National Insurance Company Limited v. Prasanna Kumari and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** ## **MACA.NO. 2329 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.1586/2013 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, KOTTAYAM DATED 25-04-2015** ## **APPELLANT/3RD RESPONDENT :** **NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM, NOW REPRESENTED BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS :** - **1 PRASANNA KUMARI, W/O.LATE RAJENDRAN, KURUVANPLACKAL HOUSE, MUNDAKKAYAM P.O., KOTTAYAM DISTRICT, PIN-686 320.** - **2 SREERAJ, S/O.LATE RAJENDRAN, KURUVANPLACKAL HOUSE, MUNDAKKAYAM P.O., KOTTAYAM DISTRICT, PIN-686 320.** - **3 KAVITHA RAJENDRAN, D/O.LATE RAJENDRAN, KURUVANPLACKAL HOUSE, MUNDAKKAYAM P.O., KOTTAYAM DISTRICT-686 320.** - **4 DAMODHARAN K.M., KURUVANPLACKAL HOUSE, MUNDAKKAYAM P.O., KOTTAYAM DISTRICT, PIN-686 320** - **5 KARTHIYANI, KURUVANPLACKAL HOUSE, MUNDAKKAYAM P.O., KOTTAYAM DISTRICT-686 320. (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 AND 2 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL) BY ADV. SRI.K.P.SUJESH KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2329 OF 2015** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P.(M.V.) No.1586 of 2013 of the Additional Motor Accidents Claims Tribunal-II, Kottayam by the insurer. One Rajendran died in a motor accident on 16.08.2013. His legal representatives preferred the above claim petition and the learned Tribunal awarded Rs.57,95,878/- (Rupees Fifty Seven Lakh Ninety Five Thousand Eight Hundred and Seventy Eight only) with 8.5% interest and proportionate cost. Being aggrieved by that, the insurer preferred this appeal. 2. Claimants case in the lower court was that on 16.08.2013 at 10.00 p.m., while the deceased Rajendran was walking by the side of Alappuzha-Changanassery public road and when he reached in front of Salim Automobiles at Perunna, a scooter KL-33/B-9160 driven in a rash and negligent manner hit against the deceased, as a result he sustained serious injuries, while undergoing treatment at Matha Hospital, Thellakom, Kottayam, he succumbed to the injuries on 17.08.2013. The accident was due to the rash and negligent **MACA.NO. 2329 OF 2015 3** driving by its rider. The driver and owner were ex parte in the lower court. The insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A6. The provisional Pay Slip of Rajendran was marked as Ext.B1. 3. Learned counsel appearing for the appellant contended that the deceased was aged 53 years at the time of accident and he was working as Branch Manager, State Bank of Travancore. He has only 7 years of remaining service and the multiplier of 11 was taken by the Tribunal, which is very high. Therefore, split multiplier as settled by the Apex Court in **Puttamma** v. **Narayana Reddy [2014 (1) KLT 738 (SC)]** has to be followed and the multiplier taken by the Tribunal as per the direction issued in **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104)** is illegal. Moreover, the amounts awarded towards Loss of consortium and Funeral expenses have to be reduced. 4. Learned counsel appearing for the claimants contended that in the absence of any specific reasons and evidence on record, the court cannot apply split multiplier in this case. **MACA.NO. 2329 OF 2015** **4** Respondents did not adduce any evidence to deviate from the normal rule of multiplier method. ## 5. Apex Court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** held as follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- - (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of **MACA.NO. 2329 OF 2015** **5** computation. The established income means the income minus the tax component. - (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. - (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. - (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 6. In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the death. But the assessment of damages to the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables. The life expectancy of the deceased and the dependents are the major factors. Secondly, the amount that the deceased would have earned during the remaining period of his life, the amount that he would have contributed to the dependents during that period is also relevant. The chances **MACA.NO. 2329 OF 2015** **6** that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the Tribunal. 7. The principle of taking split multiplier has been discussed by the Apex Court in **Puttamma** v. **Narayana Reddy [2014 (1) KLT 738 (SC)]** in which paragraphs 32,33 and 34 read as follows: _32. For determination of compensation in motor accident claims under S.166 this Court always followed multiplier method. As there were inconsistencies in selection of multiplier, this Court in Sarla Verma prepared a table for selection of multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of split multiplier._ _33. In K.R. Madhusudhan & Ors. v. Administrative Officer & Anr. (2011 (1) KLT SN 98 (C.No.136) SC = (2011) 4 SCC 689), this Court held as follows:_ _“14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55_ **MACA.NO. 2329 OF 2015** **7** _years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6._ _15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method.”_ _34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma (supra) as affirmed in the case of Reshma Kumari (supra)._ 8. The ratio settled by the Apex Court in **Puttamma** v. **Narayana Reddy [2014 (1) KLT 738 (SC)]** is that the victims in a motor accident case or the legal heirs in a motor accident case is entitled to get just amount as compensation while awarding compensation under Sec.166 of the Motor Vehicles Act, 1988. The apex court reminded all Courts not to apply split multiplier in routine course in the absence of any reason and follow the multiplier method as stated in **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104).** If the Tribunal is taking split multiplier or deviating **MACA.NO. 2329 OF 2015 8** from multiplier method, specific reasons have to be recorded in the selection of multiplier and evidence should be recorded by the Tribunal or Court in that behalf. Even though the appellant insurer highlighted the decision in **Puttamma** v. **Narayana Reddy [2014 (1) KLT 738 (SC)],** no evidence or reasons are stated for deviating from the multiplier method. In the absence of any evidence, this Court cannot deviate from the multiplier method and the right multiplier of 11 was taken by the Tribunal in this case. 9. In the light of the above argument, I have perused Ext.A5 Provisional Salary Certificate submitted by the claimants and Ext.B1 another Salary Slip. The Tribunal took Rs.61,078.25/- as his monthly income. After deducting the income tax of Rs.4,951/-, the monthly income was taken as Rs.56,127.25/-. Ext.B1 is the salary slip for the month of July, 2013. By virtue of Ext.A5, the pay slip was issued for the month of August. There is increase in DA in the month of August but that was not considered by the Tribunal. In view of **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** the claimants are entitled to get 15% increase **MACA.NO. 2329 OF 2015** **9** in the income towards future prospects, if the deceased was between the age of 50 to 60 years. In the circumstance, the award of the Additional Motor Accidents Claims Tribunal-II, Kottayam is set aside and the matter is remitted to the Tribunal for fresh consideration. Both parties are directed to appear before the Tribunal on 17.12.2018 and they are at liberty to adduce both oral and documentary evidence before the Tribunal. The Tribunal shall dispose of the matter within three months from the date of their appearance. The amount, if any, deposited by the insurer and disbursed by the Tribunal shall be adjusted towards the final award amount. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge