Royal Sundaram Alliance Insurance Company Limited v. Ajayakumar, Aneesh, Ajeesh and Gomathy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** ## **MACA.No. 3123 of 2014** **AGAINST THE AWARD IN OPMV 935/2008 of ADDL.D.C. & MACT, NORTH PARAVUR DATED 31-07-2014** ## **APPELLANT/3RD RESPONDENT :** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED CHENNAI NOW REPRESENTED BY ITS MANAGER, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 AJAYAKUMAR,S/O.KRISHNA PANICKER, ACHOOS NIVAS, WEST KADUNGALLUR, PIN - 683 108.** **2 ANEESH,S/O.AJAYAKUMAR, ACHOOS NIVAS, WEST KADUNGALLUR, PIN - 683 108.** **3 AJEESH,S/O.AJAYAKUMAR, ACHOOD NIVAS, WEST KADUNGALLUR, PIN 683 108.** **4 GOMATHY,W/O.CHELLAPPAN, CHANDRIKA VILASAM (H), MARIYAPURAM, NEYYATTINKARA, TRIVANDRUM, PIN - 695 320.** **BY ADVS.SRI.GOPAKUMAR G.** **SMT.ANUPAMA JOHNY SRI.REJI GEORGE SRI.UMESH.N.PAI** ## **OTHER PRESENT:** ## **SR.ADV. SRI.MATHEWS JACOB FOR THE APPELLANT.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 3123 of 2014** **2** ## JUDGMENT This appeal is directed against the award dated 31.01.204 in O.P.(MV) No. 935/2008 on the files of the Motor Accident Claims Tribunal, North Paravur (for short 'the Tribunal'). Appellant is the insurer, who was the 3[rd] respondent before the Tribunal. The award is taken in challenge for the reason that the Tribunal failed to consider the multiplicand correctly for the purpose of computation of compensation despite clear evidence available before it to establish that the petitioner is due for retirement from service on 30.04.2015. 2. For brevity, the parties to this appeal are referred to hereinafter as claimants and respondents 1 to 3 in accordance with their status before the Tribunal. 3. The facts of the case are narrated in brief hereunder:- A lady named 'Vijayambika', who was working as Assistant Registrar of Cochin University of Science and Technology, died in a motor accident occurred at about 9.30 a.m. on 24.11.2008 at Muppathadom Panchayat junction. The lady was riding a scooty bearing registration No.KL-7/18-7743 from north to south through **MACA.No. 3123 of 2014** **3** Kadungallur-Muppathadom road and when reached at the Muppathadom Panchayat Junction, a tipper lorry bearing registration No.KL 32 A-4362 dashed against the scooty, thereby she was thrown on the road with serious injuries. She was rushed to Government Hospital, Aluva, but on the way she succumbed to death. Alleging that the driver of the Tipper Lorry was rash and negligent and responsible for the accident that occurred and seeking for a compensation of Rs.52,34,000/(limited to Rs.50 lakhs), a claim petition was preferred as aforestated before the Tribunal. 4. The driver, owner and insurer of the tipper lorry were arrayed as respondents 1 to 3 in the claim petition. The driver and owner remained _ex-parte_ in the proceedings before the Tribunal. The contesting 3[rd] respondent, the insurer had filed a written statement before the Tribunal admitting insurance coverage of the tipper lorry bearing registration No.KL 42/A-4362 as on date of accident, but outrightly denying the negligence on the part of the driver of the said vehicle and disputing the age, occupation and income of the deceased and the quantum of compensation claimed. **MACA.No. 3123 of 2014** **4** 5. Before the Tribunal, the husband of the victim, Mr.Ajayan had let in oral evidence as PW1. He had also let in documentary evidence as Exts.A1 to A6. Evidence either oral or documentary has not been let in by the 3[rd] respondent. On appreciation of the oral as well as documentary evidence, the Tribunal had arrived at a finding that the driver of the tipper lorry, the 2[nd] respondent was rash and negligent and therefore, responsible for the accident. The Tribunal has also arrived at a compensation of Rs.40,54,200/- and directed the third respondent to deposit the same with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation with proportionate cost of Rs.40,000/-. The aforesaid award was taken in challenge by the respondent for the reason that calculation of compensation for loss of dependency was done with the same multiplicand and the multiplier corresponding to the age of the deceased as on date in a circumstance wherein the Tribunal ought to have adopted a split multiplier method in consideration of the factum disclosed from evidence. According to the learned Senior Counsel, it is evidenced from Ext.A6 salary certificate issued from CUSAT that the lady would retire on 30.04.2015, but the Tribunal **MACA.No. 3123 of 2014** **5** has resorted to calculation of compensation with a constant multiplicand for the entire period of life of the victim. The learned Counsel has relied on **Puttamma v. Narayana Reddy** [2014(1) KLT 738 (SC)] to contend that adoption of a constant multiplicand spreading over the years is improper. According to him, the Apex Court has held in the decision that when there is evidence available on record before the Tribunal indicative of a specific reason, the courts are permitted to apply split multiplier. The further contention of the learned Senior Counsel was that the Tribunal has incorrectly awarded Rs.1 lakh each under the heads, loss of consortium and loss of love and affection. According to the counsel, the Tribunal is unjustified in granting compensation accordingly and interference is warranted. 6. Per contra, Smt.Anupama Johny, the learned counsel for the claimants has submitted that the multiplier and multiplicand have been adopted by the Tribunal in the correct perspective and interference is totally uncalled for. According to the learned counsel, the deceased was working as Assistant Registrar at CUSAT at the relevant time and this Court would not be ignorant of the chances of the victim to join another institution to serve for **MACA.No. 3123 of 2014** **6** remuneration, if her life had not been ended in the motor accident. According to the learned counsel, the Tribunal is perfectly justified in adopting the multiplicand and multiplier spreading over years while the deceased was in and out of service and arriving at compensation based on that. According to her, for the reasons as aforesaid, interference with the quantum of compensation under the head, loss of dependency is totally irrelevant. The learned counsel has also pleaded that just and reasonable compensation has been awarded by the Tribunal under the heads, loss of consortium, loss of love and affection and funeral expenses. According to her, this Court will not be justified to interfere with the quantum of compensation awarded under various heads, as above. 7. In the backdrop of the rival contentions, a scrutiny of the evidence on record is done. Judgments cited for reference by respective counsel were also perused. The husband of the lady had let in oral evidence as PW1. According to him, his wife was working as an Assistant Registrar at CUSAT at the relevant time when her life was taken away by a motor accident. Ext.A6, the salary certificate issued from CUSAT is made available in evidence **MACA.No. 3123 of 2014** **7** to establish that the lady at the relevant time of her death was earning Rs.25,175/- as salary. In view of **Sarala Verma v. Delhi** **Transport Corporation** [2010 (2) KLT 802(SC)] the Tribunal is justified in adding 30% to the monthly income in consideration of future prospects and deducting 1/4[th] therefrom in consideration of the personal expenses, that would be incurred by the deceased, had she been alive. The aforesaid considerations being legally correct, interference is totally unwarranted. 8. The deceased being aged 49 years at the relevant time of her death, the correct multiplier will be 13 and that itself was considered by the Tribunal. It is evidenced from Ext.A6 that the deceased if had not been died in the accident, would retire only on 30.04.2015. As held in **Puttamma** 's case (supra), the evidence available regarding the retirement age itself is a specific reason for the Tribunal to adopt the split multiplier method. But in the case on hand, the Tribunal failed to do so, even though clear cut evidence was available before it regarding the age of retirement. The Tribunal has taken a constant multiplicand and multiplier for the purpose of computation of compensation spreading all through years without taking into account the **MACA.No. 3123 of 2014** **8** retirement age. Undoubtedly, the method of computation is incorrect and the Tribunal is highly unjustified in doing so. Therefore, this Court is inclined to interfere with the same to set it right. The monthly income of the deceased as on date of death being Rs.25,175/-, 30% of the monthly income is required to be added towards future prospects and 1/4[th] to be deducted therefrom and thus the compensation payable for 7 years' inservice period with the split multiplier as 7 would be Rs.12,03,686/-. The compensation payable in consideration of out of service period in life after retirement when reckoned with multiplicand Rs.36,000/- (3000 x 12) and multiplier 6, would be Rs.2,16,000/-. Therefore, the total sum payable under the head loss of dependency would come to Rs.22,77,864/-. 9. Under the head loss of consortium, Rs.1 lakh was awarded by the Tribunal. In view of the specific directions issued by the Constitutional Bench of the Apex Court in **National Insurance Co.Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], the petitioner will be entitled to get Rs.40,000/- under the conventional head of loss of consortium. In view of the above, Rs.1 lakh awarded by the Tribunal under the head loss of **MACA.No. 3123 of 2014** **9** consortium is excessive and against the directions of the Constitutional Bench of the Apex court. Therefore, a reduction of Rs.60,000/- from the sum awarded by the Tribunal is inevitable and accordingly this Court do so. Therefore, the amount payable under the head loss of consortium is fixed as Rs.40,000/-. 7. Under the head funeral expenses, the Tribunal has awarded an amount of Rs.25,000/- which in view of the direction of the Constitutional Bench in **Pranay Sethi** 's case (supra) is on the higher side. The Apex Court has fixed Rs.15,000/- as compensation payable under the head funeral expenses. Therefore, the amount already awarded by the Tribunal is modified and refixed as Rs.15,000/-. Under the head, loss of love and affection, the Tribunal has awarded Rs.1 lakh as compensation. Though a modification by way of reduction is sought by the learned Senior Counsel , I am declined to do so, since the deceased was survived by two children and parents apart from her husband and they are entitled to get compensation as filial consortium and parental consortium. Therefore, Rs.1 lakh awarded under the head loss of love and affection is maintained treating it as compensation paid under the aforesaid heads. In **MACA.No. 3123 of 2014** **10** the refixation in interference, the total compensation payable to the petitioner is Rs.24,32,864/- (rounded off to Rs.24,33,000/-). Therefore, the compensation awarded by the Tribunal as per the impugned award is reduced by Rs.16,21,200/-. The direction to pay interest at the rate of 8% per annum as per the impugned award is maintained. 8. The 3[rd] respondent/insurer shall deposit the aforesaid sum with interest as stated above within a period of three months from the date of of receipt of a copy of this judgment. The appeal is disposed of as above. The parties to this appeal shall bear their respective costs in the appeal themselves. ## **Sd/-** ## **MARY JOSEPH** **JUDGE** ttb