Jayasree and others v. Johnson Vilakkuvettathathu Charuvila Veedu; The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944** ## **MACA NO. 811 OF 2018** ## **OPMV 521/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR APPELLANT/S:** 1 JAYASREE AGED 51 YEARS, W/O.DAYANANDAN NAIR, KARTHIKA, VENMANNOOR, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE. 2 DIVYA RANI AGED 31 YEARS, D/O.JAYASREE, KARTHIKA, VENMANNOOR, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE. 3 DHANYA RANI,AGED 29 YEARS, D/O.JAYASREE, KARTHIKA, VENMANNOOR, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE. BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENT/S:** 1 JOHNSON VILAKKUVETTATHU CHARUVILA VEEDU, UMMANNOOR P.O., KOTTARAKKARA, PIN-691506. 2 JOHNSON GEEVARGHESE VILAKKUVETTATHU CHARUVILA VEEDU, UMMANNOOR P.O., KOTTARAKKARA, PIN-691506. 3 THE ORIENTAL INSURANCE CO. LTD. THE DIVISIONAL OFFICE, KOLLAM, PIN-691001. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 811 OF 2018** -2- ## **JUDGMENT** (Dated this the 20[th] day of January 2023) Appellants herein are petitioners in O.P.(MV) No. 521 of 2013 on the files of Motor Accidents Claims Tribunal, Punalur. The appellants are the wife and children of deceased Dayanandan Nair who died in road traffic accident on 05.09.2013. 2. On 05.09.2013 at about 5.30. p.m the deceased Dayandan Nair was riding a motor cycle bearing Reg. No.KL-24E-9535 from North to South direction through the M.C road. When Dayandan Nair reached in front of the petrol pump at Kunnamkara, a car bearing Reg. No. KL 24D-5273 driven by the 2[nd] respondent from the opposite direction in rash and negligent so as to endanger human life, hit on the motor cycle, as a result of which Dayandan Nair was thrown to the road, sustained severe injuries and succumbed to the injuries. Dayandan Nair was 54 years old working as Attender in Taluk Co-operative Society, Kottarakara, earning Rs. 37,327/- per month. Appellants ## **MACA NO. 811 OF 2018** -3- claimed Rs. 60 lakhs towards damages and compensation from the owner, driver and insurer of the offending Car No.KL-24D/5273. 3. Respondent Nos.1 and 2 remained exparte. Third respondent filed a written statement contending that it is true that the car involved in the accident was insured with the respondent against third party risk and the policy was in force at the time of accident. The compensation claimed is exorbitant without any basis. 4. Relying on documentary evidence of Ext.Nos.A1 to A10 and oral evidence of PW1, the Tribunal awarded Rs.16,29,965/- with 6.5% interest per annum from the date of petition till date of payment. 5. The counsel for the appellants submits that the Tribunal had committed an error in using the split multiplier method for arriving the compensation for loss of dependency. 6. The counsel for the respondent Insurance **MACA NO. 811 OF 2018** Company submits that since the deceased was aged 54 years at the time of accident and working as Attender in Taluk Co-Operative Society, the Tribunal rightly applied split multiplier, because he was due to retire at the age of 58 and multiplier taken as 4 and after retirement age his income taken as Rs.5,000/- and multiplier is taken as 9. So taking into consideration of all the aspects, the Tribunal has calculated the loss of dependency on the principles of split multiplier. Hence, no interference is warranted. ## 7. Heard. 8. The deceased Dayanandan Nair was aged 54 years at the time of accident earning a monthly salary of Rs.37,327/- as an Attender in Taluk Co-Operative Society, Kottarakkara. Ext.A8 is Employment certificate issued by the Kottarakara Taluk Co-Operative Society. It clearly shows that he was earning a monthly income of Rs.37,327/-. The Tribunal fixed the monthly income as rightly shown in Ext. A8, but awarded compensation **MACA NO. 811 OF 2018** towards loss of dependency by applying split multiplier. Thus the compensation arrived was Rs.15,54,464/- towards the loss of dependency. This figure was arrived at taking the split multiplier method by considering the monthly income at the rate of Rs.37,327/- for four years and for the remaining 9 years at the rate of Rs.5000/- per month. 9. The main contention raised by the counsel for the appellants is that the Tribunal was not justified in taking the split multiplier in view of the decision of the Apex Court in **Puttamma and others v. K. L Narayana Reddy and another [(2014) 4 SCC (Civ.) 384],** wherein the Apex court has categorically in paragraph 34 held as follows: “34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma (supra) as affirmed in the case of Reshma Kumari (supra).” ## **MACA NO. 811 OF 2018** -6- The Apex court had, in another occasion to consider the similar issue in **Jayasree N. & others v. Cholamandalam MS General Insurance Company Ltd (2021 (6) KHC 163)** wherein one of the questions raised by the Apex Court was whether the High court was justified in applying split multiplier? The Apex court, after referring to a number of decisions right, from **Sarla Verma(Smt.) & another v. Delhi Transport Corporation & another [(2009) 6 SCC 121]** held as follows: “22. The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/- (Rupees eighty-three thousand eight hundred thirty-one only). The evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a first-class holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was ## **MACA NO. 811 OF 2018** -7- appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics. Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement. 23. In Sarla Verma, this Court has held that while calculating the compensation, the courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the ## **MACA NO. 811 OF 2018** -8- addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted. 24. In Reshma Kumari & Ors. vs. Madan Mohan & Anr.", a three-Judge Bench of this Court has approved the judgment in Sarla Verma. 25. In Pranay Sethi, this Court has not only approved the aforesaid observations made in Sarla Verma but also held as under: 59.3. 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 should be 15%. Actual salary should be read as actual salary less tax. ## **MACA NO. 811 OF 2018** -9- 59.4. In case the deceased was selfemployed 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." 26. In K.R. Madhusudhan and Ors. vs. Administrative Officer and Anr., this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under: 8. In Sarla Verma judgment the Court has held that there should be no addition to income for future prospects where the age **MACA NO. 811 OF 2018** -10- of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional circumstances. cases involving special circumstances. 9. We are of the opinion that the rule of thumb evolved in Sarla Verma is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same." 27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr. this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus: "32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier ## **MACA NO. 811 OF 2018** -11- method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier. 33. In K.R. Madhusudhan v. Administrative Officer this Court held as follows: (SCC p. 692, paras 14-15) "14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal. reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefore. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the of the age deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second ## **MACA NO. 811 OF 2018** -12- Schedule to the Motor Vehicles Act, and the Tribunal has not committed error the said any by accepting multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6. 15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method. 28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi, the **MACA NO. 811 OF 2018** -13- Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case.” Thus going by the decisions of the Apex Court, the Tribunal ought not have taken the split multiplier method in the absence of any specific reason and evidence on record, for arriving at the compensation of loss of dependency. Hence, the same has to be modified taking into consideration the dictum laid down in **Sarla Verma** . **(supra)** 10. The Counsel submits that since the deceased was aged 54 years at the time of accident, 15% has to be added towards future prospects to the income. I fully agree with submissions made by the counsel for the appellant. 11. As per Ext.A.8, the deceased was earning a monthly income of Rs.37,327/-. With this figure, applying **MACA NO. 811 OF 2018** -14- Income Tax, the loss of dependency can be calculated as below:- |below:-||| |---|---|---| |Annual Income|Rs.37,327 x 12|Rs.4,47,924/-| |Applying Income tax<br>slab<br>(for<br>the<br>assessment year 2013-<br>14)|For Rs.2,00,000 &<br>above : 10% of the<br>amount<br>exceeding<br>Rs.2,00,000/-|Rs.4,47,924 -2,00,000<br>= Rs.2,47,924x10/100<br>= Rs.24,792.4| |Actual salary (after<br>deduction of income<br>tax slab)|Rs.4,47,924– 24,792.4|Rs.4,23,131.6| |Calculation of loss of<br>dependency|Future prospects for<br>age group 50-60<br>4,23,131.6 x 15/100|Rs.63,469.74| ||Revised<br>annual<br>income for calculation<br>of loss of dependency|4,23,131.6+63,469.74<br>= Rs.4,86,601.34| ||Multiplier applicable|11| ||Deduction<br>towards<br>personal expenses|1/3| ||4,86,601.34x11x2/3|35,68,409.83(rounded<br>off to)**Rs.35,68,410/-**| ## **MACA NO. 811 OF 2018** -15- 12. The counsel for the appellants contends that even though appellant Nos.2 and 3 are aged 27 and 25 respectively, at the time of preferring the claim, they are also entitled to compensation under the head of loss of consortium. 13. The counsel for the respondent contends that in view of dictum reported in **Magma General Insurance Co.Ltd v. Nanu Ram Alias Chuhru And Others** [ (2018) 18 SCC 130], the consortium can be granted only to a child, therefore the appellant Nos.2 and 3 are not entitled for loss consortium. 14. A Constitutional Bench of the Apex court in the decision reported in **National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** held that in legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace **MACA NO. 811 OF 2018** -16- and affection of the deceased, which is a loss to his family. A Single bench of this court in **United India Insurance v. Shalumol** [ 2021(5) KHC 28] relying on the decision of the apex court in **National Insurance Company Limited v. Birender and Others** [(2020) 11 SCC 356] held that even though the dependency is a relevant criterion to claim compensation for loss of dependency, it does not mean that financial dependency is the 'ark of the covenant'. Dependency includes gratuitous service dependency, physical dependency, emotional dependency, psychological dependency, and so on and so forth, which can never be equated in terms of money. Therefore, the appellant Nos.2 and 3 are also entitled for compensation under the head of Loss of consortium. 15. As per the decision reported in **Pranay Sethi** (Supra) Towards 'loss of consortium', the appellants are entitled for Rs.40,000/- plus 10% increase in every three **-.** years, which would come to Rs.44,000x3= Rs.1,32,000/ 16. Towards pain and suffering, no amount was **MACA NO. 811 OF 2018** -17- awarded by the Tribunal. Relying on the dictum laid down in **Jyni v. Raphel P.T** [2016 (2) KHC 870], it was held that a conventional amount within a range of Rs.5,000/- to Rs.15,000/- can be awarded under the head of pain and suffering in case of death also. Thus, the appellants are entitled to an amount of Rs.15,000/- since the death was happened one day after the accident. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of claim|Amt.awarded by<br>Tribunal (Rs.)|Amt.awarded in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of dependency|15,54,464|35,68,410| |2.|Loss of consortium|40,000|1,32,000| |3.|Pain and suffering|-|15,000| ||Total|15,94,464|37,15,410| ||Amount enhanced : 37,15,410 – 15,94,464 =**Rs.21,20,946**/-||| In the result, the appeal is allowed and the appellants **MACA NO. 811 OF 2018** are entitled to an amount of Rs. **21,20,946/-** (Twenty one lakh twenty thousand nine hundred and forty six only). The Insurance Company shall pay interest for the enhanced amounts at the rate of **6.5%** from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. All other findings entered by the Tribunal stand confirmed. ## Sd/- **BASANT BALAJI, JUDGE** _dl/_