MACA Nos. 1673, 2623 & 2626 of 2015 — National Insurance Company Limited v. Ankitha P.S. & Akhil P.A.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **HE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 20TH DAY OF MARCH 2018 / 29TH PHALGUNA, 1939** **MACA.No. 1673 of 2015** ## **----------------------** **AGAINST THE COMMON AWARD IN OPMV 158/2012 of III ADDL. MACT, ERNAKULAM DATED 28-10-2014** ## **APPELLANT/2nd RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED, KOCHI NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1. ANKITHA P.S., D/O SHEEJA, AGED 28, MANGALATH HOUSE, PERUMANA, MUHAMMA P.O., CHERTHALA TALUK, KANJIKUZHI VILLAGE 688320.** **2. AKHIL P.A., S/O SHEEJA, AGED 23, MANGALATH HOUSE, PERUMANA, MUHAMMA P.O., CHERTHALA TALUK, KANJIKUZHI VILLAGE 688320.** **R1 & 2 BY ADV. SRI.P.M.JOSHI** **R1 & 2 BY ADV. SMT.SIJI K.PAUL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2018, ALONG WITH MACA NOS.2623/15 AND 2626/15, THE COURT ON 20.03.2018 DELIVERED THE FOLLOWING:** ## **A.M.SHAFFIQUE , J** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. Nos. 1673, 2623 & 2626 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of March, 2018 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** M.A.C.A.No.1673 of 2015 is filed by the Insurance Company challenging the award in O.P.(MV).No.158 of 2012 and M.A.C.A.Nos. 2623 and 2626 of 2015 are filed by the claimants in O.P. (MV).No.163 of 2012 and 158 of 2012 respectively decided as per common award dated 28.10.15 by the III[rd] Additional Motor Accidents Claims Tribunal, Ernakulam. The appellants are aggrieved by the quantum of compensation awarded. 2. The claim arises out of an accident which occurred on 2.10.2011 at 8.45. am. On the fateful day Sri Ajayakumar and his wife Sheeja were travelling in a car bearing registration No. KL-23C-8240. The car was driven by their relative Ananda Vishnu. The vehicle in which they were traveling collided with a lorry bearing registration No. KL-03-L-4540. All three of them sustained serious injuries and died in the accident. O.P.(MV).No.158 of 2012 has been filed by the daughter and son claiming compensation on account of the death of their mother Sheeja and O.P.(MV).No. 163 of 2012 has been filed by daughter, son and their grandmother claiming compensation on account of death of Sri. Ajaykumar. Both the claims were allowed and compensation awarded under different heads as under: M.A.C.A. Nos.1673, 2623 & 2626/2015 -2- ## (i) O.P.(MV).No.158 of 2012 |Heads|Amount claimed|Amount awarded| |---|---|---| |Loss of dependency|3200000|2089464| |Transportation<br>expenses|15000|10000| |Damage to cloth|5000|2000| |Funeral expenses|10000|8000| |Medical expenses|10000|0| |Compensation for pain<br>and sufferings|50000|45000| |Compensation for loss<br>of mental agony|100000|10000| |Compensation for loss<br>of estate|100000|10000| |Compensation for loss<br>of guidelines to the<br>children|100000|0| |Total<br>**claim is limited to**<br>**Rs.35 lakhs**|3680000|2174464| ## (ii) O.P.(MV).No.163 of 2012 |Heads|Amount claimed|Amount awarded| |---|---|---| |Loss of dependency|2200000|204060| |Transportation<br>expenses|10000|8000| |Damage to cloth|5000|2000| |Funeral expenses|10000|10000| |Medical expenses|2000|0| |Compensation for pain<br>and sufferings|50000|45000| M.A.C.A. Nos.1673, 2623 & 2626/2015 -3- |Compensation for loss<br>of mental agony|100000|15000| |---|---|---| |Compensation for loss<br>of estate|50000|10000| |Compensation for loss<br>of guidelines to the<br>children|80000|0| |Compensation for loss<br>of consortium|50000|20000| |Total<br>**claim is limited to**<br>**Rs.20 lakhs**|2557000|314060| 3. First I shall deal with claimants appeal. It is argued that in regard to O.P(MV).No. 158 of 2012, the person who died was a school teacher by profession and she was drawing a salary of Rs.26,788/-. She was only 50 years of age. Taking into account her future prospects in life an additional 25% ought to have been added to compute the loss of earnings. Further 50% of the income is deducted towards personal and living expenses on account of the fact that the number of dependents were 2. It is argued that only 1/3[rd] of the amount ought to have been deducted towards personal and living expenses. There is no dispute regarding the multiplier, which is taken as 13. It is also argued that they were entitled for Rs.15,000/- as funeral expenses and only Rs.8,000/- was awarded. For pain and suffering, the entitlement was only Rs.15,000/- whereas Rs.45,000/- M.A.C.A. Nos.1673, 2623 & 2626/2015 -4- was awarded by the Tribunal. The Tribunal awarded Rs.10,000/towards the compensation for mental agony, which was not appropriate based on the recent judgment of the Apex Court. With regard to loss of estate, only 10,000/- has been granted and the appellants claim a further amount of Rs.5,000/- under that head. Under the head loss of love and affection, nothing has been awarded by the Tribunal whereas the claimants are entitled for Rs.50,000/each under that head. 4. Now coming to the claim in O.P.(MV).No. 163 of 2012 the salary of the deceased was Rs.18,310/- and taking into account future prospects it should have been increased by 15%. Here again, the Tribunal had reduced 50% towards personal expenditure, which according to the counsel ought to have been 1/3[rd] . There is no dispute regarding the multiplier, which is taken as 11. In regard to funeral expenses, claimants are entitled to Rs.15,000/- but only Rs.10,000/was awarded by the Tribunal. With regard to the compensation for mental agony they are entitled for a further amount of Rs.5,000/- and as compensation towards loss of love and affection a further amount of Rs.50,000/- each. 5. In the appeal filed by the insurance company against the M.A.C.A. Nos.1673, 2623 & 2626/2015 -5- award in O.P. 158 of 2012, it is contended that the Tribunal ought to have considered the fact that deceased would have retired at age of 56 and therefore, the calculation of dependency by adopting a multiplier of 13 by taking same multiplicand as Rs.26,788/- is not correct. It was therefore argued that a split multiplier ought to have been taken. For the first 6 years the salary could be computed at Rs.26,788/- and for the remaining 7 years only a notional income should have been taken. It is also contented that the Tribunal erred in granting Rs.45,000/- towards pain and suffering. 6. Issue regarding compensation in the case of death of an employed person has been decided by a Constitution Bench in **National Insurance Company Limited v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. Apex Court considered the cleavage of opinion expressed in **Reshma Kumari & Others v. Madan Mohan & Another** [(2013) 9 SCC 65] and **Rajesh & Others v. Rajbir Singh & Others [** (2013) 9 SCC 54]. The conflict of opinion was observed by a two Judge Bench of the Apex Court in **National Insurance Company Limited v. Pushpa & Others** [(2015) 9 SCC 166]. While considering the said conflict of opinion, the Constitution Bench answered the reference in para 61 which reads as under: M.A.C.A. Nos.1673, 2623 & 2626/2015 -6- “61. In view of the aforesaid analysis, we proceed to record our conclusions: ## (i) xxxxxxxx. ## (ii)xxxxxxxx (iii) While determining the income, an addition of 50% of actual salary to the income of 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 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self - employed 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. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the Courts shall be guided by paragraphs 30 to 32 of _Sarla Verma_ which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in _Sarla Verma_ read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, M.A.C.A. Nos.1673, 2623 & 2626/2015 -7- Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 7. In clause v, paragraph 30 to 32 of the judgment in **Sarla Verma & Others v. Delhi Transport Corporation & Another** (2009) 6 SCC 121= 2010 (2) KLT 802 (SC) which has been approved for the purpose of determination of the multiplicand. The said paragraphs reads as under: "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one - third (1/3rd) where the number of dependent family members is 2 to 3, one - fourth (1/4th) where the number of dependent family members is 4 to 6, and one - fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as M.A.C.A. Nos.1673, 2623 & 2626/2015 -8- dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non - earning sisters or brothers, his personal and living expenses may be restricted to one - third and contribution to the family will be taken as two - third." 8. It was also indicated that the multiplier shall be as indicated in the table in **Sarla Verma** (supra) in Paragraph 42, which has been extracted in paragraphs 44 of **Pranay sethi** (supra) as under. “44. As far as the multiplier is concerned, the claims tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of _Sarla Verma_ read with paragraph 42 of the said judgment. For the sake of completeness, paragraph 42 is extracted below: "42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M - 17 for 26 to 30 years, M - 16 for 31 to 35 years, M - 15 for 36 to 40 years, M - 14 for 41 to 45 years, and M - 13 for 46 to 50 years, then reduced by two units for every five years, that is, M - 11 for 51 to 55 years, M - 9 for 56 to 60 years, M - 7 for 61 to 65 years and M - 5 for 66 to 70 years." M.A.C.A. Nos.1673, 2623 & 2626/2015 -9- 9. The deceased in both these cases were employed and there is no dispute regarding the salary drawn by them at the time of their death. Taking into account the principles laid in the aforesaid judgments the first aspect to be considered is the multiplicand. In **Sarla Verma** (supra) which is approved by the Constitution Bench in **Pranay Sethi** (supra), it was held that where the deceased is married, the deduction towards the personal and living expenses should be 1/3[rd] , where the No. of dependent family members are 2 to 3. In the instant cases dependents are 2 in one case and 3 in the other. Therefore, only 1/3[rd] is to be deducted from the total salary towards personal and living expenses. 10. That apart, to cater to the requirement of future benefits and increase in salary, the addition should be 30% if the age of the deceased is between 40 to 50 years. In case it is 50 to 60 years, the addition should be 15%. The actual salary is read as actual salary less tax. In the case of the deceased in O.P.(MV).No. 158 of 2012, Ext.A10 would show that her total salary was Rs. 26788/- and after deduction the net amount would come to Rs.21,233/-. Ext.A12 would show that at the time of death she was holding the post of High School Assistant. It also would indicate that she was having a service of 8 years and 5 M.A.C.A. Nos.1673, 2623 & 2626/2015 -10- months as per rules if she had been alive. In so far as she is below the age of 50 as held in **Pranay Sethi** (supra), an addition of 30% has to be given to the salary. When children are the claimants they are not entitled for any compensation under the head loss of consortium which is awarded in favour of the wife. As far as children are concerned they are entitled for a compensation of loss of love and affection. Compensation for loss of love and affection can be reasonably fixed at Rs.50,000/-. 11. Taking into account all these facts, the yearly income of the deceased will come to 26788x12=Rs.3,21,456/-. 1/3[rd] is to be deducted from Rs.3,21,456/-towards personal and living expenses, in which event the annual income will come to Rs.2,14,304/-. 30% of the aforesaid amount is to be added towards future earnings, in which event the annual income come Rs.2,14,304/-+ Rs.64,291/- = Rs.2,78,595/-. Hence The total loss of earning would come to Rs.2,78,595.20x13 = Rs.36,21,737/- With reference to the other claims, the funeral expenses has to be increased from Rs.8,000 to Rs.15,000, compensation for pain and suffering has to be reduced from Rs.45,000/- to Rs.15,000/-. Compensation for mental agony awarded at Rs.10,000 has to be reduced. Award of loss of estate at M.A.C.A. Nos.1673, 2623 & 2626/2015 -11- Rs.10,000/- has to be enhanced at Rs.15,000/-. Having regard to the aforesaid findings, the award in O.P.(MV).No.158 of 2012 stands modified as under: 1. Loss of earning/dependency Rs.36,21,737/2. Transportation expenses Rs.10,000/3. Damage to cloth Rs. 2,000/4. Funeral expenses Rs.15,000/- 5. Compensation for pain and suffering Rs.15,000/- 6. Compensation for mental agony Nil 7. Compensation for loss of estate Rs.15,000/8. Compensation for loss of love and affection to the children Rs.50,000/- Total Rs.37,28,737/- 12. In so far as the claimants have limited their claim to Rs.35 lakhs and it is found that the claimants are entitled for much higher amount, for the excess amount awarded over and above 35 lakhs, the claimants shall remit additional court fee in terms of the procedure prescribed. 13. In regard to O.P.(MV).No.163 of 2012, the salary of the deceased who was working as a Foreman of Keltron Controls, Aroor is shown as Rs.18,310/- and Ext.A27 is the salary certificate for the M.A.C.A. Nos.1673, 2623 & 2626/2015 -12- month of September, 2011. Taking into account the fact that he is above the age of 50, 15% increase has to be given and the multiplier to be adopted is 11. Since the dependents are 3 in number, the Tribunal erred in reducing the personal and living expenses by ½. Only 1/3[rd] ought to be deducted. Taking into account the aforesaid factual situation the multiplicand shall be worked out as under: Rs.18,310/-x12x2/3x11 = Rs.16,11,280/-. 15% of Rs.16,11,280 comes to Rs.2,41,692/-, in which event the total amount will come to Rs.18,52,972/-. In fact there is an apparent mistake in the award. There is arithmetical error in computation of loss of dependency, which has resulted in the mistake in total compensation as well. 14. Taking into account all these facts, the award stands modified as under: 1. Loss of dependency/earnings Rs.18,52,972/2. Transportation expenses Rs.8,000/3. Damage to cloth Rs. 2,000/4. Funeral expense Rs.15,000/5. Compensation for pain and suffering Rs.15,000/6. Compensation for mental agony Nil 7. Compensation for loss of estate Rs.15,000/- M.A.C.A. Nos.1673, 2623 & 2626/2015 -13- 8. Compensation for love and affection Rs.50,000/- 9. Compensation for loss of consortium Nil Total Rs.19,57,972/- 15. In the light of the fact that the total compensation awarded has been increased in O.P.(MV).No.158/2012, M.A.C.A.No.1673 of 2015 stands dismissed. 16. The appeals M.A.C.A.Nos. 2623 and 2626 of 2015 are allowed re-fixing the compensation as under: 1. Claimants in O.P.(MV).No.158/2012 shall be entitled to recover an amount of Rs.37,28,737/- as compensation with interest as directed by the Tribunal. Deficient court fee shall be collected from the claimants. 2. Claimants in O.P.(MV). No.163/2012 shall be entitled to recover an amount of Rs.19,57,972/- as compensation with interest as directed by the Tribunal. Sd/- ## **A.M.SHAFFIQUE, JUDGE** kp