M/S National Insurance Company Ltd v Saraswathy Amma, Anju, Anjana, Neethu Das and Rathnamma K

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 ``` ## **`MACA NO. 2270 OF 2022`** ``` AGAINST THE AWARD DATED 16.12.2021 IN O.P(M.V) NO.245 OF 2018 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` M/S NATIONAL INSURANCE COMPANY LTD, PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM - PIN 691001, REPRESENTED BY ADMINISTRATIVE OFFICER (LEGAL) NATIONAL INSURANCE COMPANY LTD, REGIONAL OFFICE, OMANA BUILDING, PADMA JN. JEWS STREET, ERNAKULAM KOCHI, PIN - 682035 BY ADVS.SRI.C.SIVANUNDAN SRI.S.K.AJAY KUMAR ``` ``` RESPONDENTS / PETITIONERS 1 TO 3 AND RESPONDENTS 1 AND 2: ``` - **`1 SARASWATHY AMMA, W/O.RAJENDRAN PILLAI, PUTHOOR VEEDU, CHITTOOR, PANMANA, CHAVARA, KOLLAM, NOW RESIDING AT CHARUVIL PUTHEN VEEDU, KARALI TOWN WARD, WEST KALLADA, PIN - 691500`** - **`2 ANJU, D/O.RAJENDRAN PILLAI, PUTHOOR VEEDU, CHITTOR, PANMANA, CHAVARA, KOLLAM. NOW RESIDING AT CHARUVIL PUTHEN VEEDU, KARALI TOWN WARD, WEST KALLADA, PIN - 691500`** - **`3 ANJANA, D/O RAJENDRAN PILLAI, PUTHOOR VEEDU, CHITTOR, PANMANA, CHAVARA, KOLLAM. NOW RESIDING AT CHARUVIL PUTHEN VEEDU, KARALI TOWN WARD, WEST KALLADA, PIN - 691500`** - **`4 NEETHU DAS, D/O.VINOD, VAYALILTHARA VEEDU, MARUTHADY (P.O) SAKTHIKULANGARA, KOLLAM DIST., PIN - 691003`** - **`5 RATHNAMMA K, D/O.VELU, THOPPIL PADINJATTATHIL, ITHOTTUVA, WEST KALLADA (P.O), PIN - 691500 BY ADV. SMT.T.RESHMA`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ``` ``` ON 14.03.2024, THE COURT ON 30.05.2024 DELIVERED THE FOLLOWING: ``` M.A.C.A. No. 2270 of 2022 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 2270 of 2022 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of May, 2024 ## **JUDGMENT** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 16.12.2021 in O.P(M.V) No.245/2018. The appellant is the insurer of the offending vehicle involved in the motor accident. The Original Petition was filed by the legal representatives of one Mr.Rajendran Pillai who succumbed to the injuries sustained by him in the motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 3. According to the learned counsel for the 3[rd] respondent, the Tribunal while adopting the multiplicand failed to deduct the income tax payable by the deceased. According to him, the multiplier was also incorrectly adopted as ‘11’ instead of M.A.C.A. No. 2270 of 2022 -:3:- ‘4’ for calculation of compensation towards loss of dependency in view of pre-retirement loss of income. According to the learned counsel ‘9’ would have been the multiplier adopted in the case of loss of post-retirement income. It was contended that the factum that the petitioners started receiving family pension from the month succeeding the death of the deceased was overlooked by the Tribunal while calculating the said compensation. According to him, the petitioners are not entitled to get compensation for pain and sufferings of the victim of the motor accident prior to his death, and therefore, `40,000/- ought not to have been awarded by the Tribunal in their favour. According to him, though it is evidenced from the scene mahazar forming part of the evidence on record as Ext.A3 that the deceased was also negligent in driving the vehicle, the Tribunal failed to find contributory negligence in the case. 4. The learned counsel for the petitioners contended on the contrary that the multiplier and the multiplicand adopted by the Tribunal were just and proper and therefore the impugned award is only to be maintained. According to her, the monthly M.A.C.A. No. 2270 of 2022 -:4:- income of the deceased was also fixed after making the statutory deductions from his gross salary. She also canvassed for maintaining 15% addition made by the Tribunal towards loss of future prospects of the deceased, relying on the dictum laid down by the Hon’ble Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)].** The learned counsel also relied on **Bhagyalakshmi v. Shriram General Insurance Co.Ltd. and Others [2020 KHC 5446]** , where it was held: “In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of `5,000/- to `15,000/- could be awarded under the head pain and sufferings in such cases.” 5. This Court has gone through the evidence on record. It is found from the final report marked in evidence as Ext.A2 that the 1[st] respondent alone was chargesheeted for rash and negligent riding and causing the motor accident in question. Apart from the contention raised, evidence was not adduced by M.A.C.A. No. 2270 of 2022 -:5:- the 3[rd] respondent before the Tribunal to establish that the final report is the outcome of some collusion of the petitioners and the investigating officer. Therefore, the dictum laid down by this Court in **The New India Assurance Co. Ltd. v. Pazhaniammal** [2011(3) KLT 648] will be squarely applicable to the case on hand and in such circumstances, the scene mahazar cannot form basis for arriving at a finding on rash and negligent driving of the deceased and thereby contributory negligence, as canvassed by the learned counsel. The argument advanced in that regard is liable to be repelled and this Court do so. 6. Though the learned counsel for the 3[rd] respondent canvassed for adopting split multiplier method, is not liable to be adopted in the case on hand, since the Hon’ble Apex Court in **Puttamma** v. **Narayana Reddy** [2014 (1) KLT 738 (SC)] has discouraged the adoption of that practice for calculation of compensation. Therefore, compensation is calculated by adopting ‘11’, the multiplier applicable to that age, for calculation of compensation. M.A.C.A. No. 2270 of 2022 -:6:- 7. The salary certificate of the deceased was marked in evidence as Ext.A6 which shows that he was getting `32,390/- as basic pay, `9,717/- as dearness allowance, `3,239/- as HRA, `200/- and `385/- respectively as the allowances towards washing and milk. Therefore, taxable income would be `42,107/(`32,390/- + `9,717/-). It is settled that for salaried persons liable to pay income tax, while arriving at the income based on which calculation is to be done, 10% needs to be deducted from the actual total income received by him. Therefore, 10% is liable to be deducted from `42,107/- and thus `37,897/- [(`42,107/- - (10% of `42,107/-)] is arrived at. 8. Since the victim of the motor accident suffered untimely death at his age of 53 years, 15% is liable to be added towards loss of future prospects and thus, `43,581/- (`37,897/+ 15% of `37,897/-) is arrived at. When compensation for dependency is calculated with the above modified factors, `38,35,128/- (`43,581/- x 12 x 11 x 2/3) is arrived at as payable. M.A.C.A. No. 2270 of 2022 -:7:- 9. In **Bhagyalakshmi** supra relied on by the learned counsel, the question of awarding compensation towards pain and suffering in death cases was dealt with. It was held that in cases where the death of the victim was not instantaneous, a conventional amount in the range of `5,000/- to `15,000/could be awarded towards pain and suffering. 10. But the Hon’ble Apex Court has directed in **United India Insurance Co.Ltd. Vs. Satinder Kaur @ Satwinder Kaur and others (2020 (3) KHC 760)** that the legal representatives of the deceased are not entitled to get compensation for the pain and sufferings of the victim of the motor accident, who died consequently. **Satinder Kaur @ Satwinder Kaur** supra was laid down by the Apex Court on 30.06.2020, later to the passing of the dictum in **Bhagyalakshmi** supra. Therefore, this Court is inclined to follow the dictum in **Satinder Kaur** supra. Thus compensation sought by the petitioners for pain and sufferings is discarded. 11. This Court is declined to interfere with the rate of interest fixed by the Tribunal. Compensation stood awarded by M.A.C.A. No. 2270 of 2022 -:8:- the Tribunal towards transportation expenses, damages to clothing, extra nourishment, funeral expenses, loss of consortium and loss of estate are maintained. 12. In the above manner of calculation of compensation afresh, `40,05,128/- (`38,35,128/- + `2,000/- + `2,000/- + `1,000/- + `16,500/- + `1,32,000/- + `16,500/-) (Rupees forty lakh five thousand and one hundred and twenty eight only) instead of `44,71,178/- stood awarded by the Tribunal. The said amount will also carry interest at the rate of 8% per annum as fixed by the Tribunal, from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent shall deposit the above sum with interest and costs in favour of the petitioners, within a period of two months from the date of receipt of a certified copy of this judgment, in accordance with the guidelines issued by this Court in Circular No.03/2019, dated 06.09.2019. M.A.C.A is allowed in part, accordingly. Sd/- **MARY JOSEPH, JUDGE.** NAB