MACA No. 3748 of 2016 (C) - National Insurance Co. Ltd. v. Anitha w/o Sathyadasan and Others

**MACA.No.3748 OF 2016(C)** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **MACA.No.3748 OF 2016(C)** **AGAINST THE AWARD IN OP(MV) 194/2013 DATED 08-08-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/2ND RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD MANJERI NOW REPRESENTED BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE,, OMANA BUILDING M.G.ROAD, KOCHI-35** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR SMT.RUPA MARIAM THOMAS** ## **RESPONDENTS/PETITIONERS:** **1 ANITHA W/O. SATHYADASAN @ SATHYADAS,CHERANGOTIL HOUSE, ANAMANGAD PO.,PERINTHALMANNA TALUK. PIN-679357 2 AKHILA C.S D/O. SATHYADASAN @ SATHYADAS, CHERANGOTIL HOUSE, ANAMANGAD PO., PERINTHALMANNA TALUK. PIN-679357 3 ANAGHA C.S D/O. SATHYADASAN @ SATHYADAS, CHERANGOTIL HOUSE, ANAMANGAD PO., PERINTHALMANNA TALUK. PIN-679357 R1 BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3748 OF 2016(C)** 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 3748 of 2016 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of March, 2021 ## **JUDGMENT** The appellant – insurance company was the 2[nd] respondent in OP(MV)No.194 of 2013 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the petitioners in the claim petition. The parties, for the sake of convenience and wherever the context requires, are referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, claiming compensation on account of the death of Sri.Sathyadasan @ Sathyadas (deceased), the husband of the 1[st] petitioner and the father of the petitioners 2 and 3. It was the case of the petitioners that : on 26.02.2012 while the deceased was riding a motorcycle bearing registration No.KL 53 B 3603 through the Perinthalmanna-Anamangad public **MACA.No.3748 OF 2016(C)** 3 road, a Maruti Alto Car bearing registration No.KL 52 9893 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner, hit the motorcycle of the deceased. The deceased succumbed to the injuries on the same day. The offending vehicle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The deceased was a school teacher in the AMUP School, Vengad and he was drawing a salary of Rs.31,880/- per month. The petitioners are the dependants of the deceased. Hence, the respondents 1 and 2 are liable to pay compensation to the petitioners which they quantified at Rs.54,00,000/- 3. The 1[st] respondent filed a written statement contending that the accident occurred solely due to the negligence on the part of the deceased. The offending vehicle was insured with the 2[nd] respondent. The amount of compensation claimed was excessive. Hence, the claim petition as against the 1[st] respondent be dismissed. 4. The 2[nd] respondent filed a written statement also contending that the accident occurred due to the negligence on the part of the deceased. The amount of **MACA.No.3748 OF 2016(C)** 4 compensation claimed was excessive and was without any basis. 5. Along with the claim petition the petitioners had also filed OP(MV)No.192/2013 seeking compensation from the respondents for the damage caused to the motorcycle. The Tribunal, by its order in IA No.4105/2015, consolidated and jointly tried both the claim petitions. 6. The petitioners marked Exts.A1 to A19 series in evidence. The respondents marked Ext.D1 to D3 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition by directing the 2[nd] respondent to pay an amount of Rs.78,52,447/- along with interest at the rate of 9% per annum from the date of petition till the date of deposit and proportionate costs. 8. Aggrieved by the impugned award passed by the Tribunal, the insurance company - the 2[nd] respondent - is in appeal. **MACA.No.3748 OF 2016(C)** 5 9. Heard Sri. Mathews Jacob, the learned Senior Counsel appearing for the appellants and Sri. R.Sreehari, the learned Counsel appearing for the respondents. 10. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. The learned Senior Counsel for the appellant contended that the Tribunal has without any basis fixed the salary of the deceased at Rs.51,600/-. Admittedly, by Ext.A16 salary certificate, the deceased was only drawing a monthly salary of Rs.31,800/-. The Tribunal on assuming that the 10[th] pay revision would come into effect from 1.7.2014 fixed the salary of the deceased at Rs.51,600/-, which is erroneous. Similarly, it was argued that the Tribunal had only deducted 1/4[th] of the compensation under the head 'loss of dependency' towards the personal living expenses of the deceased, which had to be 1/3[rd] as per the law laid down in **Sarala Varma and others v. Delhi Transport** **MACA.No.3748 OF 2016(C)** 6 **Corporation and others [(2010) 2 KLT 802].** It was also argued that the Tribunal ought to have deducted 20% of the salary of the deceased, towards income tax as he had taxable income. Moreover, as the deceased was a Government servant and was 49 years at the time of his death, he would have superannuated within 6 years at the age of 56, the Tribunal ought to have adopted the doctrine of split multiplier. Likewise, the Tribunal ought not to have awarded an amount of Rs.3,00,000/- under the head 'love and affection' because the Tribunal had awarded compensation under the head 'loss of consortium'. Similarly, the Tribunal had awarded excessive amounts under the conventional heads which again is against the law laid in **Sarala Varma** (supra). Therefore, the compensation awarded by the tribunal has to be scaled down in line with the precedents laid down by the Hon'ble Supreme Court. 12. Per contra, Sri.R.Sreehari, the learned counsel for the respondents argued that the income tax slab as in the year 2012 was only 10% , after the exempted limit **MACA.No.3748 OF 2016(C)** 7 of Rs.1,80,000/- per annum, for an annual income of Rs.5,00,000/-. Hence, only an amount of 10% can be deducted from the total salary of the deceased, after the exempted limit. He, however, fairly conceded that the Tribunal ought to have only adopted the salary reflected in Ext.A16 and could not have awarded compensation of the future revision of the salary. He relied on the decision of the Hon'ble Supreme Court in **Puttamma v. Narayana Reddy** [2014(1)KLT 738] and argued that the doctorine of split multiplier can only be adopted for cogent reasons. The appellant had not raised such a contention in the written statement, therefore, the appellant is precluded from raising the said contention for first time in the appeal. He prayed that reasonable and just compensation may be awarded as contemplated under law. 13. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of **MACA.No.3748 OF 2016(C)** 8 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 14. The appellant does not dispute the fact that by Ext.A2 final report, the police have found that it was the 1[st] respondent who was negligent in causing the accident. 15. The accident occurred on 26.6.2012. The Tribunal without any foundation in the pleadings or without any material has assumed that the deceased would have got revision in the salary in view of the recommendation of the 10[th] Pay Commission. Accordingly, the Tribunal fixed the salary of the deceased at Rs.51,600/-. Surprisingly, there was no material for the Tribunal to arrive at such a conclusion. Admittedly, as per Ext.A16, the deceased was drawing a monthly salary of Rs.31,880/-. In **National Insurance** **MACA.No.3748 OF 2016(C)** 9 **Company v. Birendar Kumar and others** [2020 KHC 6026] it has been held that income tax has to be deducted from the salary, to fix the net salary for the purpose of compensation. 16. It is brought to the notice of this Court that the income tax slab in the year 2011-2012, was 10% for income upto Rs.5,00,000/- subject to the exemption slab of Rs.1,80,000/- per annum. Therefore, the deceased had an income tax exemption up to Rs.1,80,000/- per annum, and had a taxable income only for the balance amount of Rs.2,02,560/-. Hence, the deceased would have to pay tax at the rate of 10%, for the above amount, which would come to an amount of Rs.20,256/-per annum. Accordingly, I re-fix the salary of the deceased, after the statutory income tax deduction of 10%, at Rs.30,192/- per month. 17. With regard to the contention regarding adopting the split multiplier, the Hon'ble Supreme Court in **Puttamma** (supra) has categorically laid down the law that doctrine of split multiplier should not be used **MACA.No.3748 OF 2016(C)** 10 unless for cogent reasons. 18. Undisputedly, the appellant had not raised the said contention before the Tribunal, either in the written statement or at the time of hearing. The deceased was aged only 49 years. He had a further service of more than six years. As noted by the Tribunal, the deceased would have been entitled for future revisions in his salary, if he was alive. It was only on account that no materials were produced before the Tribunal regarding the recommendation of Pay Commission that this Court scaled down the salary of the deceased and fixed it as per Ext.A16. In such circumstances, particularly, where there is no plea for adopting the split multiplier method and the same being raised for first time before this Court, I am of the considered opinion that there is no cogent reason made out before this to adopt the doctrine of split multiplier as laid down in **Puttamma** (supra).Accordingly, I reject the prayer to adopt the split multiplier method. **MACA.No.3748 OF 2016(C)** 11 ## **Personal living expenses** 19. The petitioners are the wife and children of the deceased and are three in number. In the light of the decisions in **Sarala Varma** and **Pranay Sethi** (supra), 1/3[rd] of the total income of the deceased has to be deducted towards his personal living expenses. However, the Tribunal has deducted 1/4[th] of the amount, which is against the law laid down in the above-cited decisions. Hence, I deduct 1/3[rd] of the income of deceased towards his living expenses, instead of 1/4[th.] ## **Multiplier** 20. As the deceased was 49 years of age at the time of his death, the relevant multiplier is '13'. In the light of the decisions in **Sarala Varma** and **Pranay Sethi** (supra), the petitioners are entitled for 30% of the compensation under the head 'loss of dependency towards future prospects'. Following the above parameters, I re-fix and hold that the petitioners are entitled only for an amount of Rs.40,81,958/- under the head 'loss of dependency with future prospects', instead **MACA.No.3748 OF 2016(C)** 12 of Rs.72,79,506/- awarded by the Tribunal. ## **Conventional Heads** 21. Now coming to the conventional heads of claim. The Tribunal has awarded an amount of Rs.25,000/- under the head 'funeral expenses', Rs.1,00,000/- under the head 'loss of estate' and Rs.1,00,000/- under the head 'loss of consortium'. 22. The Hon'ble Supreme Court in **Pranay Sethi** (supra) has held that only an amount of Rs.15,000/- can be awarded under the heads 'funeral expenses' and 'loss of estate' and Rs.40,000/- under the head 'loss of consortium'. Accordingly, I scale down the amounts awarded under the head 'funeral expenses' from Rs.25,000/- to Rs.15,000/-, and under the head 'loss of estate' from Rs.1,00,000/- to Rs.15,000/- . Like wise, as the 1[st] petitioner is the wife and the petitioners 2 and 3 are the children, they entitled to Rs.40,000/- each as spousal consortium and parental consortium. Hence, they are entitled to the total amount of Rs.1,20,000/under the said head of claim. **MACA.No.3748 OF 2016(C)** 13 ## **Pain and suffering** 23. The Tribunal has awarded an amount of Rs.3,00,000/- under the head 'pain and suffering'. This Court in **Kunjandy v. Rajendran** [2020(2) KLT 315] has held that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection'. In light of the said ratio, I set aside the amount awarded under the head 'loss of love and affection'. ## **Other heads of claim** 24. With respect to the amount of compensation awarded by the Tribunal under the head transport, clothing, pain and sufferings I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings and materials on record, the law laid down by the Hon'ble Supreme Court in the afore-cited precedents, I allow the appeal by modifying the impugned award passed by the Tribunal by re-fixing the total quantum of compensation payable to the respondents/petitioners as **MACA.No.3748 OF 2016(C)** 14 modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport|2,000/-|2,000/-| |2|Clothing|1,000/-|1,000/-| |3|Funeral expenses|25,000/-|15,000/-| |4|Pain and suffering|10,000/-|10,000/-| |5|Loss of estate|1,00,000/-|15,000/-| |6|Loss of consortium|1,00,000/-|1,20,000/-| |7|Loss of dependency with<br>future prospects|72,79,506/-|40,81,958/-| |8|Loss of love and<br>affection|3,00,000/-|nil| |9|Medical expenses|34,741/-|nil| |||78,52,500/-|42,44,958/-| In the result, the appeal is allowed by modifying the impugned award and directing the appellant to pay the respondents/petitioners an amount of Rs.42,44,958/as compensation with interest at the rate of 9% per annum from the date of petition till the date of payment with proportionate costs. Needless to mention that if the appellant has already deposited any amount, as directed by this Court on 30.01.2017, the appellant **MACA.No.3748 OF 2016(C)** 15 need only deposit the balance amount within a period of two months from the date of receipt of a certified copy of this judgment after deducting the liability if any, of the respondents/ petitioners towards court fee and legal benefit fund. The disbursement of the compensation to the respondents/ petitioners shall be disbursed in proportion and as per the conditions fixed in the impugned award. **Sd/C.S.DIAS,JUDGE** dlk 24.03.2021 **MACA.No.3748 OF 2016(C)** 16 The judgment dated 24/03/2021 in MACA 3748/2016 is corrected as per order dated 16/07/2021 in I.A.02/2021 in MACA 3748/2016 as follows: Word and figure Rs.34,941/-, which was the amount incurred towards the medical expenses of the deceased and included in column No.6 of the table in page 12 of the impugned award, is included under the Head Amounts modified and recalculated by this Court occurring on page 14 of the Judgment and the total amount in that Head is modified as Rs.42,79,899/instead of Rs.42,44,958/- and the order dated 16/07/2021 in IA 02/2021 in MACA 3748/2016 that 'the application is allowed, by directing the appellant to also pay an amount of Rs.34,941/- to the Respondents/petitioners in addition to the amount directed to be paid in the judgment dated 24/03/2021' is appended to the Judgment dated 24/03/2021 in the MACA. Sd/- DEPUTY REGISTRAR.