National Insurance Co. Ltd. v. Leela & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **MACA.No. 681 of 2013** **AGAINST THE AWARD IN OP(MV)No.1484/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM DATED 15-10-2012** ## **APPELLANT/3rd RESPONDENT:** **THE NATIONAL INSURANCE CO. LTD., KOLLAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35.** ## **BY ADV. SRI.GEORGE CHERIAN (SR.)** ## **RESPONDENTS/CLAIMANTS:** - **1 LEELA, W/O.DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA.P.O., PIN-691304.** - **2 SARITHADAS, D/O.DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA.P.O., PIN-691304.** - **3 SAVITHADAS, D/O.DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA.P.O., PIN-691304.** - **4 ATHUL DAS, S/O.DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA.P.O., PIN-691304.** - **5 SARASAMMA, M/O.DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA.P.O., PIN-691304.** **BY ADVS.SMT.CHITHRA.S.BABU SMT.RENY ANTO SRI.PRATHEESH.P** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2017, ALONG WITH CO.64/2013, THE COURT ON 20.03.2019 DELIVERED THE FOLLOWING:** M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940 CO.No. 64 of 2013 IN MACA. 681/2013** **AGAINST THE AWARD IN OP(M.V)NO.1484/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM DATED 15-10-2012** ## **CROSS OBJECTORS/RESPONDENTS 1 & 3 TO 5:** - **1 LEELA, W/O.DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA P.O., KOLLAM.** - **2 SAVITHADAS,D/O DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA P.O., KOLLAM.** - **3 ATHUL DAS,S/O DEVADAS, REVATHY, THEKKUMKARA PULLICHIRA P.O., KOLLAM.** - **4 SARASSAMMA,M/O.DEVADAS, REVATHY, THEKKUMKARA, PULLICHIRA P.O., KOLLAM.** ## **BY ADV. SRI.PRATHEESH.P** M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 3 ## **RESPONDENT/APPELLANT/2ND RESPONDENT:** - **1 THE NATIONAL INSURANCE CO. LTD., KOLLAM REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G. ROAD, KOCHI-35.** - **2 SARITHADAS, D/O DEVADAS, REVATHY, THEKKUNKARA, PULLICHIRA P.O., KOLLAM.** **R1 BY ADV.SRI.GEORGE CHERIAN (SR.) R2 BY ADV.SMT.RENY ANTO** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2017, ALONG WITH MACA.NO.681/2013, THE COURT ON 20.3.2019 DELIVERED THE FOLLOWING:** M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 4 ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeal is directed against the judgment and award in O.P.(MV)No.1484 of 2009 dated 15.10.2012 passed by the Motor Accidents claims Tribunal, Kollam. The 3[rd] respondent therein viz., The National Insurance Co. Ltd. is the appellant herein. The claim petition was filed by the respondents herein who are the legal heirs of deceased one Mr.Devadas. In fact, they are the widow, children and mother of the deceased. A collision between a Lorry bearing Reg.No.KL-2/AA 3768 and a motor cycle bearing Reg.No.KL-2/AA 1941 resulted in the death of the aforesaid person and on sustaining grievous injuries he was taken to Holy Cross Hospital, Kottiyam. He underwent treatment there for five days before succumbing to the injuries. It is in the said circumstances that the claim petition was filed under Section 166 of the Motor Vehicles Act. As per the impugned award, the Tribunal had granted an amount of ₹24,97,000/- as compensation with interest at the rate of 7.5% from 16.12.2009 till the date of realisation and also a cost of ₹25,000/-. In the appeal preferred by the third respondent, the award is challenged on the ground that ignoring the fact that the deceased was aged 52 years at the time of the accident the Tribunal had applied the multiplier applicable to the age group to which he M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 5 belonged without applying the split multiplier. It is the contention that the deceased was a Head Clerk in State Bank of Travancore. The left over period of service of the deceased was only 8 years. The respondents herein filed a Cross Objection in the appeal essentially, seeking for enhancement of the quantum of compensation contending that future prospects was not taken into account by the Tribunal while fixing the monthly income for the purpose of arriving at the compensation payable under the head `loss of dependency'. That apart, it is contended that no amount was granted towards compensation for pain and suffering, extra nourishment, bystander expenses, transportation expenses and damage to cloth and article. It is also contended that the amounts granted under the heads `loss of consortium', `loss of love and affection', `funeral expenses' and `loss of dependency' are on the lower side. In view of the nature of the rival contentions in the appeal as also in the Cross Objection we are of the view that it is only proper to consider the appeal first. Subject to its decision the Cross Objection can be considered. 2. As noticed hereinbefore, the main contention of the appellant is that ignoring the fact that at the time of death deceased Devadas was having only less than 8 years service left and even then, instead of applying the split multiplier the Tribunal had applied the multiplier applicable with reference to the age group to which he M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 6 belonged. This, according to the appellant, is an error which requires interference in the light of the decision in **Puttamma** v. **Narayana Reddy (2014 (1) KLT 738)** . There is no dispute with respect to the position that at the time of the accidental death the deceased Devadas was aged 52 years and the period of left over service was only less than 8 years. In such circumstances, in the light of the decision in **Puttamma's** case (supra) we are of the considered view that the Tribunal ought to have applied the split up multiplier taking note of the fact that the age of superannuation was definite. Taking into account the occupation of the deceased, under any circumstances, it could not have been said that he would have continued to earn at the same rate during the post retiral period. For the purpose of computing compensation under the head loss of dependency Annexure A11 pay slip was produced. It would reveal that the gross salary of the deceased was ₹24,865/-. Going by the same, the total deduction was ₹18,202/-. Shortly stated, the net pay was only ₹6,663/-. Taking note of the nature of the deductions, we are of the considered view that for the pre-retiral period the monthly income ought to have been fixed as ₹16,000/-. But, then, reckoning the age group to which the deceased belonged we are inclined to add 15% to the said income towards future prospects. Thus, the monthly income during the pre-retiral period M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 7 would be fixed as 18,400/-. Taking into account the number of the₹ dependent family members deduction of ¼[th] ought to have been made for calculation purpose. The multiplier in that regard can be taken as `8'. Taking into account the said relevant factors the amount payable towards loss of dependency during the said period would be Rs.13,24,800/- (18400x12x8x3/4). For calculating compensation under the said head during the post-retiral period the multiplier `3' has to be applied. Taking into account the fact that the deceased was only a Head Clerk attached to State Bank of Travancore it cannot be believed that he would have continued to earn at the same rate as has been earning while in service had he been alive. Hence, we fix 10,000/- as₹ his monthly income for calculating compensation during the post-retiral period. Taking into account the aforesaid factors the amount payable under that head for the post-retiral period would be 2,70,000/-₹ (10,000x12x3x3/4). In such circumstances, we find substance in the appeal that the Tribunal went wrong in awarding an amount of ₹24,61,668/- as compensation for loss of dependency without applying the split multiplier. But, at the same time, the question is whether, owing to that reason, the compensation awarded by the Tribunal require interference at the instance of the appellant ? 3. In the Cross Objection, as noticed hereinbefore, the Cross Objectors got grievances regarding non-grant of amount of M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 8 compensation under certain heads and also denial of due compensation under certain other heads. Though an amount of 50,000/- was₹ claimed under the head `pain and suffering', no amount was granted. Admittedly, the deceased had been an inpatient for a period of five days before succumbing to the injuries sustained in the accident. The nature of the injuries revealed from Annexure-A8 wound certificate and Annexure-A9 postmortem certificate revealing antemortem injuries would show the serious nature of the injuries sustained by him. In such circumstances, there cannot be any doubt with respect to the position that he must have endured excruciating pain for a period of five days. Hence, we award an amount of 25,000/- for pain and suffering.₹ Towards loss of love and affection only an amount of 10,000/- was₹ granted. Respondents 2 to 4 are the children of the deceased including the two unmarried daughters who were then aged 24 years and 22 years respectively. The youngest child was aged 17 years only at the time of death of Devadas. Taking into account the said aspects, we are of the view that towards loss of love and affection an amount of ₹90,000/- can be granted additionally. Towards `loss of consortium' and `loss of estate' ₹10,000/- and ₹5,000/- respectively were granted. In the light of the decision of the Hon'ble Apex Court in **National Insurance Company Limited** v. **Pranay Sethi (2017 (4) KLT 662** M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 9 **(SC))** the amount payable under those heads are ₹40,000/- and ₹15,000/- respectively. In such circumstances, towards loss of consortium the first respondent/first cross objector is entitled to get an amount of ₹30,000/additionally. Towards loss of estate the respondents are entitled to get an amount of 10,000/- additionally.₹ Towards funeral expenses going by the aforesaid decisions an amount of 15,000/- is payable. The Tribunal has granted an amount of₹ ₹10,000/- under the combined head of compensation for funeral expenses and transportation expenses. Taking it as the amount awarded towards funeral expenses we are inclined to grant 5,000/-₹ additionally under that head. Evidently, after sustaining injuries deceased Devadas was taken to Holy Cross Hospital, Kozhikode and obviously, after his death his body was taken to home. In such circumstances, we are inclined to grant ₹2,000/- for transportation expenses. Towards bystander's expenses and extra nourishment no amount was granted by the Tribunal. Taking into account the year of the accident and the cost of living during the said period, we are inclined to grant expenses at the rate of ₹200/- per day, for five days, under those heads. Taking into account the number of days of hospitalisation, under those heads, we are inclined to grant an amount of 1,000/- each. Towards damage to clothing no amount was granted.₹ M.A.C.A.NO.681 of 2013 & CROSS OBJECTION NO.64 of 2013 10 The nature of the injuries would undoubtedly show that the dresses worn by the deceased at the time of the accident must have been spoiled. Hence, we are inclined to grant 1,000/- under that head.₹ In the said circumstances, the total amount payable as compensation to the respondents/the claimants is refixed as ₹17,94,800/(₹13,24,800 + 2,70,000 + 25000 + 1,00,000 + 40,000 + 15,000 + 15,000 + 2,000 + 1,000 + 1,000 +1,000). It is rounded off to ₹17,95,000/-. In such circumstances, the amount awarded stands modified and the award amount is scaled down to 17,95,000/-. The₹ claimants are entitled to get interest at the rate awarded by the Tribunal from the date of petition viz., 16.12.2009 till the date of realisation on the aforesaid amount. The appeal and the Cross Objection are disposed of accordingly. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS