Krishnadas v. Henry Joseph & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 MACA.No. 2944 of 2008 ----------------------OPMV.1445/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: -------------KRISHNADAS, D/O.LATE ELLIKATHARA NARAYANAN, MATTATHURKUNNU, KODAKARA, R/AT.APPU CHAR, IRINJALAKUDA, THRISSUR. BY ADV. SRI.P.K.RAVISANKAR RESPONDENTS: - --------------- 1. HENRY JOSEPH, S/O.PUTHENVEETTIL INASU, PUDUKKAD, VIYYOOR, THRISSR. 2. BABU, S/O.KOTTARAKUNNIL MARKOSE, KARANCHIRA, KIZHAKKUMCHERI, PALGHAT. 3. BRANCH MANAGER, - UNITED INDIA INSURANCE CO.LTD., PERINCHERY BUILDING, BRANCH THRISSUR 4. M.D.NARAYANAN, S/O.MALIAKKAL DAMODARAN NAIR, KAVIL,. KODAKARA PO., THRISSUR. 5. SIVADAS, PATTATHIL UNNIKRISHNAN NAIR VASUPURAM, MATTATHURKUNNU, KODAKARA. 6. DEVAKY AMMA, W/O.LATE ELLIKATHARA KRISHNANKUTTY NAIR, MATTATHURKUNNU, MODAKARA, THRISSUR. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 2944 OF 2008 ============================** ## **Dated this the 2[nd] day of August 2011** ## **JUDGMENT** ## **R.Basant, J.** The claimant/son is the appellant. He along with his paternal grand-mother had staked the claim for compensation for the loss suffered by him as a result of the death of his father. His father along with his mother and two others were travelling in a car. The car met with an accident. Both his parents succumbed to the injuries suffered in the accident. He claimed a total amount of Rs.17,46,620/- as compensation for the loss suffered by him on account of the death of his father. The Tribunal by the impugned award directed payment of an amount of Rs.9,76,000/- as per the details shown below. |**_Sl.No_**<br>**_._**|**_Head under which made_**|**_Amount claimed in_**<br>**_Rs._**|**_amount awarded in_**<br>**_Rs._**| |---|---|---|---| |1|Postmortem and funeral expenses|6,000/-|5,000/-| |2|Compensation for pain and<br>sufferings|10,000/-|5,000/-| |3|compensation for loss of<br>dependency|14,00,000/-|9,66,000/-<br>(23000x12x1/2x7)| MACA 2944/2008 2 |**_Sl.No_**<br>**_._**|**_Head under which made_**|**_Amount claimed in_**<br>**_Rs._**|**_amount awarded in_**<br>**_Rs._**| |---|---|---|---| ||Total||9,76,000/-| 2. The mother of the deceased is now arrayed in this appeal as respondent No.6. The challenge is raised only on the ground that the quantum of compensation awarded is inadequate. According to the learned counsel for the appellant, the amount awarded under the head of loss of dependency is grossly inadequate. He has a further grievance that no amount has been awarded under the head of loss of love and affection. The learned counsel for the appellant, in these circumstances, prays that the compensation amount awarded may be enhanced suitably. 3. The deceased was a Selection Grade Lecturer in Christ College, Irinjalakuda. The accident occurred in August 2002. His total monthly salary(including Basic Pay, D.A. &H.R.A.) on the date of his death was Rs.23,181/-. Certificate issued by the College authorities shows that if had he continued in employment, his total monthly salary in May 2007 would have MACA 2944/2008 3 been Rs.31,759/-. Regarding his age, there is no dispute, he was aged 48 years. It is also not disputed that as on the date of his death he could have aspired to continue in service till he attained the age of 55 years. He leaves behind only his son, the appellant herein and his mother, the 6[th] respondent, a woman aged about 66 years. These are the only legal heirs/dependents as on the date of the claim petition. 4. The learned counsel for the appellant submits that the Tribunal had grossly erred in computing compensation for loss of dependency as Rs.9,66,000/-(23,000x12x1/2x7). We shall now advert to the various contentions raised by the learned counsel for the appellant. 5. The learned counsel first of all contends that Rs.23,000 reckoned as the multiplicand is incorrect. The salary of the deceased in a stable and settled employment was Rs.23,181/-. Following the dictum in **Sarla Verma v. Delhi Transport Corporation(2009)6S.C.C.121]** , for the deceased aged 48 years, 30% must have been added to the monthly income taking into account the prospect of improvement in salary. The learned counsel for the appellant then contends that one half MACA 2944/2008 4 reckoned as the personal expenses of the deceased is grossly excessive. Including the deceased, there were three persons who depended on income,i.e. the deceased, the appellant and the 6[th] respondent-mother. At any rate, deduction in excess of 1/3[rd] for personal expenses is unjustified, contends the learned counsel. 6. The learned counsel then contends that the Tribunal had erred grossly in reckoning only 7 as the multiplier, the basis of which is not clearly revealed. If the Tribunal reckons 7 on the basis of the period of continued employment in the present post prior to superannuation, the Tribunal should certainly have taken into account the great potential for post retiral employment of the deceased. His pension after such retirement should have been taken into account. To that, must have been added, the post retiral income which he, as a retired lecturer would have been able to earn. In these circumstances, 13 which is the accepted multiplier applying the dictum in **Sarla Verma (supra)** , for a person aged 45-50 years must have been fully taken, contends the counsel. MACA 2944/2008 5 7. The learned counsel for the Insurance company, on the contrary, asserts that considering the total income and the number of dependents, it is only easy to assume that the deceased would have incurred greater expenditure on his own self. The Tribunal, by no stretch of imagination, can be found fault with for not deducting any unjustified amounts for his personal expenses. Realities of life will have to be taken into account. Considering the high amount which the deceased was getting as his monthly income, it is only reasonable to assume that he would have spent atleast one half of the amount for the personal expenses if he would have continued to live, contends the learned counsel. 8. The learned counsel for the Insurance Company then contends that the claimant was aged 19 years. At worst, he would have depended on his father only for a further period of seven years. Thereafter, the father might have started depending on the son. At any rate, the son cannot be assumed to continue to depend on his father after he attains the age of 26 years. In that view of the matter, reckoning 7 as the multiplier is absolutely justified. MACA 2944/2008 6 9. The learned counsel for the Insurance company then contends that the deceased would have continued in his present employment only till he attains the age of 55 years. View from that angle also, adoption of 7 as the multiplier (55-48) is absolutely justified, argues counsel. 10. The learned counsel for the Insurance company then contends that at any rate if any multiplier above seven years were to be taken into consideration, differential multiplicand has realistically got to be taken into account considering the change of status of the deceased from that of a regularly employed college lecturer into a pensioner/retired college lecturer. In any view of the matter, the amount presently awarded does not warrant interference , contends the counsel. 11. The learned counsel for the appellant has taken us through the decisions in **Sarla Verma v. Delhi Transport Corporation[(2009)6 S.C.C.121]** ; **K.R.Madhusudhan & Others. v. Administrative Officer & Another [A.I.R.2011 S.C.979]** ; **Savita Sharma & Others. v. Union of India/Chandigarh Administration & Another[ 2008 ACJ 2032]** , **Jai Prakash v. National Insurance Co. Ltd.[2010(1)** MACA 2944/2008 7 **KLT.774(SC)], P.S.Somanathan & Others. v. District Insurance Officer,[(2011)3 S.C.C.566]** and Arun Kumar **Agrawal v. National Insurance Co.(2010 9 S.C.C. 218)** 12. The learned counsel relying on these decisions contends that when the multiplier multiplicand method is pressed into service it takes into account all the imponderable and the possible turn of events. Thereafter, it is impermissible to adopt differential multiplicand. It is further contended that depending on the age of the son/dependent, a multiplier cannot be chosen because even assuming that the son ceases to depend on the deceased, whatever accretion to the estate would have been earned by the deceased that would in turn have devolved upon the claimant/son and he would then be entitled to such amount as the loss of estate. Inasmuch as no further amount under the head of loss of estate has been awarded, the full multiplier ought to have been taken into account and the differential multiplicand should not have been applied for any period taken in by the multiplier. 13. The learned counsel for the Insurance company in turn submits that where the multiplicand is high, a lower multiplier MACA 2944/2008 8 is certainly justified. The counsel relied on the decision in **United India Insurance Co. v. Patricia Jean Mahajan, [A.I.R.2002 S.C.2607]** . The counsel also relies on the decision in **Union of India and Others v. K.S.Lakshmi Kumar & Others, 2001 ACJ 134** . The learned counsel submits that adoption of a lesser multiplier and acceptance of a differential multiplicand are not anathema to law and depending upon the fact situation in each case appropriate multiplier and multiplicand can be chosen by the court. 14. We have considered all the relevant inputs. Computation of compensation is an art and not a science of exatitude. Various inputs and imponderables have to be taken into account. No precedent can be held to completely cover all possible situations which may arise in future. A Tribunal cannot lose sight of the fundamental mandate under Section 165, that just compensation must be made available to the victims/their dependents. Ascertainment of the just and reasonable compensation must take into account all the relevant inputs. The death of a predecessor should not deprive the claimants of their legitimate expectations. At the same time, it has to be MACA 2944/2008 9 ensured that a wind fall or bonanza does not result on account of the death of the predecessor. The decision in **Sarla Verma (supra)** itself makes it clear that appropriate deviation in exceptional cases is permissible. Without being prisoners of the course followed by the courts of co-ordinate jurisdiction or superior court in any other precedent, we must try to ascertain the quantum of compensation payable true to the guidelines offered in such precedent. That must be our endeavour in this case also. 15. Going by the age of the deceased as also the age of the claimant/appellant(48 years and 19 years), 13 can certainly be accepted as the multiplier ordinarily. Of course, the 6[th] respondent mother was aged 66 years and if her age alone were to be taken into account, only 5 can be adopted as the multiplier. Therefore, the crucial question is whether 13 which would be the multiplier ordinarily can be adopted in this case also. In coming to this conclusion, one cannot lose sight of the fact that the appellant would certainly not have been dependent on the deceased for a period of 13 years which is the multiplier applicable to the deceased. It may be idle to assume that he MACA 2944/2008 10 would have continued to depend on the deceased after he had attained the age of 26 years, but it cannot be lost sight of that whatever accretion could have been made to the estate of the deceased, the appellant as the sole legal heir would have been entitled for such entire accretion. 16. Similarly, it would be totally unscientific to assume that the same multiplicand will have to be reckoned for the entire period of 13 years. At the age of 55, as per the present indications the deceased would certainly have had to retire from service. Subsequently, he may not have sat idle at home and in addition to his pension he may have earned some amount by some engagement. 17. We do not find anything defective in the reasoning followed by the Tribunal that the deceased may have spent one half of the amount on himself, if he were having only himself, the adult son and aged mother available to share his monthly income. 18. Having reminded ourselves of all these relevant inputs, we shall now attempt to ascertain the multiplier and the multiplicand. 23,000/- can be accepted as the monthly income MACA 2944/2008 11 at the time of the death of the deceased. He was in a stable and settled employment and due provision has to be made for improvement in prospects. The certificate produced reveals his probable income in May 2007 and that confirms that it will only be reasonable to provide for future improvement in prospects. Following the decision in **Sarla Verma(supra)** , 30% can be assumed to be the possible improvement. That would mean that an amount of Rs.29,900/- (23,000x130/100)can be reckoned as the monthly income. From this income-tax will have to be deducted. Other cesses and levies must also be deducted. Even giving due allowance or all such deductions, we find it very easy to conclude that 25,000/- can be reckoned as the amount available for expenditure with the deceased every month for the remaining period. 19. We now come to the personal expenses of the deceased. The Tribunal reckoned one half as the personal expenses of the deceased and one half as the amount that will be available for the dependents. **Sarla Verma(supra)** postulates that where there are 2 to 3 members in the family, 1/3[rd] can be reckoned as the deduction. It does at the same time stipulate MACA 2944/2008 12 that when the deceased is a bachelor, he can be expected to spend one half on himself. The question strictly is not whether he is a bachelor or a married person, the question is one of contribution to the dependents. In that view of the matter, we are of the opinion that primary dependent on the deceased could only have been the son. Of course his aged mother may also have depended on him for some period. In these circumstances, the Tribunal's assumption that one half of the amount would have been spent by the deceased on himself,does not in any view of the matter, appear to us to be incorrect or erroneous as to persuade us to invoke our appellate jurisdiction under Section 173 of the Motor Vehicles Act. We agree with the Tribunal that one half can be set apart for the personal expenses of the deceased. We must also note that the deceased was getting older and expenditure on many planks would only have increased as he advanced in age. At any rate, we do not want to interfere with that finding of the Tribunal. 20. The next question is about the multiplier. Along with that will have to be considered the question whether the adoption of the differential multiplicand is necessary for any MACA 2944/2008 13 period. Reliance on precedents to show that split multiplier cannot be employed does not appeal to us at all. A person at the end of his long career may be drawing a high monthly income, but he cannot expect to do that after his retirement. The theory propounded in absolute terms that the date of retirement is irrelevant and that the same multiplier ought to be adopted does not appear to us to be reasonable, rational or logical. Taking the realities of the situation differential /split multiplier can be and will have to be adopted in appropriate cases. So reckoned, we can draw a line at the end of the 7[th] year after the death of the deceased. By then, he would have been obliged to retire on superannuation . The son would have been aged 26 years then and the extend of dependency would have been considerably reduced at any rate. In these circumstances, 7 taken as the multiplier for the multiplicand of Rs.25000 does appear to us to be reasonable. But the deceased would certainly have continued to earn for a further period of six years(13-7). For this period it will be illogical to assume that the appellant is not entitled for any compensation. Even if the appellant may not have directly depended on the deceased for sustenance, MACA 2944/2008 14 accretion to the estate could have benefited the appellant **.** 21. For the remaining six years (13-7), we think it absolutely reasonable to assume that the income of the deceased would have been half the present multiplicand i.e.25,000/- taken into consideration by us including the prospects of improvement . For this we take note of the pension to which the deceased would have been entitled to after his superannuation as also the income he would have earned from post retiral engagement. We take note of the potential for a college lecturer to engage himself in such activities after his retirement. For the six remaining years, therefore, it would be absolutely reasonable to adopt the split multiplicand and reckon the multiplier as 3 (6 x1/2). In that view of the matter, we find it absolutely safe to assume that compensation can be awarded reckoning the multiplier as 10 (7+(6x1/2)). So reckoned, we come to the conclusion that the appellant and the 6[th] respondent together would be entitled to an amount of Rs.15,00,000/(25000x12x1/2x10)as compensation. That amount, we assume is in tandem with our assessment of the total loss under the head of dependency which the appellant and the 6[th] respondent would MACA 2944/2008 15 have suffered . 22. An amount of Rs.5,000/- under the head of funeral expenses and another Rs.5,000/- for pain and suffering have already been awarded. Under the head of compensation for love and affection and the loss of estate no amount has been awarded. We are of the opinion that no further amount ( even the notional amount) need be awarded under the head of loss of estate as we have already taken that into account while considering the loss of dependency. However, as compensation for the loss of love and affection, we are satisfied that a further amount of Rs.7,500/- can be awarded. The above discussions lead us to the conclusion that the appellant and the 6[th] respondent are entitled to the following further amount of compensation in addition to the amount already awarded by the Tribunal. 1) Loss of dependency :Rs.5,34,000/(25000x12x1/2x10 minus Rs.9,66,000) 2)Loss of love and affection : Rs.7,500/Total : Rs.5,41,500/- MACA 2944/2008 16 23. A contention has been raised that the interest awarded at the rate of 7% per annum is not justified. Counsel for the appellant argues that at least 7.5% per annum must have been awarded. Counsel for the Insurance Company relying on the decision in **Sarla Verma(supra)** points out that only 6% interest need be awarded as that is the interest awarded in that decision by the Supreme Court. 24. The course adopted by the Supreme court in a given case cannot be reckoned as declaration of law under Article 141 of the Constitution. Section 171 of the Motor Vehicles Act governs the field regarding award of interest. When interest has been awarded at 7% by the Tribunal, we are not persuaded to invoke our appellate jurisdiction to interfere with such direction. May be in an appropriate case, we would have awarded higher or lower rate of interest. At any rate, we find no reason to interfere with the discretion exercised by the Tribunal in the matter of award of interest. We note that the legislature in spite of specific recommendations by the Law Commission has not chosen to prescribe specific rate of interest or even minimum or maximum rate of interest under Section 171 of the Motor MACA 2944/2008 17 Vehicles Act. Therefore, we feel that the appellate jurisdiction need not be invoked to interfere with the rate of interest directed to be paid in the impugned award. 25. No other contentions are raised. We are satisfied that the appeal deserves to be allowed in part. 26. In the result, ## a) this appeal is allowed in part. b)The appellant and the 6[th] respondent are found entitled to a further amount of Rs.5,41,500/-in addition to the amount already awarded by the Tribunal under the impugned award. c) Interest shall be payable on the entire amount of compensation for the period and at the rate as directed by the Tribunal. c)All other directions of the Tribunal are upheld. ## Sd/- **R.BASANT, JUDGE** ## **Sd/-** ## **M.C. HARI RANI,JUDGE** ks. TRUE COPY P.S.TO JUDGE MACA 2944/2008 18