K.P. Lathika & Others vs Vinod C. & Others; The New India Assurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] 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 22[ND] 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** **4** 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 5** ## **COMMON JUDGMENT** ## **Dated this the 22[nd] 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 6** 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 7** 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 8** 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 9** 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 10** 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 11** 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 the deceased was on the on salary, when verge **MACA NO.1785 of 2011 & Co.No.43 of 2013 12** 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 13** 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 14** 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 15** ## **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 16** 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 17** 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 18** **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 19** 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<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court<br>(in rupees)| |---|---|---|---| |1|Transportation<br>expenses|3000|3000| |2|Funeral expenses|5000|16500| |3|Loss of estate|0|16500| |4|Pain and<br>sufferings|10000|0| |5|Loss of love and<br>affection|25000|0| |6|Loss of<br>consortium|10000|176000| |7|Loss of<br>dependency|693000|3175276| ||Total|**7,46,000**|**33,87,276**| **MACA NO.1785 of 2011 & Co.No.43 of 2013 20** 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 **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the cross objection is dismissed and the appeal is allowed, by enhancing the compensation by an amount of **Rs.26,41,276/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, and proportionate cost. The third respondent is **MACA NO.1785 of 2011 & Co.No.43 of 2013 21** ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants, after deducting their liability, towards courts fee, in the ratio of 40:20:20:20, and in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/22/03/2022