. Even after his retirement, definitely, there would have had opportunity to get engaged gainfully or to earn independently. In such circumstances, the normal rate of notional income cannot be fixed for this purpose in relation to the deceased, the victim in this case. Hence, we are inclined to fix the monthly income for that purpose as Rs.40,000/-. 11. In the light of the discussions as above, compensation for loss of dependency has to be re-assessed. Certainly, for that purpose, deduction towards the personal and living expenses of the deceased has to be taken as 1/3[rd] of his income. Rs.40,000/- has to be taken as the monthly income and '7' has to be taken as the multiplier for calculating dependency compensation for the post retiral period. Compensation for loss of dependency for a period of four years can be assessed following the same formula by replacing the multiplier as '4', instead of '11'. On MACA1560/13 -14- such assessment, for the pre-retiral period, the respondents/petitioners are entitled to get an amount Rs.23,65,728/-(887148x4x2/3). Towards loss of dependency for the post retiral period, they will be entitled to get an amount of Rs.22,40,000/- (40000x12x7x2/3). 12. Learned counsel for the respondents/petitioners submitted that while considering the question of exorbitancy of the quantum of compensation despite the fact that the respondents have failed to take up a cross objection, it is only just and proper for the Court to take into account the question as to whether the respondents were inadequately compensated under any other heads, especially in deviation of the dictum laid down by the Apex Court on such aspects. On going through the schedule of compensation given in the impugned award, we find substance in the said contention. The accident in question occurred on 20.06.2011. In the decision in Rajesh v. Rajbir Singh [2013(3) KLT 89 (SC)], the Apex Court held that in an application filed under Section 166 of the Motor Vehicles Act for compensation for death, MACA1560/13 -15- the surviving spouse is entitled to get a minimum of Rs.1 lakh towards loss of consortium. The accident involved in the said case had occurred in the year 2007. In this case, the wife of the deceased was aged only 47 years at the time of the accidental death of her husband and the Tribunal has granted only an amount of Rs.25,000/-. In the light of the decision in Rajesh's case (supra), the Tribunal ought to have granted Rs.1 lakh towards loss of consortium. So also, in the light of the said decision, in the absence of evidence of higher expenses, a minimum of Rs.25,000/- ought to have been granted towards funeral expenses. The Tribunal had granted only an amount of Rs.7,000/-. In other words, Rs.18,000/- more ought to have been granted by the Tribunal under that head. In the light of the above finding, though the fourth respondent/fourth petitioner was not entitled to get any share in the compensation awarded towards loss of love and affection, it cannot be said that the Tribunal has granted adequate compensation to respondent Nos.2 and 3, who are the children of the deceased. At the time of the accidental death of their father, they were aged MACA1560/13 -16- respectively 21 years and 19 years. The third respondent/third petitioner is the daughter of the deceased. Taking into account the aforesaid facts, we are of the view that imbibing the spirit of the decision in Rajesh's case, an amount of Rs.80,000/- could have been granted to them as compensation for loss of love and affection, resulting an addition of Rs.10,000/-. 13. Though in view of the provisions under Section 168 of the Motor Vehicles Act, a Tribunal or Court is bound to grant just compensation, it should keep in mind the word of caution sounded by the Honourable Apex Court that none can be permitted to create fortune or misfortune. In other words, the maxim 'restitutio in integrum has to be borne in mind while calculating compensation. In the decision in State of Haryana v. Jasbir Kaur [2003(7) SCC 484], the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act is required to make an award determining the “ ” amount of compensation which is to be in the real sense damages , which in turn appears to it to be 'just and reasonable'. When it is found that exorbitant compensation was granted, certainly the MACA1560/13 -17- appellate court is to step in and scale down the compensation to make it a just compensation in tune with the provisions under Section 168 of the Motor Vehicles Act. But, at the same time, while doing so, if any legally due amount was deprived of by the impugned award, that fact also could be taken into account while scaling down the compensation. In such circumstances, we are of the view that despite the fact that the respondents have failed to take up a cross objection in this appeal, it is only proper for us to take into account the compensation payable in tune with the dictum laid down by the Apex Court in Rajesh's case as mentioned above. 14. In short, taking into account all such factors, the respondents/petitioners are entitled to get only an amount of Rs.48,39,728/- as compensation. This is due to our interference with certain factors specifically mentioned hereinbefore relevant for the purpose of calculating compensation towards loss of dependency. We have also taken into account the just compensation payable under the heads funeral expenses, loss of love and affection and loss of consortium and retained the MACA1560/13 -18- assessment made by the Tribunal under other heads. On such calculation, the respondents/petitioners are entitled to get an amount of Rs.48,39,728/-, which is rounded off to Rs.48,40,000/-. In said circumstances, the impugned award is modified and the quantum of compensation is scaled down to Rs.48,40,000/-, instead of Rs.74,50,971/-. We maintain the same rate of interest granted by the Tribunal. Evidently, pursuant to an order passed by this Court while admitting this matter on 7.8.2013, the appellant had deposited 50% of the amount awarded. The appellant shall deposit the balance amount payable to satisfy the modified award along with interest within a period of two months from the date of receipt of a copy of this judgment. Needless to say that the Tribunal has to recalculate the proportionate costs based on this judgment. No cost is awarded in this proceedings. Sd/- (C.T.RAVIKUMAR, JUDGE) Sd/- (ANIL K.NARENDRAN, JUDGE) jg-9/8