Oriental Insurance Company Ltd. v. Asya w/o Abdurasheed and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940** **AGAINST THE AWARD IN OPMV 738/2013 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR DATED 29-04-2015** ## **APPELLANT(S)/2ND RESPONDENT** **THE ORIENTAL INSURANCE CO. LTD. MANJERI, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.** **BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI** **SMT.LATHA SUSAN CHERIAN** ## **RESPONDENT(S)/CLAIMANTS:** **1. ASYA W/O.(L) ABDURASHEED, POOVATHI, 58 THETTATH-3, AYANIKKODE, POORUR PANCHAYATH - 679 339.** ## **2. SAFEERA,** **D/O.(L) ABDURASHEED, POOVATHI, 58 THETTATH-3, AYANIKKODE, POORUR PANCHAYATH - 679 339.** ## **3. MOHAMMED BANNA,** **S/O.(L) ABDURASHEED, POOVATHI, 58 THETTATH-3, AYANIKKODE, POORUR PANCHAYATH - 679 339.** ## **4. FATHIMA HANNA,** **D/O.(L) ABDURASHEED, POOVATHI, 58 THETTATH-3, AYANIKKODE, POORUR PANCHAYATH - 679 339.** **MACA.No. 2287 of 2015** **5. HASANUL BANNA (MINOR) (10-5-2012) REPRESENTED BY GUARDIAN/MOTHER, ASYA, POOVATHI, 58 THETTATH-3, AYANIKKODE, POORUR PANCHAYATH - 679 339.** **R1 TO R4 BY ADVS. SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SMT.UMA SRI.K.NANDAKUMAR SMT.P.M.MAZNA MANSOOR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** **MACA.No. 2287 of 2015** ## **APPENDIX** ## **APPELLANT(S)ANNEXURES:** **ANX A1 A TRUE COPY OF THE CERTIFICATE DATED 23.03.2016 ISSUED BY THE DEPUTY GENERAL MANAGER, MALAPPURAM DISTRICT COOPERATIVE BANK LTD., MALAPPURAM.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** **// TRUE COPY //** **P.A. TO JUDGE** **DSV/-** **K. VINOD CHANDRAN, J. --------------------------------------------M.A.C.A. No.2287 of 2015 [A] --------------------------------------------Dated this the 25[th] day of July, 2018** ## **J U D G M E N T** The appellant-Insurance Company, is concerned with the compensation granted for the death of a Professor in an accident. The appeal is only against the quantum as fixed by the Tribunal, which was at Rs.73,29,400/-. There is no dispute as to the liability of the Insurance Company nor the negligence of the other vehicle, which hit the subject who was trying to enter into his car thus fatally injuring him. The subject succumbed to his injuries on the very same day at the Hospital. 2. The learned Senior Counsel appearing for the Insurance Company would seriously challenge the compensation awarded under loss of dependency, loss of consortium, loss of love and affection, as also the Medical by-stander and funeral expenses. In fact, there is no medical bill submitted nor was there any requirement for a by-stander. Funeral expenses has also been granted at Rs.25,000/-, which is far more than that permitted in the **2** **M.A.C.A. No.2287/15 [A]** decision of **National Insurance Company Ltd. v. Pranay Sethi and Others [2017(5) KHC 350].** The compensation for funeral expenses can only be Rs.15,000/- and the compensation under that head would stand reduced. There is no requirement for a Medical bystander, since the injured died on the spot and the compensation of Rs.10,000/- under Medical by-stander and funeral expenses would be deleted. Compensation for loss of consortium, again going by **Pranay Sethi,** has to be reduced to Rs.40,000/-. Though serious contentions are raised as against the compensation for loss of love and affection, this Court is of the opinion that, the same can be sustained especially looking at the fact that the deceased had 4 children, the youngest of whom was a minor child. However, this Court is not inclined to sustain the entire compensation so granted and the same shall stand reduced to Rs.1,00,000/-. 3. Looking at loss of dependency, the claimants were granted compensation at Rs.69,78,400/-. The salary as proved by evidence was Rs.88,125/- per month, which **M.A.C.A. No.2287/15 [A]** **3** the deceased earned as a Professor in an Aided College. The Tribunal reduced 10% for Income Tax and 1/3 for personal expenses and the balance was multiplied with the multiplier '11' for 12 months and the compensation arrived at. The learned Senior Counsel contends that the admitted salary would take the total remuneration per annum above Rs.10,00,000/- and the Income tax deduction to be applied was at 20%. It is also contended that there could be no multiplier applied at '11' on the salary as evidenced by the claimants since the deceased was on the verge of retirement. The deceased had only less than 3 years for retirement, which, in Aided Colleges in the State, is 56. Hence, there should have been a split multiplier applied, is the contention. It is also submitted that when the split multiplier is applied, the pension, which would have been earned by the wife, as family pension, had to be reckoned. Advancing the contention with respect to Income Tax Deduction, the learned Senior Counsel relies on **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121].** As for the split **M.A.C.A. No.2287/15 [A]** **4** multiplier to be applied, the learned Senior Counsel relies on **Puttamma v. Narayana Reddy [2014 (1) KLT 738 (SC)]** and **Oriental Insurance Company Ltd. v. Valsa [2015 (1) KLT 781]** , the latter, a decision of the Division Bench of this Court. 4. The learned counsel appearing for the respondents/claimants would, however, argue that the 20% Income tax deduction would be applicable only to that portion above the limit of Rs.5,00,000/-. After applying the deductions, which the deceased if alive would have claimed, there could be no deduction for Income Tax. Further, it is argued that the Tribunal has reduced 1/3[rd] for personal expenses, which in the present case, considering the fact that, the family comprises of 5 persons can be reduced only to the extent of ¼[th] as has been laid down in **Sarla Verma's case** . It is also contended that the deceased being an Academician could have got future employment after retirement, the prospects of which can also be not discounted. 5. This Court being called upon to consider the just **5** ## **M.A.C.A. No.2287/15 [A]** compensation that would be payable to the claimants/heirs of a person who died in an accident, necessarily this court is not confined to the appeal as filed by the Insurance Company. In making reductions, this Court has also to look into where the Tribunal had misled itself in computing the compensation thus reducing the total component payable to the legal heirs of a deceased, thus depriving them of just compensation. Without an appeal by the claimants, this Court cannot grant compensation more than that granted by the Tribunal. However, adjustments can be made and when reduction is effected under a head, enhancement could also be made under another, keeping the total compensation within the quantum as awarded by the Tribunal. 6. This Court is inclined to accept the version of the Insurance Company that 20% deduction has to be applied, but only to yearly income over Rs.5,00,000/-. The slab system, under which income tax is levied, leaves income of 2.5 lakhs of any person without any tax being levied and, then provides for deductions upto 1.5.lakhs. **M.A.C.A. No.2287/15 [A]** **6** The rate applied is only 5% upto Rs.3 lakhs and only above that limit would the rate of 10% be applicable upto Rs.5 lakhs, as available in 2015. Considering the fact that the Tribunal has applied 10% across the board, this Court is of the opinion that, the same can be retained. In such circumstances, this Court is of the opinion that, the rate applied for Income tax deduction at 10% is proper since otherwise 20% would have to be applied for half of the income upto Rs.10 lakhs. 7. A deduction of 10% applied on Rs.88,125/-, would lead to a monthly income of Rs.79,313/-, i.e., (88,125 - 8,812). Out of this, ¼[th] has to be reduced for personal expenses. Hence, (79,313 - 19,828) would leave the notional income for computation of compensation for future prospects, while in employment at Rs.59,485/-. 8. A reading of **Puttamma's case** would necessarily lead to an irrefutable conclusion that when there is impending retirement of the deceased, then the multiplier cannot be applied as has been stated in **Sarla Verma's** **M.A.C.A. No.2287/15 [A]** **7** **case** . There should be a split multiplier applied. In doing so, this Court is guided by the principle as laid down in **Valsa's case,** by a Division Bench of this Court, wherein, for a 47 year old deceased, the entire salary was taken for 10 years and half of the pension for the remaining 3 years on which the multiplier was applied. In the present case, the deceased had a service left of 3 years and hence, the multiplier has to be split as 3 and 8. The loss of income being computed at Rs.59,485/-, the total compensation payable on a multiplier of '3' would be Rs.21,41,460/(59,485 X 12 X 3). The balance multiplier to be applied is '8'. Upon retirement, only half of the salary can be computed for loss. However, as has been pointed out by the learned counsel appearing for the respondents the deceased definitely had future prospects since he was an Academician and was a Professor, teaching History in an Aided College. 9. In such circumstances, this Court is of the opinion that, the future income loss to the family cannot be confined to 50% of the salary; but has to be fixed at **M.A.C.A. No.2287/15 [A]** **8** ¾[th] of the salary. Hence, the future income computed after retirement would be ¾[th] of Rs.59,485/-, which will come to Rs.44,614/- (59,485 x ¾). Computing the future prospects with that amount applying a multiplier of '8', the total compensation would be Rs.42,82,944/- (44,614 X 12 X 8). The total compensation, for loss of dependency hence, would be Rs.64,24,404/-. The Tribunal order, in so far as the loss of dependency is concerned, would stand modified to that extent. The amounts as computed by this Court, by modifying the Tribunal order, shall stand satisfied by the Insurance Company within a period of two months from the date of receipt of the certified copy of this judgment, with interest as directed by the Tribunal from the date of application. Ordered accordingly. Parties shall suffer their respective costs before this Court. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** DSV/28/7/18