National Insurance Company Limited v. Geetha.K & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 21ST DAY OF DECEMBER 2017 / 30TH AGRAHAYANA, 1939** **MACA.No. 412 of 2017** ## **APPELLANT/3RD RESPONDENT** **NATIONAL INSURANCE COMPANY LIMITED PAYYANNUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI - 35.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/PETITIONERS AND 4TH RESPONDENT:** ## **1. GEETHA.K** **W/O. LATE VIJAYAKUMAR K.V. D-1, LOCAL POLICE QUARTERS, TALAP, KANNUR DISTRICT PIN - 670001.** **2. MALAVIKA V, D/O. LATE VIJAYAKUMAR K.V. D-1, LOCAL POLICE QUARTERS, TALAP, KANNUR DISTRICT PIN - 670001.** ## **3. VINAYAK V (MINOR),** - **S/O. LATE VIJAYAKUMAR K.V. D-1, LOCAL POLICE QUARTERS, TALAP, KANNUR DISTRICT PIN - 670001. REPRESENTED BY HIS MOTHER 1ST RESPONDENT.** ## **4. VIJAYAMMA T.R,** - **W/O. LATE VASUDEVAN NAIR, KUNNATH HOUSE, ERIAM P.O, ALAKKAD, MM BAZAR, KANNUR DISTRICT - 670001.** **MACA.No. 412 of 2017** **-2-** **R1-R3 BY ADV. SRI.P.U.SHAILAJAN R1-R3 BY ADV. SRI.M.SURESH KUMAR R1-R3 BY ADV. SMT.D.N.NISHANI R1-R3 BY ADV. SRI.V.SREEJITH (K/1398/2000) R4 BY ADV. SRI.SANTHOSH MATHEW R4 BY ADV. SRI.ARUN THOMAS R4 BY ADV. SRI.JENNIS STEPHEN R4 BY ADV. SRI.ALPHIN ANTONY R4 BY ADV. SRI.VIJAY V. PAUL R4 BY ADV. SMT.MARIA ROY R4 BY ADV. SMT.VEENA RAVEENDRAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & SHIRCY V.,JJ. ------------------------------------------------------** ## **M.A.C.A.No.412 of 2017** ## **-----------------------------------------------------Dated this the 21[st] day of December, 2017** ## **JUDGMENT** ## **C.K.Abdul Rehim,J.** The 3[rd] respondent-Insurance Company in O.P(MV)No.344/2016 on the files of the Motor Accidents Claims Tribunal, Thaliparamba is the appellant herein, challenging the award mainly disputing their liability to pay the amount of compensation determined and also challenging the quantum of compensation determined, as excessive. 2. The accident occurred on 19.6.2012. The deceased in this case, who was working as a Head Constable in the Police Department of the State Government, succumbed to the injuries sustained in the accident. He was travelling in a mini tipper lorry carrying sand for the construction of his house. When the vehicle reached at the spot of the accident, the branch of a tree fell down on the vehicle causing grievous head injuries to the person died. He succumbed while undergoing treatment in the hospital on the next day. Wife and two children of the deceased were the M.A.C.A.No.412 of 2017 2 claimants before the Tribunal. The 4[th] respondent before the Tribunal is the mother of the deceased. The claim was resisted by the appellant herein, inter alia contending that the accident occurred not due to any negligence on the part of the driver of the vehicle or due to any negligent use of the vehicle by its owner, who is the insured. Therefore they denied liability to indemnify the insured to pay any compensation to the claimant. It was also contended that the appellant had no liability to indemnify the owner of the vehicle because the deceased was only a gratuitous passenger travelled in the tipper lorry at the time of the accident. It was denied that the vehicle was not carrying the goods owned by him. 3. The Tribunal while adjudicating the dispute had repelled the above said contentions by holding that the accident in question had arisen out of the use of the motor vehicle. It was further found that, the person died was accompanying the goods and therefore he is covered by the policy in question, as per the mandate of Section 147 of the MV Act. Hence, it is found that the appellant is liable to indemnify the owner with respect to the claim raised on account of death of the person concerned. 4. Even though the appellant had raised a ground M.A.C.A.No.412 of 2017 3 disputing the liability, Sri. Mathews Jacob, learned Senior Counsel appearing for the appellant, had fairly conceded that in view of the legal precedents cited by the Tribunal in the impugned award, the position remains against the appellant. It is fairly conceded that since the police records would reveal that the deceased was travelling in the vehicle in the capacity as owner of the goods and that he was seated within the cabin itself, the liability fetched on by virtue of provisions of the Act cannot be denied. This is especially because, going by the legal precedents, it cannot be disputed that the accident in question is one arising out of the use of the motor cycle. 5. Another contention raised is regarding justifiablity of the quantum of compensation awarded by the Tribunal. The Tribunal found that the deceased was a Senior Civil Police Officer in service at the age of 45 years. The Tribunal had adopted the multiplier of 14 for computing the loss of dependency. The multiplicand was fixed by adding 30% towards future prospects, to the existing salary of the person died, after deducting 1/4[th] towards personal expenses. Learned Senior Counsel contended that, the 4[th] respondent before the Tribunal, who was the mother of the deceased, was residing separately M.A.C.A.No.412 of 2017 4 and she had not joined among the claimants before the Tribunal. Therefore, it is evident that she was not dependent on the deceased. As a consequence, it is contended that, the Tribunal ought to have deducted 1/3[rd] towards personal expenses, the total dependants being only three in number. It is further contended that the Tribunal had failed in considering deductions towards income tax, considering deductions towards income tax out of the salary derived by the deceased. Yet another contention raised is that the Tribunal had failed to consider the superannuation of the deceased, had he been alive and the reduction which may be causing in the earnings for the period of post retirement. 6. While evaluating the above said contentions, we take note of the fact that, the mother of the deceased, even though cited as a respondent, was found eligible to get compensation. She is also a legal heir of the deceased. Therefore, it cannot be accepted that she is not a dependant on the deceased. Having found so, the total number of dependants is 4 in the case at hand. Going by the dictum contained in **Sarala Varma vs. Delhi Transport Corporation [(2010 (2)KLT 802(SC)]** the amount M.A.C.A.No.412 of 2017 5 to be deducted towards personal expenses is 1/4[th] . Hence we are not inclined to intefere with the award on the basis of the extent the deduction made towards personal expenses. 7. It is true that the multiplier to be adopted is 14, considering the age of the deceased. But as contended, there is a certainty regarding superannuation of the deceased, had he been alive, at the age of 56 years. Therefore, he will be deriving the salary only for a period of 11 years. In the decision of the Honorable Supreme Court in **Madhusoodhanan v. Administrative Officer and others [2011 (1)KLT SN. 98 (SC)] and in the case of Puttamma v. Narayana Reddy [2014 (12) KLT 738 (SC)]** , it is held that, in the absence of any specific reasons and availability of evidence on record, split multiplier should not be adopted in a routine course and the multiplier as specified in **Sarala Varma** 's case supra, which stands affirmed in subsequent cases, shall be adopted. In a decision rendered by us in **Kumaran vs. Roy Mathew (2017 (1) KLT 668)** , we had occasion to consider the issue. It is held that, when there is a specific reason for adopting different multiplicands based on evidence available on well founded M.A.C.A.No.412 of 2017 6 reasons, the split multiplier method can be adopted. In the case at hand, it is a certainty that the deceased would have attained superannuation, had he been alive at the age of 56 years. Therefore there is a specific reason available on record which would defenitely enable the court to adopt split multiplier method, for fixing different multiplicands for the period of preretirement and post retirement, separately. We are of the opinion that, the multiplicand adopted for computing loss of dependency for the first period of 11 years, need to be reduced by 50% with respect to the remaining three years. We are also of the opinion that a reduction of 10% towards liability of income tax is fully justified. Calculated on that basis, the amount of compensation awarded under the head of loss of dependency need to be refixed. For the period of 11 years, the amount which can be awarded is refixed as Rs.30,17,835/- (26054+30%10%x12x11x3/4). With respect to the remaining period of 3 years, the amount is fixed at Rs.4,57,248/(26054+30%x1/2x12x3x3/4). Thus the total compensation allowable under the head of loss of dependency is refixed at Rs.34,75,083/-. Hence, there will be a reduction of Rs.7,92,537/on that count. M.A.C.A.No.412 of 2017 7 8. Learned Senior Counsel for the appellant had pointed out that, going by the guidelines stipulated in the decision of the Constitutional Bench of the Honorable Supreme Court in **National Insurance Co.Ltd. vs. Pranay Sethi and others (2017(4) KLT 662),** the amounts awarded under the head of funeral expenses, loss of estate and loss of consortium are on the higher side. Going by the dictum contained in the above said decision, we are inclined to accept the contention and to reduce the amounts awarded under the heads of funeral expenses and loss of estate by a sum of Rs.10,000/- each. So also the loss of consortium awarded at the rate of Rs.1 lakh need to be reduced to Rs.40,000/-, whereby a reduction of Rs.60,000/- need to be effected. Thus we hold that a total compensation awarded need to be reduced by a sum of Rs.8,72,537/-. Hence, we refix total amount of compensation for which the respondents/claimants are entitled at Rs.37,80,683/-. 9. In the result, the above appeal is allowed in part. The impugned award is modified to the extent of refixing the total compensation for which the respondents are entitled at Rs.37,80,683/-. The said amount will carry interest at the same M.A.C.A.No.412 of 2017 8 rate as awarded by the Tribunal, from the date of the claim petition, till realisation, along with proportionate cost. The amount awarded shall be apportioned among the respondents herein (claimants 1 to 3 and 4[th] respondent before the Tribunal) at the same ratio as ordered by the Tribunal. The appellant insurance company shall make deposit of the amount, less the amount if any already paid, before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the respondents herein will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. It is made clear that the Tribunal will be at liberty to consider permitting withdrawal of any portion of the compensation deposited in favour of the minors, on convincing with justifiable reasons on that count. ## **C.K.ABDUL REHIM JUDGE** **SHIRCY.V JUDGE** smm