National Insurance Company Ltd. v. Rasheena 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 TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 MACA.No. 1313 of 2010(b) ----------------------OPMV.1050/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT : 2ND RESPONDENT ---------------------------- NATIONAL INSURANCE COMPANY LTD., DAMODER CHAMBER, STATUE JUNCTION, TRIPUNITHURA, ERNAKULAM REPRESENTED BY MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS : CLAIMANT AND R1 ------------------------------ 1. DR.RASEENA, W/O.NAJEEB, ABDUL VAHAB, MEMANA, PANANGADU POST, ERNAKULAM, PIN-682 506. 2. SAHAL, S/O.LATE NAJEEB ABDUL VAHAB (MINOR) REP. BY THE MOTHER THE FIRST PETITIONER-DO., PIN-682 506. 3. NOUREEN, D/O.LATE NAJEEB, ABDUL VAHAB (MINOR), REP. BY THE MOTHER THE FIRST PETITIONER, DO., PIN-682 506. 4. N.K.AYSHA, W/O.ABDUL VAHAB, RESIDING AT MEMANA, PANANGADU POST, ERNAKULAM, PIN-682 506. ADV. SMT.S.JASMINE FOR RESPONDENTS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/08/2011, ALONG WITH MACA NO. 1898 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A Nos.1313 and 1898 of 2010-B ******************************* Dated this the 9[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. The insurance company as also the claimants have come up in appeal. The claimants claimed compensation for loss suffered by them on account of the death of their husband/father/son in a motor accident which took place on 13.05.2003. The deceased suffered injuries in the accident and succumbed to the same later. He was a post graduate doctor. He had special qualification in anesthesiology also. The Form No.16 return under the Income Tax Act issued by his employer (Ext.B1) showed that his annual income for the immediately preceding year exceeded Rs.1,68,000/- (ie. monthly income of Rs.14,000/-). He was paying income tax of about Rs.10,000/annually. The claimants are his wife, 2 minor children and mother. Against a total claim of Rs.55 lakhs, the Tribunal by the impugned award directed payment of a total amount of Rs.23,89,000/- as per the details that are given in para.9 of the impugned award which we extract below: i) Transportation : Rs. 2,000.00 **M.A.C.A Nos.1313 and 1898 of 2010-B** 2 ii) Damage to clothes : Rs. 500.00 iii) Funeral expenses : Rs. 5,000.00 iv) Pain and suffering : Rs. 7,500.00 v) Loss of estate : Rs.25,000.00 vi) Love and affection : Rs.25,000.00 vii) Loss of consortium : Rs.20,000.00 viii) Loss of dependency : Rs.23,04,000.00 (18,000 X 12 X 16 X 2/3) ------------------------Total : Rs.23,89,000.00 ========== 2. The challenge is raised on the ground of quantum only by both sides. Called upon to explain the challenge and be specific, the learned counsel for the insurance company contends that the Tribunal erred in assuming that 18,000/- can be reckoned as the monthly income to arrive at the compensation by the multiplier-multiplicand method. The learned counsel for the insurance company further submits that 15 and not 16 must have been adopted as the multiplier, going by the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] . The learned counsel for the insurance company finally argues that the amount granted under the head of loss of dependency **M.A.C.A Nos.1313 and 1898 of 2010-B** 3 would fetch an interest income exceeding the monthly loss of income reckoned for ascertainment of loss of dependency. 3. The learned counsel for the claimants also particularly attack the quantum of compensation awarded under the head of loss of dependency. It is submitted relying on a salary certificate issued – Ext.A15, that the monthly income was not Rs.14,000/-, but was Rs.18,745/-. It is further submitted that the deceased had lucrative offers made to him to join the West Fort Hi Tech Hospital Ltd. for a monthly initial salary of Rs.40,000/-. In these circumstances, Rs.18,000/- taken as loss of monthly income is incorrect, contends the learned counsel for the claimants. 4. We have considered all the relevant inputs. We would certainly prefer to go by the income tax certificate issued by the employer to come to a fair and reasonable conclusion about the monthly income. Rs.14,000/- is shown to be the monthly income for the year immediately preceding the date of death. Out of Rs.14,000/-, about Rs.1,000/- goes as tax and cesses. This means that Rs.13,000/- would be the net salary (ie. total minus income tax). Considering the age of the deceased – 35 years, 50% more can be added towards future prospects. So reckoned, monthly income for the purpose of computation of loss of dependency can **M.A.C.A Nos.1313 and 1898 of 2010-B** 4 safely be held to be Rs.19,500/-. 5. 1/3 has been deducted to the personal expenses of the deceased. We find no reason to disagree with that approach made by the Tribunal. The learned counsel for the claimants counts the heads of number of dependents and builds up an argument that ¼ alone should have been deducted for the personal expenses of the deceased. We are unable to agree. Mother was only partly depending on the deceased. Admittedly she has other children. In these circumstances, we are certainly of the opinion that the course adopted by the Tribunal of deducting 1/3 for the personal expenses of the deceased does not warrant interference at all. 6. Now we come to the question of multiplier. **Sarla Verma** (supra) gives the multiplier applicable to various aged groups. The stipulations in a precedent cannot be read and understood as stipulations in a statute. In the table that is given, the learned Judges have sub divided the persons into various age groups. Upto 15 years come in one group, 15-20 years come in the next group, thereafter we will find the groups are identified as 21-25 years, 26-30 years, 31-35 years etc. The deceased in this case was, on the date of his death, 35 years and 2 months of **M.A.C.A Nos.1313 and 1898 of 2010-B** 5 age. He must definitely be held to belong to the fifth age group shown in **Sarla Verma** (supra), ie. persons aged above 30 years upto 35 years. Merely because the group has been described as one of persons aged 31-35 years, we cannot assume that persons who have completed 30 years and have not attained the age of 31 years do not have any particular group and that they do not belong to any of the specified groups. We therefore find it easy to include a deceased person aged above 30 years in the fifth group – of persons belonging to the age group above 30 upto 35 years, which is described in **Sarla Verma** (supra) as the group of persons of age 31-35 years. So reckoned, we agree with the learned counsel for the insurance company that 15 must have been adopted as the multiplier. The Second Schedule to the M.V Act also takes into account persons as belonging to age groups “above a specified age not exceeding a specified age”. In that view of the matter also, the table in **Sarla Verma** (supra) has to be so understood by this Court. 7. The learned counsel for the claimants contends that the multiplier specified in the Second Schedule to the Motor Vehicles Act is 16 for persons of the age group 35-40 years. But the multiplier is for computation of compensation for permanent **M.A.C.A Nos.1313 and 1898 of 2010-B** 6 disablement and not for computation for compensation for death. In **Sarla Verma** (supra), the Supreme Court had considered all the relevant aspects including the different multipliers given in the Second Schedule for permanent disablement and death. In the case of death, the multiplier adopted is 15, which is indicated in **Sarla Verma** (supra) itself. We therefore come to the conclusion that 15 should have been adopted as the multiplier and not 16. So considered, we are of the opinion that the claimants are entitled to an amount of Rs.23,40,000/- [19,500 X 12 X 2/3 X 15] as compensation for loss of dependency. 8. There is a contention that the amounts awarded under the other heads are too low. We are unable to agree. We are satisfied that reasonable, fair and just amounts have been awarded by the Tribunal on all other heads. 9. The above discussions lead us to the conclusion that the appeal filed by the insurance company merits dismissal; whereas the appeal preferred by the claimants can be allowed in part. ## 10. In the result: A) M.A.C.A No.1313 of 2010 filed by the insurance company is dismissed; **M.A.C.A Nos.1313 and 1898 of 2010-B** 7 B) i) M.A.C.A No.1898 of 2010 filed by the appellants is allowed in part; ii) The appellants are found entitled to a further amount of Rs.36,000/- (Rupees Thirty six thousand only) [Rs.23,40,000/minus Rs.23,04,000/-] as compensation in addition to the amounts awarded by the Tribunal; iii) We direct that interest be paid on the entire amount of compensation at the rate and for the period as directed by the Tribunal; iv) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/