MACA NO. 2850 OF 2016

**MACA NO. 2850 OF 2016** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 MACA NO. 2850 OF 2016** **AGAINST THE AWARD IN OP(MV) 1035/2011 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,THIRUVANANTHAPURAM** ## **APPELLANT/3RD RESPONDENT IN O.P (MV) NO.1035/2011:** THE NEW INDIA ASSURANCE COMPANY LTD. DIVISIONAL OFFICE NO.II, 2ND FLOOR, REMA PLAZA BUILDING, SS COIL ROAD, THAMPANOOR PO, THIRUVANANTHAPURAM -1, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM. BY ADV SRI.LAL GEORGE **RESPONDENTS/CLAIMANTS 1 TO 3 AND RESPONDENTS 1 & 2 IN O.P (MV) NO.1035/2011:** 1 SHEEBA, W/O.LATE RAHIM, UNNIPPARA, CHARUVILLA PUTHEN VEEDU, HOUSE NO.5/265 (12/419), KANJI NADA, PANGODE PO, NEDUMANGADU, THIRUVANANTHAPURAM, NOW RESIDING AT SPENCER MANSION, GUARD STATION, MYLAMOODU PO, BHARATHANNOOR, THIRUVANANTHAPURAM PIN 695 609. 2 MASTER SHIRA SPENCER .R MINOR S/O.LATE RAHIM, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SHEEBA, THE 1ST RESPONDENT RESIDING AT SPENCER MANSION, GUARD STATION, MYLAMOODU PO, BHARATHANNOOR, THIRUVANANTHAPURAM PIN 695 609. 3 SMT.FATHIMATHU BEEVI W/O.LATE ALIYARUKUNJU, RESIDING AT SPENCER MANSION, GUARD STATION, MYLAMOODU PO, BHARATHANNOOR, THIRUVANANTHAPURAM PIN 695 609. **MACA NO. 2850 OF 2016** **2** 4 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM -23. 5 ARJUN RAJ.K.K S/O.KARUPPAN K.S., KOCHUPARAMBIL VEEDU, NEAR KOTTAPPURAM FISHERIES SCHOOL, AROOR PO, CHERTHALA, ALAPPUZHA 688 534. BY ADVS. SRI.BENOJ C AUGUSTIN SMT.DEVI.R.SENS SRI.U.M.HASSAN SRI.A.K.MANU SRI.NAGARAJ NARAYANAN SMT.P.PARVATHY SRI.RAFEEK. V.K. SRI.SAIJO HASSAN SRI.VISHNU BHUVANENDRAN ALEX ANTONY SEBASTIAN P.A. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2850 OF 2016** **3** ## **JUDGMENT** The appellant/insurer was the 3[rd] respondent in O.P. (MV) No. 1035/2011 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents 1 to 3 in the appeal were the petitioners and the respondents 4 and 5 in the appeal were the respondents 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Rahim (deceased) - the husband of the 1st petitioner, the father of the 2[nd] petitioner and the son of the 3[rd] petitioner. It was their case that, on 05.07.2011, while the deceased was riding his motorcycle from Thiruvananthapuram to Alamcode along the Thiruvananthapuram – Kollam National Highway, a bus **MACA NO. 2850 OF 2016** **4** belonging to the 1[st] respondent and driven by the 2[nd] respondent in a negligent manner, hit the motorcycle of the deceased. The deceased had sustained fatal injuries and lost his life instantaneously. The petitioners were the dependents of the deceased. The deceased was working as a Village Officer in the Government of Kerala and was drawing a monthly salary of Rs.22,241/-. The 3[rd] respondent was the insurer of the bus. Hence, they claimed compensation from the respondents. 3. The 2[nd] respondent did not contest the proceeding and was set ex parte. 4. The 1[st] respondent had filed a written statement contending that there was no negligence on the part of the 2[nd] respondent. The accident was caused due to the negligence of the deceased. The 2[nd] respondent disputed the age, occupation and income of the deceased. However, it was contended that as the bus was validly insured with the 3[rd] respondent, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. **MACA NO. 2850 OF 2016** **5** 5. The 3[rd] respondent-insurer had filed a written statement admitting that the bus had a valid insurance coverage. Nonetheless,the 3[rd] respondent disputed the age, income and occupation of the deceased and contended that the compensation claimed was excessive. 6. The petitioners had produced and marked Exts.A1 to A18 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to recover from the 3[rd] respondent an amount of Rs.29,67,000/- with interest at the rate of 9% per annum from the date of petition till the date of realisation along with proportionate cost. 8. Aggrieved by the allowing of the claim petition, the 3[rd] respondent-insurer is in appeal. 9. Heard; Sri.Lal George, the learned counsel appearing for the appellant/3rd respondent-insurer, Sri.Nagaraj Narayanan, the learned counsel appearing for respondents **MACA NO. 2850 OF 2016** **6** 1 to 3/petitioners and Sri.Alex Antony, the learned counsel appearing for the 4[th] respondent-owner. 10. The sole ground of challenge in the memorandum of appeal is that, as the deceased was employed as a Village Officer in the Government of Kerala, the Tribunal ought to have adopted the split multiplier method and awarded compensation taking into account the income and age of the deceased as on the date of his retirement. 11. The question regarding adopting the split multiplier method is no longer res-integra , in view of the categoric declaration of law by the Hon'ble Supreme Court in **N.Jayasree & Others v. Cholamandalam MS General Insurance Co.Ltd** [2021 SCC Online SC 967] wherein it is held as follows: ## **“(II) Whether the High Court was justified in applying a split multiplier?** 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 eightythree thousand eight hundred thirtyone only). The evidence on record shows that he was a meritorious man having the qualifications of **MACA NO. 2850 OF 2016** **7** M.Sc, M.Phil. He was a firstclass 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 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 addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted. 24. In **Reshma Kumari & Ors. vs. Madan Mohan & Anr.** , a threeJudge 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 **MACA NO. 2850 OF 2016** **8** 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 5%. Actual salary should be read as actual salary less tax. **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 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 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 **MACA NO. 2850 OF 2016** **9** 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 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 therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said **MACA NO. 2850 OF 2016** **10** 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. **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 **Sarla Verma** as affirmed in **Reshma Kumari** .” 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 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. **MACA NO. 2850 OF 2016** **11** In view of the emphatic declaration of law in **Jayasree,** after following the decisions in **Sarala Verma, Reshma Kumari, Pranay Sethi, Puttamma** and **K.R. Madhusudhan,** the question of adopting the split multiplier method does not arise any further. In the above legal background, I do not find any merit in the appeal. In the result, the appeal is dismissed, confirming the impugned award passed by the Tribunal. It is made clear that the respondents 1 to 3 would be at liberty to move the Tribunal for withdrawal of the deposited amount and also for realising of the balance amount as per the conditions in the impugned award. ma/03.03.2022 Sd/- **C.S.DIAS, JUDGE**