Jyothis S. and others v. Somasekharan Pillai and Sooraj Somasekharan Pillai and The Divisional Officer, New India Assurance Co. Ltd.

**'C.R.'** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 MACA NO. 1326 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 25.01.2018 IN OPMV 610/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR** ## **APPELLANTS/PETITIONERS:** 1 JYOTHIS S., D/O.A.V.SADHU, ATHIKATHARA VEEDU, URUKUNNU P.O.,THENMALA VILLAGE, KOLLAM DISTRICT. 2 THEJUS MARY S., D/O.A.V.SADHU ATHIKATHARA VEEDU, URUKUNNU P.O.,THENMALA VILLAGE, KOLLAM DISTRICT. 3 MARIYAMMA CHACKO, KAVUNGAL THENGAZHIKATHU, ST.JUDE NAGAR,ALUMMOODU P.O. MUKHATHALA VILLAGE, KOLLAM TALUK. BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENTS/RESPONDENTS:** 1 SOMASEKHARAN PILLAI, S/O.BHASKARAN PILLAI, SANTHALAYAM, KARUVATTA, MOONNALAM P.O.,ADOOR, PIN-691 523. 2 SOORAJ SOMASEKHARAN PILLAI, S/O.SOMASEKHARAN PILLAI, SANTHALAYAM, KARUVATTA, MOONNALAM P.O., ADOOR, PIN-691 523. 3 THE DIVISIONAL OFFICER THE NEW INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, BEACH ROAD, KOLLAM, PIN-691 001. BY ADV SRI.P.BHARATHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2022, ALONG WITH MACA.1431/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 1326 & 1431/2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 MACA NO. 1431 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 25.01.2018 IN OPMV 591/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR** ## **APPELLANTS/PETITIONERS:** 1 JYOTHIS. S D/O.A.V.SADHU, ATHIKATHARA VEEDU, URUKUNNU P.O., THENMALA VILLAGE, KOLLAM DISTRICT. 2 THEJUS MARY S. D/O.A.V.SADHU, ATHIKATHARA VEEDU, URUKUNNU P.O., THENMALA VILLAGE, KOLLAM DISTRICT. BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENTS/RESPONDENTS:** 1 SOMASEKHARAN PILLAI S/O.BHASKARAN PILLAI, SANTHALAYAM, KARUVATTA, MOONNALAM P.O., ADOOR, PIN-691523. 2 SOORAJ SOMASEKHARAN PILLAI S/O.SOMASEKHARAN PILLAI, SANTHALAYAM, KARUVATTA, MOONNALAM P.O., ADOOR, PIN-691523. 3 THE DIVISIONAL OFFICER THE NEW INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, BEACH ROAD, KOLLAM, PIN-691001. BY ADV SMT.P.LISSY JOSE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2022, ALONG WITH MACA.1326/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 1326 & 1431/2018 3 **==> picture [52 x 12] intentionally omitted <==** C.JAYACHANDRAN, J. -----------------------------------MACA Nos.1326 and 1431 of 2018 ------------------------------------Dated this the 22[nd] day of July, 2022 ## COMMON JUDGMENT 1. Both the husband and wife lost their lives in a fatal accident. The legal heirs of the wife preferred O.P(M.V) No.610/2014, from which M.A.C.A No.1326/2018 arose. The legal heirs of the husband filed O.P(M.V) No.591/2014, from which M.A.C.A No.1431/2018 arose. The undisputed facts are as follows: The husband and the wife were employed as Headmaster and Teacher, respectively, in a Higher Secondary School. Their salary is covered by salary certificates, produced as Ext.A14 in the case of the husband and Exts.A19 and A20 in the case of the wife. The essential ground/grievance, which was raised before this Court by the appellants, is with respect to application of split multiplier by the Tribunal. The husband and wife were aged 53 years and 48 years respectively, as on the date of the accident. Insofar as the husband is concerned, his actual salary was reckoned for a period of three more years from the date of death, whereafter Rs.6,000/- per month alone MACA 1326 & 1431/2018 4 is reckoned for a period of nine years, that too reckoning the multiplier as 12, which also is wrong. According to the learned counsel for the appellants, the correct multiplier is 11. In the case of wife, the actual salary was reckoned for a period of seven more years, whereafter Rs.5,000/- per month alone was reckoned for the remaining period of 9 years, reckoning the multiplier as 16, as against the actual multiplier of 13. In the light of the decisions of the Hon'ble Supreme Court in Jayasree N. and Others v. Cholamandalam MS General Insurance Company [AIR 2021 SC 5218] and Ushakumari & Ors. v. Reliance General Insurance Co. Ltd. [Civil Appeal no.3649/2022], applying split multiplier, as done by the learned Tribunal, is contrary to the law laid down. The claimants are entitled to reckon the salary for the periods specified by the relevant multiplier, at the rate indicated in the certificate, deducted by the actual income tax paid. 2. Another contention raised by the learned counsel for the appellants is that in the case of wife, the appellants/petitioners, 3 in numbers, are the legal heirs. They are the minor daughters and the mother of MACA 1326 & 1431/2018 5 the deceased/wife. In the case of husband, the legal heirs are the two minor daughters. The appellants in these cases are entitled to compensation under the head 'loss of consortium' @ Rs.40,000/- each, going by the dictum laid down in National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. 3. Per contra, learned counsel appearing for the third respondent/Insurance Company contended that although the multiplier taken by the Tribunal is wrong, the salary to be reckoned for the post retirement period could only be the notional income; and not the salary which was being drawn by the deceased up to the age of retirement. Another aspect pointed out is that once the claim for consortium is recognised, the amount granted under the head 'love and affection' has to be obliterated. 4. Having heard the learned counsel appearing on both sides, this Court finds merit in the submissions made by the learned counsel for the appellants. The precise issue, which fell for consideration in Jayasree N. (supra) and Ushakumari (supra), was with respect to the application of the split multiplier. MACA 1326 & 1431/2018 6 After scanning through the precedents, the Hon'ble Supreme Court in Jayasree N. (supra) held, in paragraph no.28, that the court has to consider the actual income of the deceased, which coupled with the future prospects, is to be reckoned as the income. The Hon'ble Supreme Court also held that the High Court was not justified in applying the split multiplier in that case. The same is the dictum laid down in Ushakumari (supra) , wherein the Hon'ble Supreme Court frowned upon the High Court in dividing the multiplier of 13 into 2 parts, i.e. up to the age of retirement and after the retirement, for the life time. The Hon'ble Supreme Court restored the judgment of the Tribunal in granting compensation on the basis of the income applicable by a single multiplier, namely 13, in that case. In such circumstances, this Court finds that the split multiplier applied by the learned Tribunal in the impugned award cannot be sustained. As has been rightly conceded by the learned counsel for the appellants, the correct multiplier applicable in the case of husband is '11', he being 53 years old at the time of accident and that of the wife is '13', she being 48 years old at the time of the accident. The income as reflected in Exts.A14 and A19 MACA 1326 & 1431/2018 7 certificates with respect to the husband and wife, respectively, has to be appropriately deducted by the amount of income tax paid and calculations made accordingly. 5. This Court also finds force in the submission made by the learned counsel for the appellants, insofar as the consortium is concerned. In the case of the wife (M.A.C.A No.1326/2018), three legal heirs are entitled to consortium @ Rs.40,000/- each. In the case of husband (M.A.C.A No.1431/2018), two legal heirs are entitled to Rs.40,000/- each towards consortium. The compensation amount has to be reworked accordingly, also deducting 1/3[rd] towards the personal expenses. Needless to say that the amount awarded under the head 'loss of love and affection' has to be obliterated. 6. The next aspect canvassed by the learned counsel for the appellants is the pay revision effected, applicable to both husband and wife with effect from 1.7.2014, although the order was issued in the year 2016. Learned counsel for the appellants submitted that the death took place on 7.7.2014 and therefore, MACA 1326 & 1431/2018 8 as on the date of death, the salary, which ought to have been disbursed to the claimants in both the cases should be in the revised scale, wherefore the same is liable to be reckoned. The learned counsel invited the attention of this Court to the observations made in paragraph nos.11 and 40 of the Constitution Bench decision in Pranay Sethi (supra). In paragraph no.11, the concept of just compensation is seen emphasised. In paragraph no.40 relying on Reshma Kumari & Ors v. Madan Mohan & Anr [(2013) 9 SCC 65] , the Hon'ble Supreme Court took stock of the direction in Reshma Kumari (supra) that the multiplicand is normally based on the net annual value of the dependency on the date of deceased's death. 7. In paragraph no.40 in Pranay Sethi (supra), the Hon'ble Supreme Court took note of the conclusions summed up in Reshma Kumari (supra). In short, the learned counsel would submit that the judgment in Pranay Sethi (supra) would amply support the proposition, which is being canvassed to the effect that the actual salary, which was due as on the date of death, should be reckoned for the purpose of arriving at dependency compensation. MACA 1326 & 1431/2018 9 8. Per contra, this proposition was seriously opposed by the counsel appearing for the Insurance Company. It was canvassed that the benefit of a pay revision, which was effected two years after the date of death, though with retrospective effect, should not be reckoned. According to the learned counsel, such benefits would coalesce with the concept of future prospects, which has been directed to be granted and quantified by the Honourable Supreme Court in Pranay Sethi (supra). In support of the above, learned counsel relied upon the judgment of a Single Bench of this Court in Shyno M.Aykara v. Sumol Roy and Others [2020 (4) KHC 358] . 9. Having heard the learned counsel appearing on both sides, this Court leans in favour of the arguments raised by the learned counsel for the 3[rd] respondent/Insurance Company. As held in Shyno M.Aykara (supra), the precise question has been considered by a learned Single Judge of this Court in paragraph no.11 of the judgment. The question posed is as follows: MACA 1326 & 1431/2018 10 “11. Then the question would be whether a subsequent pay revision effected retrospectively with effect from a date anterior to the death of the deceased should be taken into account or not, and also whether any enhancement ought to have been made towards future prospects, while calculating compensation. …...” 10. Thereafter, the learned Single Judge placed reliance upon a bench decision of this Court in Valsamma v. Baiju [2018) (1) KLJ 393] , wherein the proposition that adding future prospects, being the correct method, has to be taken stock of. The judgment of the Hon'ble Supreme Court in Oriental Insurance Company v. Jashuben and Others [(2008) 4 SCC 162] is also relied upon, which judgment was cited by the respondents herein as well, where a claim for reckoning the pay revision benefits is seen repelled. Another judgment taken stock of by the learned Single Judge is the judgment in Sarala Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] , which held that the courts will usually take only the actual income at the time of death, and departure therefrom should be made only in rare and exceptional cases MACA 1326 & 1431/2018 11 involving special circumstances. On the strength of the above discussion, the learned Single Judge has resorted to the methodology of adding future prospects, than reckoning the benefit of the pay revision. 11. In answer to the above proposition, learned counsel for the appellants submitted that the judgment of the Hon'ble Supreme Court in Jashuben (supra) is quite distinguishable on facts, by pointing out that in that case, the accident and death took place in the year 1994, whereas pay revision was effected w.e.f. 1997 onwards. However, a perusal of the observations made by the Hon'ble Supreme Court in Jashuben (supra) would indicate that the claim has been refused not only on the basis of the date of effect from which the pay revision is to be applied, but on larger/general principles, which is contained in paragraph nos.13 and 14 of the judgment, which are extracted herein below: “13. It is not a case where, as on the date of death, the salary of the deceased was revised with retrospective effect from 1994. Salary would be revised or not was not known at that part of time. Only MACA 1326 & 1431/2018 12 because such salary was revised at a later point of time, the same by itself would not have been a factor which could have been taken into consideration for determining the amount of compensation. The Tribunal, therefore, committed a serious illegality in taking into consideration the latter aspect. 14. The amount of compensation indisputably should be determined having regard to the pecuniary loss caused to the dependents by reason of the death of the victim. It was necessary to consider the earnings of the deceased at the time of the accident. Of course, further prospect is not out of bound for such consideration. But the same should be founded on some legal principle.” 12. Having gone through the well considered judgment of the learned Single Judge, this Court finds no reason to take any deviation therefrom. This Court also finds that if a benefit like a pay revision, which is effected two years or more from the date of death, then similar benefits, which are more or less certain to occur, like the retirement benefits etc., may also have to be reckoned. It is in substitution of the actual figures that future prospects have been reckoned with specified percentage of quantum, as held MACA 1326 & 1431/2018 13 by the Constitution Bench in Pranay Sethi (supra). Therefore, the said contention of the learned counsel for the appellants is repelled. 13. Yet another contention raised by the learned counsel for the appellants is to the effect that the conventional heads require enhancement at the rate of 10% by efflux of every three years from the year of judgment in Pranay Sethi (supra), namely 2017. Although this contention was opposed seriously by the learned counsel for the respondent/Insurance Company in the respective cases, learned counsel for the appellants pressed into service a judgment of the Hon'ble Supreme Court in Jayasree N. (supra) to point out that in respect of an accident which took place in the year 2011, the Hon'ble Supreme Court, after specifically quoting the enhancement provided in Pranay Sethi (supra), gave the benefit of 10% enhancement taking note of the fact that Pranay Sethi (supra) was rendered in the year 2017. The judgment in Jayasree N. (supra) is dated 25.10.2021. The argument raised by the learned counsel for the respondent/Insurance Company is to the effect that the MACA 1326 & 1431/2018 14 amount under the conventional heads up to the year 2017 have been quantified by the Hon'ble Surpeme Court in Pranay Sethi (supra), after taking into account the difference in the interest rate and similar attendant circumstances and that enhancement is provided in respect of accident, which takes place after 2017 is prima facie impressive. However, the judgment of the Hon'ble Supreme Court in Jayasree N. (supra) is the answer to the said contention of the respondent, wherein the enhancement is seen given, de hors the fact that the accident took place in 2011, which is much prior to the year in which the judgment in Pranay Sethi (supra) was rendered. In the circumstances, this Court is bound to follow the same. 14. Accordingly, 10% increase is liable to be given to the conventional heads, namely loss of estate, loss of consortium and funeral expenses. 15. One final issue, which is to be sorted out, is with respect to the applicability of income tax, if any, to the future prospects reckoned for the purpose of compensation. In the judgment impugned, the same is seen reckoned and income tax is seen deducted after MACA 1326 & 1431/2018 15 adding the future prospects component as well to the annual income. This Court is afraid whether the course adopted by the Tribunal is in accord with law. The first thing to be noted is that 'future prospects' is not an income perceivable or receivable by the deceased. Instead, it is only a measure of compensation, whereby the possibility of increase in the income of the deceased, had he been alive, is also reckoned for the purpose of compensation. In other words, such component by way of future prospects forms part and parcel of the compensation being granted. The question of reckoning income tax is only with respect to the income of the deceased at the time of accident, whereby, the court/Tribunal arrives at the income at the hands of the deceased, as reduced by the tax paid. It is to this income that the deduction on account of personal expenses and multiplier being applied. This Court is therefore of the opinion that the compensation amount calculated under the head future prospects is not liable to be subjected to any income tax for the purpose of arriving at just compensation under the Motor Vehicles Act. The income tax reckoned for the future prospects as well in the award impugned is hereby interfered with. MACA 1326 & 1431/2018 16 16. In the circumstances, these appeals are allowed to the extent as indicated above and the compensation awarded is re-worked as follows: ## MACA No.1326/2018 (OP(MV) No.610/2014) |Sl.<br>No.|Head of claim|Amount<br>awarded<br>by<br>the Tribunal<br>(Rs)|Total amount<br>after<br>enhancement in<br>appeal (Rs.)| |---|---|---|---| |1|Transport to hospital|7500|7500| |2|Cost of medicine|3000|3000| |3|Funeral Expenses|15000|16500| |4|Compensation for loss<br>of consortium|Nil|132000<br>(44000x3)| |5|Compensation for loss<br>of Estate|15000|16500| |6|Compensation<br>for<br>pecuniary loss caused<br>due to the death of the<br>deceased and future<br>prospects|2847128|* 4618965| ||Total|2887628|4794465| |Amount enhanced =Rs.1,906,837/-(4794465-2887628)|||| *[416364(annual income)-6397(income tax)x(130/100)x(2/3)x13] ## MACA No.1431/2018 (OPMV No.591/2014) |Sl.<br>No.|Head of claim|Amount awarded<br>by<br>the<br>Tribunal(Rs)|Total amount after<br>enhancement<br>in<br>appeal (Rs.)| |---|---|---|---| |1|Transport to hospital|7500|7500| |2|Cost of medicine|3000|3000| |3|Funeral Expenses|15000|16500| |4|Compensation for loss<br>of consortium|Nil|88000<br>(44000x2)| MACA 1326 & 1431/2018 17 |5|Compensation for loss<br>of Estate|15000|16500| |---|---|---|---| |6|Compensation<br>for<br>pecuniary loss caused<br>due to the death of the<br>deceased and future<br>prospects (Dependency)|1970205|* 5640089| ||Total|2010705|5771589| |Amount enhanced = Rs.37,60,884/- (5771589-2010705)|||| * [685200(annual income)-16415(tax)x(115/100)x(2/3)x11] 17. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has 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. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run MACA 1326 & 1431/2018 18 at the rate ordered by the Tribunal from the date of petition. Sd/C.JAYACHANDRAN JUDGE jg