National Insurance Co. Ltd. v. V.K. KuriaKose Vadamattathil and others (MACA No.1676 of 2012)

## **C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935 MACA.No. 1676 of 2012 () ------------------------- OPMV 1727/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOTTAYAM APPELLANT/2ND RESPONDENT : ---------------------------------- NATIONAL INSURANCE CO. LTD., KOTTAYAM, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, KOCHI-682 035. BY ADV. SRI.E.M.JOSEPH RESPONDENTS/CLAIMANTS & 1ST RESPONDENT : ------------------------------------------------------ 1. V.K. KURIAKOSE VADAMATTATHIL HOUSE, (FROM PAZHUVATHRA) MUTTAMBALAM P.O., KOTTAYAM - 686 004. 2. ESSY KURUVILA @ MRS.ESSY KURIAKOSE VADAMATTATHIL HOUSE, (FROM PAZHUVATHRA) MUTTAMBALAM P.O., KOTTAYAM - 686 004. 3. RITHU KURIAKOSE VADAMATTATHIL HOUSE, (FROM PAZHUVATHRA) MUTTAMBALAM P.O., KOTTAYAM - 686 004. 4. UNNIKRISHNAN THURUTHUPALLIL, KODIMATHA, NEAR PALLIPPURATHUKAVU KOTTAYAM - 686 001. BY SRI.T.C.SURESH MENON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-08-2013, THE COURT ON 21-08-2013 DELIVERED THE FOLLOWING: C.R. ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.A.C.A. No.1676 of 2012 ----------------------------------------------Dated 21[st] August, 2013. J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the second respondent/Insurance Company in O.P.(MV) No.1727 of 2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. 2. The case of the petitioners in the O.P.(MV) is briefly as follows : The first petitioner is the father aged 56 years, second petitioner is the mother aged 48 years and the third petitioner is the sister aged 21 years of deceased Rejo Kuriakose, who died in a motor accident which took place on 8.10.2007. On 8.10.2007 at 9 a.m. the deceased was riding the motorcycle bearing registration No.KL-5/N 3985 along NH-220 (K.K.Road) from east to west in a moderate speed with due care and caution and when he reached at Kanjikuzhy, the lorry bearing registration No.KEK 789 driven by the first respondent along the said road from west to east in a rash and negligent manner and in excessive speed, hit on the motorcycle and the rider Rejo Kuriakose fell down from the motorcycle and he 2 M.A.C.A. No.1676 of 2012 sustained grievous injuries. The injured was immediately taken to the Medical College Hospital, Kottayam, but he succumbed to the injuries on the way to the hospital. The accident was due to the rash and negligent driving of the lorry by the first respondent, who was the owner-cum-driver. The second respondent was the insurer of the lorry. The petitioners claimed `20,00,000/- as compensation. 3. The first respondent did not file any written statement. The second respondent filed written statement admitting the policy of the lorry and contended that the accident was not due to the negligence of the first respondent and that the compensation claimed is excessive. 4. Before the Tribunal, PW1 was examined and Exts.A1 to A24 were marked. No evidence was adduced from the side of the respondents. The Tribunal, on considering the evidence on record, found that the accident was due to the rash and negligent driving of the first respondent and awarded a compensation of `17,27,188/- to the petitioners together with interest at the rate of 7.5% per annum from 27.11.2007 till the 3 M.A.C.A. No.1676 of 2012 date of realization from the respondents and the second respondent was directed to deposit the amount as the insurer. Against the said award, the second respondent/Insurance Company filed this appeal. 5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for respondents 1 to 3. 6. The learned counsel for the appellant submitted that the Tribunal erred in applying the multiplier of '17' considering the age of the deceased, who was a bachelor at the time of accident. The learned counsel for the appellant submitted that the Tribunal ought to have fixed the multiplier either at '13' or at '9', considering the age of the parents. The learned counsel for the appellant further submitted that the Tribunal erred in not following the principles laid down by the Supreme Court in National Insurance Co. Ltd. v. Shyam Singh and Ors. (2011 ACJ 1990). The learned counsel for respondents 1 to 3 supported the award. 7. The Tribunal awarded compensation under 4 M.A.C.A. No.1676 of 2012 ## various heads as follows : |**_Sl_**<br>**_No_**|**_Head of claim_**|**_Amount_**<br>**_claimed_**<br>**_(Rs)_**|**_Amount_**<br>**_awarded_**<br>**_(Rs)_**|**_Basis vital details_**<br>**_in a nut shell_**| |---|---|---|---|---| |1|Transportation||3000|in view of the<br>transportation<br>charges| |2|Funeral expenses|10000|6000|Nominal amount| |3|Damage to clothings||1000|-do-| |4|Loss of dependency|2340000|1672188|196728 - 98364 x<br>17 = 1672188| |5|Pain and sufferings|20000|15000|in view of the pain<br>suffered by the<br>victim before his<br>death| |6|Loss of love and affection|25000|15000|The<br>petitioners<br>have lost the love<br>and affection of the<br>victim| |7|Loss of estate|5000|5000|Nominal amount| ||Total|2400000<br>Limited to<br>2000000|1727188|| 8. According to the petitioners, the deceased was a bachelor aged 26 years at the time of accident and he was employed as a Waiter in Marbella Resort at Sharja, U.A.E. The second petitioner was examined as PW1. PW1 deposed that M.A.C.A. No.1676 of 2012 5 the deceased was working as a Waiter in Marbella Resort in U.A.E. and he was sending `15,000/- per month to them towards their family expenses. Ext.A13 is the certificate issued by the General Manager of Marbella Resort, in which it is stated that the deceased was getting a monthly income of 1,400 Dirhams and the Company was also providing him free accommodation, food and laundry. He was working at the Marbella Resort from 21.11.2005 onwards as a Waiter in Food and Beverage Service department. The deceased was receiving a basic salary of Dh 1100 + miscellaneous allowance of Dhs. 300/- (total amount of 1400 Dirhams). PW1 had stated that the present exchange rate is at `11.71. 9. In the decision reported in Fathima v. Sulaikabi (2007(3) KLT 262) it was held that in accident claims, the exchange rate as on the date of judgment should be taken into account for victims employed abroad. The Tribunal found that the exchange rate at the time of award was `11.71. The Tribunal found that the deceased was getting a monthly salary of `16,394/- (1400 x 11.71) and assessed his annual income as 6 M.A.C.A. No.1676 of 2012 `1,96,728/-. 10. The learned counsel for the appellant invited our attention to the decision reported in Reshma Kumari and others v. Madan Mohan and another (2009(13 SCC 422) and relying on paragraph 18 of the judgment, it was argued that the deceased had no stable income as he had no permanent job in U.A.E. The said argument cannot be accepted, in view of the fact that the deceased was employed there from 21.11.2005 onwards and there is no contra evidence to show that his employment was a temporary one. In the decision reported in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)] it was held that where the deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses of the deceased. In that decision, it was further held that where the deceased is married, deduction towards personal and living expenses of the deceased should be 1/3 where the number of dependant family members is 2 to 3, ¼, where the number of dependant family members is 4 to 6 and 1/5, where the number of dependent family members exceeds 6. Regarding selection M.A.C.A. No.1676 of 2012 7 of multiplier in respect of different age groups, it was held thus : “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.” In that decision, it is not stated that in case of death of a bachelor, the multiplier to be applied is based on the average age of the parents. 11. In the decision reported in **National Insurance** **Company v. Shyam Singh and others** [2011 ACJ 1990 (S.C.)], the deceased was a 19 year old bachelor and claimants were the parents of deceased, who were aged 56 and 55 years and the Tribunal adopted the multiplier of '9'. The appellate court adopted the multiplier of '18'. The Supreme Court 8 M.A.C.A. No.1676 of 2012 observed that the Tribunal had rightly applied the multiplier by taking the average age of the parents. In the decision reported in **P.S. Somanathan and Ors. v. District Insurance Officer and another** [2011 ACJ 737(S.C.)] it was held that for the purpose of calculating the multiplier the law as has been laid correctly in the case of **Sarla Varma (supra)** , in a very well considered judgment, is to be followed and held that in case of the deceased being a bachelor, the multiplier has to be computed on the basis of the age of the deceased. In the recent decision reported in **Amrit Bhanu Shali and Others v. National Insurance Co.Ltd & Others** (CDJ 2012 SC 453), it was held in paragraphs 16 to 18 as follows : “16. Admittedly both the parents, 1st appellant – Amrit Bhanu Shali (father) and 2nd appellant – Smt.Sarlaben (mother) been held to be dependents of deceased – Ritesh Bhanu Shali and, therefore, the Tribunal held that the 1st appellant and 2nd appellant have the right to get the compensation. On the date of the accident the 3rd appellant – Mamta was not married but by the time the case was heard by the Tribunal and 3rd appellant – Mamta had already been married. In these circumstances, she is not found to be dependent upon the deceased. Thus, both the parents being 9 M.A.C.A. No.1676 of 2012 dependents, i.e., father and the mother, the Tribunal rightly restricted the 'personal and living expenses' of the deceased to 50% and contribution to the family was required to be taken 50% as per the decision of this Court in the cases of **Sarla Verma** (supra) 17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation. 18. In the case of **Sarla Verma** (supra) this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13.” The above mentioned judgments were rendered by different two Judge Benches of the Supreme Court on different dates. A three Judges Bench of the Supreme Court in the decision reported in **Reshma Kumari v. Madan Mohan** [2013 (2) KLT 10 M.A.C.A. No.1676 of 2012 304 (SC)] (decided on 2.4.2013) held that the standards fixed by the Supreme Court in **Sarla Verma** [2010(2) KLT 802 (SC)] on the aspect of deduction for personal living expenses in paragraphs 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding para is made out. 12. Paragraphs 30 to 32 of the decision reported in Sarla Verma v. Delhi Transport Corporation (supra) reads as follows : “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 onethird (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant 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 11 M.A.C.A. No.1676 of 2012 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 dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant 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 family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning 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.” 13. In the decision reported in **Reshma Kumari v.** **Madan Mohan** (supra), it was further held that in the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 12 M.A.C.A. No.1676 of 2012 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in **Sarla Verma** [2010 (2) KLT 802 (SC)] read with para 42 of that judgment. That means, the multiplier to be adopted is based on the age of the deceased and not based on the age of the dependants. 14. The multiplier, as indicated in Column (4) of the table prepared in Sarla Verma is '17' where the age group of the deceased is 26 to 30 years. In the decision reported in **Pyare Mohan Lal v. State of Jharkhand and others** [AIR 2010 S.C. 3753], it was held that in case there is a conflict between two or more judgments of the Supreme Court, the judgment of the larger bench is to be followed. Since the decision reported in **Reshma Kumari v. Madan Mohan** [2013 (2) KLT 304 (SC)] is by a three Judges Bench, we are bound to follow that decision in preference to two Judges Bench decision. 15. In the present case, the Claims Tribunal deducted 50% of the income of the deceased towards personal expenses, as he was a bachelor and '17' was taken as the 13 M.A.C.A. No.1676 of 2012 multiplier, as the deceased was aged 26 years. Therefore, we are of the view that the Claims Tribunal awarded only just and reasonable compensation in accordance with the principles laid down in the decision reported in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. The principles laid down in Sarla Verma v. Delhi Transport Corporation (supra) were approved by the three Judges Bench decision reported in **Reshma Kumari v. Madan Mohan** [2013 (2) KLT 304 (SC)]. Accordingly, this appeal is dismissed as it is without any merits. There is no order as to costs. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)