High Court of KeralaSingle Judge2018-12-05Appeal allowed; enhanced compensation awarded; ...

Madhusudhanan Pillai and others v. Unnikrishnan Pillai and The Manager, ICICI Lombard General Insurance Company Ltd.

Case / Petition Number:MACA.No.1331/2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-12-05
Court Decision / Holding: Appeal allowed. The court adopts Kishan Gopal (supra) to compute compensation, determining a multiplicand of Rs.30,000 per annum with a 50% deduction for personal expenses, yielding Rs.15,000 per year. With a multiplier of 15 for a child aged up to 15, the loss of future prospects amounts to Rs.2,25,000. The Tribunal’s original award for loss of future prospects was Rs.1,60,000; the Court awards an enhanced amount of Rs.2,25,000, i.e., an enhancement of Rs.65,000, to be paid by the Insurance Company within two months from certified copy of the judgment, with interest from the date of application and costs as awarded by the Tribunal. The insured is directed to credit the amount via NEFT to the claimant’s bank account, with the claimant required to provide bank details and identification. The appeal is allowed, and the parties bear their own costs.
Final Disposition: Appeal allowed; enhanced compensation awarded; insurer to pay within two months; no interest for 366 days due to delay; NEFT payment with claimant bank details; costs as per Tribunal order.

Parties to the Case

Appellants / Petitioners

Madhusudhanan Pillai
Sudharma
Athira (represented by her mother Sudharma)

Respondents

Unnikrishnan Pillai (S/o GOPALA PILLAI) THEKKEDATHU VEEDU MULAVANA P.O JUNDARA (REGD OWNER OF KL2AA3517 VEHICLE)
The Manager, ICICI Lombard General Insurance Company Ltd, Kollam 691001 (Policy No TE 4674455, dated 11-05-2007)

Legal Representation & Advocates

Counsels for Petitioners

• Smt. M. Meena John
• Sreeja Nair

Counsels for Respondents

• Sri. R. Ajith Kumar (Advocate)

Case Synopsis & Summary

This Kerala High Court Motor Accident Claims Appeal arises under Section 166 of the Kerala Motor Vehicles Act, 1988. Appellants Madhusudhanan Pillai, Sudharma and Athira (represented by Sudharma) seek enhancement of compensation awarded in OPMV 1256/2007 by the Tribunal, in a case where a minor (Athira, aged 13) died after a bike collision caused by a dog on the road. The insurer, ICICI Lombard General Insurance Company Ltd., contested the claim, arguing that Section 166 proceedings were not maintainable and that there was no scope for enhancement since the award had already been satisfied. The Tribunal had awarded compensation for loss of future prospects but did not award loss of earnings. The court reviews relevant jurisprudence on quantum in cases involving minors, noting Kishan Gopal and Reshma Kumari (SC) guidance on multiplier selection for deceased up to 15 years of age, and contrasts Vijayan (DB) which it distinguishes. The court ultimately adopts Kishan Gopal’s framework, applying a multiplicand of Rs.30,000 with a 50% deduction for personal expenses (effectively Rs.15,000) and a multiplier of 15, resulting in an enhanced loss of future prospects of Rs.2,25,000. An enhanced total compensation of Rs.2,25,000 is ordered, with Rs.65,000 as the increment, payable within two months by NEFT, and with other costs as awarded by the Tribunal. The appeal is allowed.

Provisions of Law Cited

Section 166 of the Kerala Motor Vehicles Act, 1988Section 163A of the Kerala Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Sarla Verma multiplier doctrine for motor accident claims (age-based multiplier and second schedule)
Reshma Kumari v. Madan Mohan principle: for deceased up to 15 years, multiplier 15 irrespective of Section 166 or 163A

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the death of a minor warrants higher compensation for loss of future prospects and should include loss of dependency. They rely on Kishan Gopal and others v. Lala and others (2014) to adopt a multiplier of 15 with a multiplicand of Rs.30,000 per annum, with appropriate deductions for personal expenses, to enhance the Tribunal's award. They note that the Tribunal did not grant any loss of earnings given the deceased’s age (13 years). The appellants urge that the Division Bench Vijayan decision be distinguished but ultimately rely on the Kishan Gopal framework as authoritative for this age group.

Contentions of Respondents

The Insurance Company argues that enhancement is impermissible since the claim under Section 166 is not maintainable and that the tribunal's award should stand. It asserts there is no basis for increasing the quantum and points out no cross-appeal was filed. It relies on Vijayan’s reasoning to show that multiplier may differ, but the court ultimately finds Kishan Gopal more applicable for a 13-year-old and that Reshma Kumari supports the 15-year multiplier for minors.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Kishan Gopal and another v. Lala and others	2014 (1) SCC 244	Positive	Court relies on Kishan Gopal to adopt multiplier 15 with a 30,000 multiplicand (50% for personal expenses) for a minor deceased, consistent with the 15-year multiplier for minors.
Reshma Kumari v. Madan Mohan	2013(2) KLT 304 (SC)	Positive	SC ruling cited to support applying multiplier of 15 for deceased up to 15 years, irrespective of S.166 or S.163A.
New India Assurance Co. Ltd. v. Vijayan	2016(1) KLT 704	Distinguished	Division Bench decision relied upon by the insurer but the Kerala High Court distinguishes Vijayan and does not accept its reasoning for this case.
Sarla Verma v. Delhi Transport Corp.	Sarla Verma v. Delhi Transport Corp., (2009) 6 SCC 121	Positive	Court references the multiplier concept and Second Schedule framework from Sarla Verma to guide the calculation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018/14TH AGRAHAYANA, 1940 MACA.No. 1331 of 2012** **AGAINST THE AWARD IN OPMV 1256/2007 of M.A.C.T.,KOLLAM** **DATED 26-02-2011** ## **APPELLANT/S:** - **1 MADHUSUDHANAN PILLAI,AGED 34 YEARS S/O.RAGHAVAN PILLAI, VADAKKE VEEDU, EDAYILAPURA POOVATTOOR WESTS MADAVI P.O KOLLAM PIN 691507** - **2 SUDHARMA,AGED 30 YEARS W/O.MADHUSUDHANAN PILLAI, VADAKKE VEEDU, EDAYILAPURA POOVATTOOR WEST MAVADI P.O KOLLAM PIN 691507** - **3 ATHIRA, AGED 11 YEARS, VADAKKE VEEDU, EDAYILAPURA, POOVATTOOR WEST MAVADI P.O KOLLAM REPRESENTED BY HER MOTHER SUDHARMA (THE SECOND APPELLANT)** **BY ADVS. SMT.M.MEENA JOHN SREEJA NAIR** ## **RESPONDENT/S:** - **1 UNNIKRISHNAN PILLAI** - **S/O.GOPALA PILLAI THEKKEDATHU VEEDU MULAVANA P.O JUNDARA (REGD OWNER OF KL2AA3517 VEHICLE)** - **2 THE MANAGER** **ICICI LOMBARD GENERAL INSURANCE COMPANY LTD KOLLAM 691001 POLICY COVERAGE NO TE 4674455 DATED 11-05-2007** **BY ADVS. SRI.R.AJITH KUMAR (128/84) SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1331/2012 2 ## **J U D G M E N T** **An application filed under Section 166 of the Kerala Motor Vehicles Act, 1988 has given rise to the above appeal. The death of a minor in an accident is sought to be compensated by the father, mother and the sister. The minor child was travelling in a bike owned and driven by the 1[st] respondent who was a relative of the deceased. The accident occurred by reason of a dog crossing the road and there could be no negligence claimed as against the driver of the vehicle.** **2. The learned Counsel for the Insurance Company raises a preliminary objection that though they have satisfied the compensation amounts awarded by the Tribunal, there is no scope for enhancement especially since the claim itself under Section 166 was not maintainable. This Court** **is unable to countenance such a contention** MACA No.1331/2012 3 **especially since the Insurance Company has not chosen to file an appeal from the award. The mere gracious act of the Insurance Company of not having challenged the award would not prejudice the claimants. It is also pertinent that despite the appeal having been filed in the year 2012, the Insurance Company did not chose to file a cross appeal as against the enhancement. In such circumstances, this Court is unable to dismiss the appeal on the ground of the claim being not maintainable under Section 166.** **3. Now what remains is the enhancement to be** **considered. A minor aged 13 years died in the accident. The death occurred after 16 days of the** **accident. The compensation claimed is for enhancement of loss of earnings and loss of dependency. This Court finds that no loss of earning has been granted by the Tribunal which is appropriate insofar as the child being only 13** MACA No.1331/2012 4 **years age. Compensation for loss of future prospects was granted at** ` **1,60,000/-.** **4. The learned Counsel appearing for the appellant relies on** _**Kishan Gopal and another v. Lala and others [2014 (1) SCC 244]**_ **wherein, on the death of a 10 year old child, the Hon'ble Supreme Court had adopted the multiplier of 15 and multiplicand of 30000/- per annum. The learned Counsel appearing for the Insurance Company, however, would rely on a Division Bench decision of this Court reported in** _**2016(1) KLT 704 (New India Assurance Company Ltd. V. Vijayan)**_ **wherein the aforecited judgment was also considered.** **5. The learned Counsel for the insurance company relied on the Division Bench judgment of this Court to contend that the multiplier can only be 15 as adopted by the Tribunal and also that** _**Kishan Gopal**_ **(supra) need not to be relied on in all circumstances.** MACA No.1331/2012 5 **6. A perusal of the decision in** _**Vijayan**_ **would indicate that therein the Tribunal had adopted a monthly income of 3000/- in the case of a minor boy aged 13 years. The multiplier adopted was 20 after deducting 1/3[rd] towards personal expenses thus arriving at the figure of** ` **4.8 lakhs. The insurance Company was in appeal challenging the quantum of compensation awarded. On the question of multiplier to be applied** _**2013(2) KLT 304 (SC) [Reshma Kumari v. Madan Mohan]**_ **was relied wherein it is stated so in paragraph 40:** **40. In what we have discussed above, we sum up our conclusions as follows:** **(i) ...** **(ii) In cases where the age of the deceased is upto 15 years, irrespective of S.166 or S.163A under which the claim** **for compensation has been made, multiplier of 15 and the assessment as** MACA No.1331/2012 6 **indicated in the Second Schedule subject to correction as pointed out in Column** **(6) of the table in Sarla Verma should be followed.** **7. Hence the multiplier has to be taken at** **15 even if in** _**Kishan Gopal**_ **(supra) the multiplier applied is with respect to the age of the mother. The contention of the learned Counsel for the Insurance Company has to be accepted on this ground. However, on the other ground this Court does not find any reliance possible on the Division Bench judgment in** _**Vijayan**_ **(supra). Therein the compensation fixed was Rs.3000/- per month resulting in annual income of 36000/-. The Insurance Company had relied on** _**Kishan Gopal**_ **(supra)to reduce the quantum to Rs.30000/-. It was in that circumstances that the Division Bench distinguished** _**Kishan Gopal**_ **and awarded a higher compensation in the case of the deceased in that** MACA No.1331/2012 7 ## **case.** **8. In such circumstance, this Court is of the opinion that the multiplicand should be Rs.30000/- per annum as has been found in Kishan Gopal (supra) however from which one-half has to be reduced for personal expenses. In such circumstance the following enhancement shall be granted. Loss of future prospects= 15000*15-225000 The compensation hence would be Rs.2,25,000/-. There is awarded an enhancement of Rs.65,000/which shall be satisfied by the Insurance Company within a period of two months from the date of receipt of a certified copy of this judgment with interest from the date of application and costs, if any, as awarded by the Tribunal. The appellants would not be entitled to the interest for 366 days, being the delay occasioned in filing the appeal. The appellant shall produce a copy of a cancelled cheque of the bank account in her name with copy of** MACA No.1331/2012 8 **AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT to the said account, failing which the applicant-claimant can approach the Tribunal.** **The appeal would stand allowed. Parties are left to suffer their respective costs, in the appeal.** **Sd/-** **K. Vinod Chandran, Judge** **jma**