New India Assurance Co. Ltd. v. Archana Radhakrishnan and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** **MACA NO. 1844 OF 2021** **AGAINST THE JUDGMENT IN OP(MV) 1326/2018 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE** ## **APPELLANT/3rd RESPONDENT:** THE NEW INDIA ASSURANCE CO. LTD., FEROKE BRANCH, DOOR NO.5/86P, 2ND FLOOR, FAIR MONT BUILDING, ERANHIPALAM, WAYANAD ROAD, KOZHIKODE, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE LATHA SUSAN CHERIAN GEORGE A.CHERIAN K.S.SANTHI ## **RESPONDENTS/PETITIONERS:** 1 ARCHANA RADHAKRISHNAN AGED 36 YEARS W/O.RADHAKRISHNAN, RESIDING AT MULAYAMPALLI, 27 MILE, KALLANODE P.O., KOORACHUNDU, KOZHIKODE, PIN- 673 527. 2 NEHA RADHAKRISNNAN, MINOR, AGED 13 YEARS MINOR, D/O.RADHAKRISHNAN, RESIDING AT MULAYAMPALLI, 27 MILE, KALLANODE P.O., KOORACHUNDU, KOZHIKODE, PIN - 673 527, REPRESENTED BY MOTHER 1ST RESPONENT. 3 NADKIKA M.R. AGED 8 YEARS MINOR , D/O.RADHAKRISHNAN, RESIDING AT MULAYAMPALLI, 27 MILE, KALLANODE P.O., KOORACHUNDU, KOZHIKODE, PIN- 673 527, REPRESENTED BY MOTHER 1ST RESPONDENT. 4 KUNJAMMINI AGED 77 YEARS W/O.KUMARAN, RESIDING AT MULAYAMPALLI, 27 MILE, KALLANODE P.O., KOORACHUNDU, KOZHIKODE, PIN- 673 527. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.1844/2021 2 ## **JUDGMENT** ― ― The appellant Insurer was the 3[rd] respondent in O.P(MV) No.1326/2018 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the claimants before the Tribunal. 2. The respondents had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of Radhakrishnan (deceased) – the husband of the 1[st] respondent, the father of the respondents 2 and 3 and the son of the 4[th] respondent. They had averred in the claim petition that, on 28.4.2018 while the deceased was riding a motor cycle bearing Reg.No.KL-13-H-8607 from Thalayad to Kakkayam, a bus bearing Reg.No.KL-56-N8906 (offending vehicle) driven in a rash and negligent manner, hit the motorcycle of the deceased. The deceased succumbed to the injuries on the spot. The deceased was a Civil Police Officer in the City Traffic Police Station, MACA No.1844/2021 3 Kozhikode and drawing a monthly salary of Rs.41,484/-. The respondents were dependents of the deceased and were entitled for compensation from the owner, driver and insurer of the offending vehicle. 3. The owner and driver of the offending vehicle (respondents 1 and 2 before the Tribunal) did not contest the proceedings and were set ex parte. The appellant filed a written statement admitting that the offending vehicle had a valid insurance it was policy. Nonetheless, contended that the respondents were put to strict proof to prove the salary of the deceased; that the compensation claimed was excessive and that the accident occurred due to the negligence of the deceased. Hence it was prayed that the claim petition be dismissed. 4. The respondents examined the Accounts Officer of the office of the City Police Commissioner, Kozhikode as PW1 and Exts.A1 to A5 were marked in evidence. The appellant did not let in any evidence. MACA No.1844/2021 4 5. The Tribunal, by the impugned award, allowed the claim petition, by directing the appellant to pay the respondents an amount of Rs.63,75,400/- with interest and costs. 6. Confronted with the impugned award, the insurer is in appeal. 7. Heard Sri. George Cherian, the learned Senior Counsel appearing for the appellant. 8. Sri.George Cherian argued that the impugned award is erroneous for the reason that the Tribunal ought to have adopted the split multiplier method for fixing the compensation because the deceased was a Government servant; who crossed the age of 46 years and had only ten more years of service. Similarly, he contended that as 30% was awarded as compensation for future prospects, the said amount was also to be added to the gross income of the deceased for the purpose of deducting the income tax at the rate of 20% as per the income tax slab for the assessment year 2018-2019. Therefore, the quantum of MACA No.1844/2021 5 compensation awarded by the Tribunal was on the higher side and the impugned award was to be interfered with. 9. The questions that arise for consideration in the appeal are: (i) Whether the Tribunal ought to have adopted the split multiplier method while fixing the compensation for loss of dependency? (ii) Whether the compensation awarded by the Tribunal is unreasonable and unjust? (iii) Whether the appeal deserves to be admitted? 10. Ext.A6 School leaving certificate proves that the deceased was born on 17.9.1972. The deceased lost his life on 28.4.2018. Hence, the deceased had crossed the age of 46 years on the date of his death. As per the service rules that are in the deceased had vogue, another 10 years of service. 11. The Tribunal following the ratio in **Sarla Verma & Otrs v. Delhi Transport Corporation** [(2009) 6 SCC MACA No.1844/2021 6 121] and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], fixed the multiplier at ‘13’. 12. The learned Senior Counsel argued that the Tribunal ought to have adopted the split multiplier method as laid down by this Court in **Valsa Valsamma v. Oriental Insurance Company Ltd v.** [2015 (1) KLT 781] and **Kumaran & Anr v. Roy Mathew & Ors.** [2017(1) KLT 668]. 13. The Honourable Supreme Court in **K.R.Madhusudhan & Ors v. Administrative Officer & Anr.** [(2011) 4 SCC 689] **and Puttamma & Ors v. K.L.Narayana Reddy & Anr.** [2014 (1) KLT 738] has categorically held that in the absence of any specific reason and evidence on record, the Tribunal or Court should not apply the split multiplier method in a routine manner. 14. It is relevant to state that the appellant had not taken up a contention in the written statement regarding adopting the spilt multiplier method or adduced any MACA No.1844/2021 7 evidence in the case. The main contention was that the respondents were put to strict proof to prove the income of the deceased. The respondents examined the Accounts Officer of the office of the City Police Commissioner, Kozhikode as PW1, who proved Ext.A5 salary slip of the deceased. Based on the uncontroverted evidence on record, the Tribunal followed the ratio in **Sarla Verma and Pranay Sethi** (supra) and fixed the compensation. It is trite; that a new ground cannot be raised for the first time in an appeal. The deceased who was in his prime, would have certainly advanced in his career in the years to come. Thus, for want of pleading and proof, the Tribunal was not expected to follow the spilt multiplier method. Hence I answer Question No.(i) against the appellant by holding that there was no ground compelling the Tribunal to follow the principle of split multiplier. 15. The next contention urged by the learned Senior Counsel was that although the deceased was earning a salary of Rs.4,98,000/- per annum, since the Tribunal MACA No.1844/2021 8 awarded 30% toward future prospects, the said figure had to be added to gross income of the deceased and 20% from such amount had to be deducted as income tax for arriving at the net income. Instead the Tribunal deducted only 5% from the salary of the deceased, which again was erroneous. The said contention is farfetched and preposterous for more reasons than one. Firstly, the appellant did not have such a case before the Tribunal. Secondly, what needs to be looked into is the last drawn gross salary of the deceased for deduction of income tax and fixing the net income which has rightly been done by the Tribunal. Future prospects is awarded to the dependents of the deceased on the net income in light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra). 16. The Tribunal following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) has fixed the net income of the deceased at Rs.41,500/-, adopted the multiplier at 13, awarded 30% future prospects, deducted 1/4th of the MACA No.1844/2021 9 compensation for loss of dependency towards the personal living expenses of the deceased, awarded compensation under the conventional heads and arrived at the compensation figure of Rs.63,75,400/-. I do not find any error or illegality committed by the Tribunal in arriving at the above conclusion. In view of the above exercise, I reject the contention of the learned Senior Counsel and answer Question No.(ii) against the appellant by finding that the Tribunal has awarded reasonable and just compensation. 17. The Hon'ble Supreme Court has in **New Insurance Company Ltd v Kiran Singh & Ors** [2004 (AIR) SCW 4212] deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. It was also observed that if such instances are brought to the notice of the court, the court would be obliged to dismiss such appeals with heavy cost apart from deprecating such parties. In view of the above, MACA No.1844/2021 10 I answer Question No.(iii) also against the appellant and hold that the appeal does not deserve to be admitted. On an appreciation of the impugned award, the materials on record and arguments advanced made by the learned Senior Counsel, I am of the definite opinion that the Tribunal has exercised its powers strictly in consonance with the provisions of the Motor Vehicles Act, 1988 and the law laid down by the Honourable Supreme Court. Admitting the appeal would be wastage of judicial time and a harassment to the respondents. In such circumstances, I dismiss the appeal at the threshold. ma/22.7.2021 **Sd/-C.S.DIAS, JUDGE** **/True copy/**