National Insurance Co. Ltd. v. Velappan Nair and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 MACA.No. 654 of 2008(G) ---------------------OPMV.1488/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... ## APPELLANT/3RD RESPONDENT: --------------------------------------- THE NATIONAL INSURANCE CO. LTD., THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS : CLAIMANTS: ------------------------- 1. VELAPPAN NAIR, S/O.RAMAN PILLAI, AISWARYA HOUSE, TC.15/725(1), C.S.M. NAGAR, HOUSE NO.16, EDAPPAZHANJI, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM-10. 2. RATHNAMMA, W/O. VELAPPAN NAIR, AISWARYA HOUSE, TC-15/725(1), C.S.M. NAGAR, HOUSE NO.16, EDAPPAZHANJI, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM-10. 3. SANJAI KUMAR, S/O. VELAPPAN NAIR, AISWARYA HOUSE, TC-15/725(1), C.S.M. NAGAR, HOUSE NO.16, EDAPPAZHANJI, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM-10. ADV. SRI.SANTHAN V.NAIR FOR R1 TO R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## R.BASANT & M.C.HARI RANI, JJ. ## ------------------------------------ ## M.A.C.A No.654 of 2008 ## ------------------------------------Dated this the 7[th] day of January 2010 ## JUDGMENT ## BASANT, J. The insurer is the appellant. Claimants are the parents and brother of a deceased person. The parents were aged 51 years and 45 years at the relevant time. The deceased was a young man aged about 25 years. He succumbed to injuries suffered in an accident which took place on 14-5-2002. He was allegedly running a proprietary establishment by name “Dhrishya Ragam”. Claimants claimed a total amount of Rs.15 lakhs as compensation. The claim was resisted. The Tribunal by the impugned award directed payment of a total amount of Rs.3,03,000/- along with interest and costs as per the details shown below: i) funeral expenses : Rs. 5,000/ii) Loss of estate : Rs. 5,000/iii) Pain and suffering :Rs. 5,000/iv) Loss of dependency (2000x12x1/3x18) : Rs.2,88,000/: ...................... Total : Rs.3,03,000/======== M.A.C.A No.654 of 2008 2 2. The appellant insurer claims to be aggrieved by the impugned award. What is the grievance? The learned counsel for the appellant contends that the Tribunal erred grossly in reckoning 18 as the multiplier. Following the decision in **Sarla Verma v. DTC** [(2009) 6 SCC 121], for a person aged 21 to 25 years, 18 is the appropriate multiplier. The learned counsel for the appellant does not dispute this fact. But the counsel contends that to arrive at a just and reasonable compensation, the Tribunal could not have mechanically taken the age of the deceased as the “be all and end all” in ascertaining the multiplier. The Tribunal should realistically have noted that the parents of the deceased were aged 45 and 51 years. Going by the schedule in **Sarla Verma** (supra), the multiplier applicable to a person aged 45 years could not, at any rate, have exceeded 14 in a case of death. In these circumstances, the Tribunal has erred grossly in reckoning 18 as the multiplier. 3. The learned counsel further submits that the Tribunal erred in deducting only 1/3 of the amount towards personal expenses of the deceased. Again relying on the dictum in **Sarla Verma** , the counsel argues that only half the income could have been reckoned as contribution to the parents by a bachelor son. M.A.C.A No.654 of 2008 3 The amount awarded under the head of `loss of dependency', is liable to be reduced on both accounts, contends the learned counsel for the appellant. 4. The learned counsel for the respondents/claimants on the other hand contends that the decision in **Sarla Verma** does not at all provide for reduction of the multiplier by looking at the age of the claimant. The learned counsel argues that in **Sarla Verma** , the Supreme Court has attempted to avoid the possibility of vagaries in the adoption of multiplier by subordinate Tribunals. The counsel argues that, in these circumstances, inasmuch as **Sarla Verma** does not specifically refer to the need to adopt the multiplier depending on any input other than the age of the deceased, the Tribunal cannot be faulted for having reckoned 18 as the multiplier. The counsel further argues that the dictum in **Sarla Verma** cannot lead to a conclusion that rigidly half the income has to be reduced by way of personal expenses. All relevant circumstances have to be taken into account and the relevant circumstances must include the possibility of prospective improvement in the earnings of the deceased, contends the learned counsel for the respondents/claimants. M.A.C.A No.654 of 2008 4 5. The learned counsel for the appellant promptly points out that for a person above 50 years, future prospects should not be taken into reckoning going by the dictum in **Sarla Verma** . In this view of the matter, the learned counsel for the appellant contends that not more than 14 can be adopted as the multiplier and not more than half the income can be reckoned as contribution of the deceased to the claimants. 6. The learned counsel for the respondents/claimants submits that he is entitled to support the impugned award on another ground also. While upholding the order, he is entitled to assail the multiplicand adopted by the Tribunal to ascertain the quantum of compensation payable for loss of dependency. The counsel points out that the deceased was a young man with very bright prospects. Exts.A4 and A5 are relied on to contend that he had completed the Diploma Course in Computer Application and Diploma Course in Computer Science. The counsel relies on Ext.A6 which is the business card of the deceased showing the relevant details including the fact that he was having a land line and a mobile phone connection. 7. All circumstances have to be taken into account. The qualification of the deceased cannot be lost sight of. The fact hat M.A.C.A No.654 of 2008 5 he was running a proprietary concern in his chosen field of specialisation must also be taken into account, contends the learned counsel for the respondents. The learned counsel for the respondents further points out that as early as in 1994 the legislature while introducing the second schedule to the M.V Act had stipulated in column 6 of the schedule that even for a person who was not earning, an amount of Rs.15,000/- per annum can be reckoned as the notional annual income. The passage of time from 1994 to 2002 - about a period of two decades, may be taken into consideration. The superior qualification of the deceased may be taken into account. The fact that he was an enterprising youth who started a business of his own and was doing fairly well in his business going by the indications made available also be taken into account. As the total amount awarded roughly caters to the ends of justice and represents fair, reasonable and just compensation, the amount awarded may not, at any rate, be interfered with, contends the learned counsel. 8. We have considered all relevant inputs. We find no difficulty in agreeing with the learned counsel for the appellant that the multiplier could not, at any rate, have been reckoned at a figure exceeding 14, which is the multiplier applicable to M.A.C.A No.654 of 2008 6 persons aged upto 45 years as per the dictum in **Sarla Verma** . The 2[nd] claimant-mother, we find, is shown to be aged 45 years. 14 can, in these circumstances, be safely reckoned as the highest multiplier that can be employed. 9. So far as the contribution to the claimants is concerned, we find it absolutely safe to accept the contention of the counsel for the appellant that 50% of the income can be set apart for the personal expenses of the deceased who was a bachelor at the time of his death. 10. We are in agreement with the learned counsel for the respondents/claimants that the respondents/claimants are entitled to challenge, even without a separate appeal, the other findings of the Tribunal to support the impugned award passed. In this context we consider their contention that the multiplicand adopted at Rs.2,000/- is too meager and inadequate in the facts and circumstances of this case. 11. What is the proper multiplicand to be employed? It is true that **Sarla Verma** (supra) states that the future prospects cannot be taken into account when the deceased is a person aged above 50 years. But that principle, we must note, cannot mechanically be imported while considering the quantum of M.A.C.A No.654 of 2008 7 compensation payable in respect of a person who has just started life. The deceased was aged 25 years and in every likelihood he was likely to go higher in the ladder of life to earn higher amounts and the parents of the deceased within the period of 14 years (which is the multiplier now reckoned) would certainly have enjoyed the benefits of improvement in prospects of the young deceased during such period. We are in complete agreement with the learned counsel for the respondents/claimants that, at any rate, the income reckoned at Rs.2,000/-, even in the total absence of better evidence, is not justified or sufficient considering the inputs available, about the nature of qualifications of the deceased and the nature of activity which he was pursuing at the time of death. Taking all the relevant circumstances in this case into consideration, we are persuaded to agree that it would be absolutely reasonable to assume that the average contribution of the deceased to the claimants would have been half his earnings and that his earnings during the relevant period can be safely reckoned at Rs.3,500/- per mensem. When so reckoned, the total quantum of compensation payable under the head `loss of dependency' would exceed the amount already awarded. The amount payable would be : M.A.C.A No.654 of 2008 8 ## Rs.3,500 X 12 X ½ X 14 = Rs.2,94,000/-. Only Rs.2,88,000/- has been awarded. We are, in these circumstances, satisfied that though we uphold the contentions of the counsel for the appellant on the question of improper adoption of the multiplier and the improper deduction of amounts for personal expenses, the impugned award does not deserve to be interfered with. The challenge raised against the impugned award cannot, in these circumstances, succeed. 12. This Appeal is, in these circumstances, dismissed. The impugned award is upheld. ## **(R.BASANT, JUDGE)** - **(M.C.HARI RANI, JUDGE)** rtr/-