Reliance General Insurance Co. Ltd. v. Santha and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946`** ## **`MACA NO. 3532 OF 2016`** ## **`AGAINST THE AWARD DATED 01.07.2016 IN OP(MV) NO.305 OF 2011 OF MOTOR`** ## **`ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD`** ## **`APPELLANT/3RD RESPONDENT:`** ``` RELIANCE GENERAL INSURANCE CO.LTD, COCHIN, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN ``` ## **`RESPONDENTS/CLAIMANTS:`** - **`1 SANTHA, W/O.CHANDRAN, VERUKAMPOTTA HOUSE, VENOLI, PUDUSSERY, PALAKKAD-678 623.`** - **`2 SARITHA, D/O.CHANDRAN, VERUKAMPOTTA HOUSE, VENOLI, PUDUSSERY, PALAKKAD-678 623.`** - **`3 SAJINI, D/O.CHANDRAN, VERUKAMPOTTA HOUSE, VENOLI, PUDUSSERY, PALAKKAD-678 623.`** - **`4 SAJITHA, D/O.CHANDRAN, VERUKAMPOTTA HOUSE, VENOLI, PUDUSSERY, PALAKKAD-678 623.`** ``` BY ADVS. THAREEQ ANVER K P.K.MOHANAN(PALAKKAD) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs.3532/2016 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 05[th] day of April, 2024** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Palakkad (for short, ‘the Tribunal’) on 01.07.2016 in O.P(M.V) No.305/2011. The appellant is the 3[rd] respondent in the above Original Petition, who is the insurer of the offending vehicle. The main challenge in the appeal was against the calculation of compensation based on the monthly income fixed and adoption of multiplier as 11, despite the factum that the victim of the motor accident who died had only five years left for his retirement. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 4 and respondents 1 to 3 in accordance with their status in the Original Petition. ``` MACA NOs.3532/2016 ``` ``` 3 ``` 3. It is contended by the learned counsel that the Tribunal failed to adopt the split multiplier method of calculation and therefore is unjustified. 4. It contended further that the victim of the motor accident was aged 54 years at the relevant time when he died and therefore 10% ought to have been added by the Tribunal to the monthly income fixed in consideration of his loss of future prospects rather than 15% taken by the Tribunal. The learned counsel urged furthermore that `1,00,000/- was awarded by the Tribunal towards loss of consortium whereas as directed by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** petitioners are entitled to get `1,60,000/- (`40,000/- x 4) as compensation. According to him, the petitioners being legal representatives of the deceased have no entitlement to get compensation towards pain and sufferings. According to him, the Tribunal ought to have awarded compensation eligible to receive by the petitioners towards loss of estate and funeral ``` MACA NOs.3532/2016 ``` ``` 4 ``` expenses as directed by the Apex Court in **Pranay Sethi** supra. The learned counsel pointed out that `10,000/- and `25,000/respectively were awarded by the Tribunal against the entitlement of the petitioners to get `15,000/- each under those heads. Before adverting to the arguments advanced, a brief discussion about the facts of the case is made hereunder: 5. On 05.11.2010, Mr.Chandran was travelling on the pillion seat of a motorcycle bearing Registration No.KL 9/G767 ridden by his friend Krishnan and when reached in front of a company namely Instrumentation Ltd at Kanjikode, at about 4.40 p.m, a Lorry bearing Registration No.KL-05/J-4608, driven by the 2[nd] respondent in a rash and negligent manner dashed against and thereby he sustained serious injuries. He succumbed to the injuries lateron. Alleging negligence on the part of the driver of the lorry and claiming a sum of `17,32,000/- as compensation, the above Original Petition was filed before the Tribunal. ``` MACA NOs.3532/2016 ``` ``` 5 ``` 6. The driver, the registered owner and the insurer of the lorry were arrayed as respondents 1 to 3 in the above Original Petition. Notice was issued from the Tribunal on all respondents but respondents 1 and 2 were declared as ex parte for their failure to appear and contest the Original Petition despite service of notice on them. 3[rd] respondent entered appearance and filed written statement admitting insurance coverage of the lorry as on date of the motor accident but denying negligence alleged against the driver of the lorry. Negligence was sought to be attributed to the rider of the motorcycle. The amount claimed as compensation was disputed for its exorbitance. 7. The learned counsel for the insurer contended that the Tribunal failed to adopt split multiplier method, though it was convinced that the victim of the motor accident had only 5 years left for retirement from service. 8. In **N. Jayasree and others v. Cholamandalam MS General Insurance Company Ltd. [(2022) 14 SCC** ``` MACA NOs.3532/2016 ``` ``` 6 ``` **712]** the Apex Court has held that split multiplier method cannot be adopted in a case where the deceased had only few years service left after his death. The argument advanced by the learned counsel is devoid of any merits in view of the above dictum and therefore it is discarded. 9. Monthly income of the deceased was fixed by the Tribunal based on a salary certificate, marked in evidence as Ext.A12. The employer of the deceased who issued Ext.A12 was also examined by the petitioner before the Tribunal as PW1. Based on the oral evidence of the employer as PW1 and Ext.A12, the Tribunal took his monthly income as `23,006/-. From the above sum `1,006/- was deducted towards income tax. In the above circumstances, the argument advanced by the learned counsel for the insurer to modify the monthly income by way of reduction is discarded, being devoid of any merits. 10. 15% was added by the Tribunal to the monthly income in consideration of loss of future prospects of the deceased on account of his untimely death in the motor ``` MACA NOs.3532/2016 ``` ``` 7 ``` accident. The inquest report, the certificate of postmortem examination and the identity card respectively marked in evidence as Exts.A2, A4 and A8 were relied on by the Tribunal to take a view that the deceased was aged 54 years at the relevant time of his death. No challenge was found raised against that by the insurer. This court also finds no reason to take a different view. Therefore, the age taken by the Tribunal is maintained. The multiplier adopted by the Tribunal is appropriate to the age of the deceased and therefore, that is also maintained. 11. The age of the deceased considered by the Tribunal being 54 years, instead of 15%, 10% ought to have been added to the monthly income in consideration of loss of future prospects due to his untimely death, as per the dictum in **Pranay Sethi** supra. When 10% addition is made to the monthly income, `24,200/- (`22,000/- + 10% of `22,000/-) is arrived at. Deceased was survived by four family members including his wife aged 46 years and three major children respectively aged ``` MACA NOs.3532/2016 ``` ``` 8 ``` 24, 23 and 20 years. The surviving family members, being four in numbers 1/4[th] is deducted by the Tribunal in consideration of the personal expenditure, the deceased would have spend had he been alive after the motor accident. It being correct is also maintained. 12. When compensation for loss of dependency is calculated with the factors modified now and taken to consideration by the Tribunal, `23,95,800/- (`24,200/- x 12 x 11 x ¾) is arrived at, which is `1,08,900/- lower than `25,04,700/- stood awarded by the Tribunal. 13. `15,000/- each is awarded now as compensation towards loss of estate and funeral expenses. Petitioners being four in numbers they are entitled to get `1,60,000/(`40,000/- x 4) as compensation towards loss of consortium. `25,000/- stands awarded by the Tribunal as compensation towards pain and sufferings is deducted, since the petitioners are not entitled to get that. ``` MACA NOs.3532/2016 ``` ``` 9 ``` In the above manner of calculation of compensation afresh, petitioners will get `25,87,550/- (`27,66,450/- + `60,000/-) - (`1,08,900/- + `5,000/- + `25,000/- + `1,00,000/-). The said amount will also carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent shall deposit the amount in favour of the petitioners within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. ``` Sd/- ``` **MARY JOSEPH JUDGE** JJ