Royal Sundaram Alliance Insurance Company Limited v. O. Sasikala and Bhagya Lekshmi S. RadhaKrishnan

MACA.No.1142/18 & CO.139/23 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945_ _CO NO. 139 OF 2023_ _AGAINST THE ORDER/JUDGMENT MACA 1142/2018 OF HIGH COURT OF KERALA_ ## _CROSS OBJECTOR/RESPONDENTS:_ _1 O.SASIKALA, AGED 54 YEARS, W/O.LATE RADHAKRISHNAN P., VELIPARAMBIL HOUSE, KURUPPAMKULANGARA P.O., CHERTHALA, ALAPPUZHA., PIN – 688 539._ _2 BHAGYALEKSHMI S. RADHAKRISHNAN, AGED 26 YEARS, D/O.LATE RADHAKRISHNAN P., VELIPARAMBIL HOUSE, KURUPPAMKULANGARA P.O., CHERTHALA, ALAPPUZHA, PIN – 688 539._ _BY ADVS. B.PRAMOD BIJU VIGNESWAR_ ## _RESPONDENT/APPELLANT:_ _ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, ALAPPUZHA, NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI, PIN – 600 002._ ## _ADV.MATHEWS JACOB SENIOR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2023, ALONG WITH MACA.1142/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1142/18 & CO.139/23 2 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945_ ## _MACA NO. 1142 OF 2018_ _AGAINST THE ORDER/JUDGMENT OPMV 1424/2010 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, ALAPPUZHA / II ADDITIONAL MACT/ LAND ACQUISITION REHABILIEATION AND RE-SETTLEMENT AUTHORITY, ALAPPUZHA_ ## _APPELLANT/2ND RESPONDENT:_ _ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, ALAPPUZHA NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI - 600 002._ _BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENTS/PETITIONERS:_ _1 O.SASIKALA, W/O.LATE RADHAKRISHNAN P, VELIPARAMBIL HOUSE,KURUPPAMKULANGARA P.O, CHERTHALA, PIN - 688 539._ _2 BHAGYALEKSHMI S.RADHAKRISHNAN, VELIPARAMBIL HOUSE,KURUPPAMKULANGARA P.O, CHERTHALA, PIN - 688 539._ _BY ADVS.SRI.B.PRAMOD SMT.NAMITHA JYOTHISH_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2023, ALONG WITH CO.139/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1142/18 & CO.139/23 3 ## **JUDGMENT** ## **[MACA No 1142/2018 & CO Nos.139/2023]** This appeal is submitted by the 2nd respondent in O.P.(MV). No.1424 of 2010 on the file of the Addl. Motor Accidents Claims Tribunal-II, Alappuzha. The said claim petition was submitted by respondents 1 and 2 herein along with one Nanikutty, who is no more, seeking compensation for the death of one Radhakrishnan, due to the injuries sustained in an accident that occurred on 31.10.2009. The 1st claimant was the wife, the 2nd claimant was the daughter, and the 3rd claimant was the mother of the deceased. 2. The accident occurred when the car bearing registration No.KL-33/3992, driven by the 1st respondent in the claim petition, hit him while he was standing on the side of the road. The deceased was 45 years old and was a veterinary surgeon in the Veterinary Dispensary in Chingoli. The monthly income of the deceased at the time of the accident was Rs.26,715/-. The claim petition was submitted in such circumstances. MACA.No.1142/18 & CO.139/23 4 3. The 1st respondent in the claim petition, who was also the owner of the vehicle, was set ex parte. The 2nd respondent/appellant herein filed a written statement admitting the coverage of policy for the said vehicle. However, they disputed the liability on various grounds. The quantum of compensation was also disputed. 4. The evidence in this case consists of Exts.A1 to A12 from the side of the claimants and from the side of the appellants and other respondents, no other evidence was adduced. After the trial, the Tribunal arrived at a conclusion that the accident occurred due to the negligence on the part of the 1st respondent in the claim petition and being the insurer, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.39,14,488/- and the said amount was directed to be deposited with interest at the rate of 9% per annum from the date of petition till realization. This appeal is submitted in such circumstances, challenging the quantum of compensation. 5. Claimants have filed cross objection No.139 of 2023 seeking enhancement of compensation. MACA.No.1142/18 & CO.139/23 5 6. Heard Sri.Mathews Jacob, learned Senior counsel for the appellant and Sri.B.Pramod, learned counsel for the respondents 1 and 2/Cross Objectors. 7. The main dispute in this case relates to the quantum of compensation. When the appellant contends that the amount awarded by the Tribunal was exorbitant, the claimant would contend that the amount awarded was inadequate and requires re-consideration. I have carefully gone through the records. The records indicate that the deceased was a veterinary surgeon with a monthly income of Rs.26,715/-, which is established as per Ext.A9 salary certificate. There was no dispute on the salary and it was accepted by the Tribunal. However, the crucial aspect highlighted by the learned counsel for the claimants is that the Tribunal adopted a split multiplier, taking into account the service remaining to the credit of the deceased at the time of the death. A different monthly income was adopted for the postretirement period, which was unacceptable. The said contention is to be accepted in the light of the **Puttamma v. K.L Narayana Reddy [2014 (1) KLT 738],** rendered by the Honourable Supreme Court, wherein it was held that the method of split MACA.No.1142/18 & CO.139/23 6 multiplier cannot be adopted for the purpose of assessing the compensation. Therefore, to that extent, interference is required, and a monthly income of Rs.26,715/- is applied for the entire multiplier of 14, which is applicable to the age of the deceased. 8. The next aspect to be considered is the deduction towards Income Tax. It was pointed out that the Tribunal straight away deducted 10% towards Income Tax without taking into account the actual deduction contemplated under the Income-tax slab prevailing at the relevant time. It is evident that in the years 2009-2010, for an income up to Rs.1,50,000, there was no tax payable. For the amount above Rs.1,50,000/- up to Rs.3,00,000/-, the tax payable was 10% and above Rs.3,00,000/- up to 15,00,000/-, the tax payable was 20%. In this case, since the monthly income is Rs.26,715/-, the annual income would come to Rs.3,20,580/-. When calculating the tax as mentioned above, the said amount would come to Rs.19,116/-. Thus, after deducting the said amount, the annual income of the deceased would come to Rs.3,01,464/-. In the light of the principles in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)],** 30% of the monthly income has to be added as the deceased was MACA.No.1142/18 & CO.139/23 7 aged 45 years at the time of the accident and was in a regular employment. Thus, while re-assessing the compensation with the above criteria, the amount would come to Rs.36,57,763/[(301464 + 30%) x 14 x 2/3]. The amount already awarded by the Tribunal is Rs.35,63,488/-. Thus the additional amount would come to Rs.94,275/-. 9. When moving on to the other heads, it can be seen that the Tribunal has awarded a compensation of Rs.1,00,000/towards the loss of consortium. Since the deceased left behind three persons who were the wife, daughter and mother, all of them were entitled to compensation under the said head at the rate of 40,000/- each in the light of the principle in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760].** Thus, the amount would come to Rs.1,20,000/- and therefore, a further sum of Rs.20,000/is granted under the said head. 10. However, the Tribunal awarded an amount of Rs.25,000/- under the head of funeral expenses, whereas the actual amount should have been Rs.15,000/- as held in **Pranay** MACA.No.1142/18 & CO.139/23 8 **Sethi** (supra). Therefore, an amount of Rs.10,000/- is to be deducted. Similarly, an amount of Rs.1,00,000/- is seen granted towards loss of love and affection towards the family members. In the light of the observations made by the Honorable Supreme Court in **Satinder Kaur (supra),** when compensation is awarded for loss of consortium, no separate compensation for loss of love and affection could be granted. Therefore, Rs.1,00,000/- is to be deducted. The amount awarded towards loss of estate was R.1,00,000/-, which is also not in tune with the observations made by the Honorable Supreme Court in **Pranay Sethi** (supra), wherein the said amount was fixed as Rs.15,000/-. Therefore, the amount of Rs.85,000/- is to be deducted. Thus, while re-assessing the compensation, it is found that the amount awarded by the Tribunal is in excess by Rs.80,725/[(10000+85000+100000) - (94275+20000)]. Thus, the total compensation receivable by the appellant is determined as Rs.38,33,763/-. In the light of the aforesaid observations and findings, this appeal and Cross objection are disposed of by re-fixing the award passed by the Tribunal as Rs.38,33,763/- (Rupees thirty eight MACA.No.1142/18 & CO.139/23 9 lakhs thirty three thousand seven hundred and sixty three only) and the appellant shall deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realization. The said payment shall be effected within a period of three months from the date of receipt of a copy of this judgment after adjusting the amount already deposited. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/22.12.23