The Oriental Insurance Co. Ltd. v. C.K. Sujatha and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Ravikumar
K. P. Jyothindranath
Judgment Date: 2017-02-23
Court Decision / Holding: The impugned award is modified and reduced to Rs.29,72,500/-, with interest preserved and no costs. Court fee shall be realized by the Tribunal, and apportionment remains unchanged.
Final Disposition: Modified the award; reduced compensation to Rs.29,72,500; interest maintained; no costs; court fee to be realized; apportionment maintained.

Parties to the Case

Appellants / Petitioners

The Oriental Insurance Co. Ltd.

Respondents

C.K. Sujatha
Arun Sanal
Arjun Sanal
Ammini Amma Peediyeekkal

Legal Representation & Advocates

Counsels for Petitioners

• Adv. George Cherian (Thiruvalla)

Counsels for Respondents

• Adv. Aysha Youseff
• Adv. Molly Jacob
• Adv. Jobi A. Thampi
• Adv. M. Kabani Dinesh
• Adv. Rabia Beegam T.K.
• Adv. T. M. Mohammed Yousuff (Sr.)

Case Synopsis & Summary

This appeal by The Oriental Insurance Co. Ltd. challenges the Motor Accidents Claims Tribunal, Kottayam award in O.P.(MV) No.863/2011 dated 31 January 2013, concerning the death of K.S. Sanal Kumar in a road accident on 5 April 2011. The deceased, aged 54, was a salaried employee of Hindustan Newsprint Limited (a Government of India undertaking). He rode a motorcycle when his vehicle was struck by a car (KL 5/X 7437). The Tribunal awarded Rs.33,49,788 in total compensation to the claimants (wife, children and mother). The insurer submits that the award is exorbitant and not properly computed; the case notes that the claimants described the deceased as a Government employee who would retire at 60, so the dependency calculation should reflect future prospects appropriately. They invoke Kumaran v. Roy Mathew to emphasize superannuation as a factor in dependency calculation. The claimants contend that the Tribunal’s award was just and that the salary certificate Ext.A9 proves a salaried status; they rely on Rajesh v. Rajbir Singh (SC) to argue for 15% future prospects. The High Court, after consideration, endorses a split multiplier due to impending retirement and applies only 10% future prospects, given Ext.A9’s figures. It recalculates dependency, adjusts several heads (funeral, loss of estate, love and affection, etc.), and, while preserving interest and apportionment, reduces the total to Rs.29,72,500 (rounded) with no costs.”

Legal Doctrines & Maxims

Split multiplier

Submissions & Arguments

Contentions of Appellants / Petitioners

The Insurance Company contends that the Tribunal’s quantum is excessive and not properly structured. It argues that since the deceased was 54 at the time of accident and a Government undertaking employee, retirement is at 60; therefore the multiplier used by the Tribunal is inappropriate. The Tribunal relied on Ext.A9 salary details; the insurer argues for adjustment based on the possibility of notional future income and stresses that future prospects (15%) should be adjusted in light of retirement and deductions, citing Kumaran v. Roy Mathew and Rajesh v. Rajbir Singh.

Contentions of Respondents

The claimants assert that the Tribunal awarded just compensation. They rely on Ext.A9 salary evidence to show a salaried status and argue for the application of future prospects as per Rajesh v. Rajbir Singh (SC); they contend that the award should reflect the claimant’s loss of dependency, along with loss of love and affection, loss of estate, funeral expenses, and loss of consortium, among other heads.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kumaran v. Roy Mathew	(2017(1) KLT 668)	Positive	Cited to support that superannuation is a factor to be considered in dependency calculations; used to justify adjusting the income base.
Rajesh v. Rajbir Singh	(2013(3) KLT 89 (SC))	Partly Overruled / Limited	Cited as a basis for 15% future prospects for salaried employees, but the court applies only 10% in this case, reflecting partial limitation of Rajesh's rule.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938** **MACA.No. 1243 of 2013 () -------------------------** **AGAINST THE AWARD IN OPMV 863/2011 of M.A.C.T.,KOTTAYAM DATED 31-01-2013** ## **APPELLANT/3RD RESPONDENT:** **-------------------------------------** **THE ORIENTAL INSURANCE CO.LTD. KOTTAYAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **RESPONDENTS/CLAIMANTS: ------------------------------------** **1. C.K.SUJATHA @ SUJATHA SANAL PEEDIYEKKAL (H), VADANAM.P.O., ALAPPUZHA, NOW RESIDING AT B-15/17 HNL QUARTERS, NEWS PRINT NAGAR.P.O., KOTTAYAM.PIN 673 001 2. ARUN SANAL REP. BY NEXT FRIEND C.K.SUJATHA, PEEDIYEKKAL (H), VADANAM.P.O., ALAPPUZHA, NOW RESIDING AT B-15/17 HNL QUARTERS, NEWS PRINT NAGAR.P.O., KOTTAYAM. PIN 673 001 3. ARJUN SANAL REP. BY NEXT FRIEND C.K.SUJATHA, PEEDIYEKKAL (H), VADANAM.P.O., ALAPPUZHA, NOW RESIDING AT B-15/17 HNL QUARTERS, NEWS PRINT NAGAR.P.O., KOTTAYAM. PIN 673 001 4. AMMINI AMMA PEEDIYEKKAL (H), VADANAM.P.O., ALAPPUZHA, NOW RESIDING AT B-15/17 HNL QUARTERS, NEWS PRINT NAGAR.P.O., KOTTAYAM.PIN 673 001** **R1-R4 BY ADV. SMT.AYSHA YOUSEFF R1-R4 BY ADV. SMT.MOLLY JACOB R1-R4 BY ADV. SRI.JOBI.A.THAMPI R1-R4 BY ADV. SMT.M.KABANI DINESH R1-R4 BY ADV. SMT.RABIA BEEGAM T.K. R1-R4 BY ADV. SRI.T.M.MOHAMMED YOUSUFF(SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1243 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of February, 2017 ## **JUDGMENT** ## Jyothindranath, J. This appeal is preferred by the Insurance Company challenging the award in O.P.(MV)No.863/2011 dated 31.01.2013, on the file of the Motor Accidents Claims Tribunal, Kottayam. The challenge is against the quantum of compensation awarded by the Tribunal. 2. When the appeal came up for hearing, the learned counsel for the Insurance Company submitted that here is a case where one K.S.Sanal Kumar met with a motor vehicle accident on 5.4.2011 at about 9.30 p.m. While deceased was riding his motor cycle bearing Reg.No.KL05/P-4304 along the Thalayolaparambu-Peruva road, a car bearing Reg.No.KL 5/X 7437 came and hit against the said vehicle and in that accident Sanal Kumar sustained fatal injuries and he succumbed to the injuries on the way to the hospital. The claimants, who are the M.A.C.A.No.1243/2013 2 wife, children and aged mother of the deceased moved a claim petition before the Tribunal alleging negligence of the car driver as cause of accident and claiming a total compensation of Rs.37,00,000/-. The Tribunal awarded a total compensation of Rs.33,49,788/-. 3. It is the submission of the learned counsel for the appellant/Insurance Company that the compensation awarded is exorbitant and without any basis. It is also submitted before us that the case of the claimants before the Tribunal was that the deceased was working as a Training Assistant in Hindustan Newsprint Limited, Velloor, which is a Government of India undertaking. If he was employed therein, surely he will retire at the age of 60. As per the case of the claimants, at the time of the accident, the deceased was aged 54 years. Then naturally the deceased will be having the salary income only for a period of six years and thereafter the Tribunal ought to have considered only a notional income for the purpose of calculation of compensation on the head of dependency. But the Tribunal considered his monthly income as evident from the salary certificate marked M.A.C.A.No.1243/2013 3 before the Tribunal as Ext.A9. The Tribunal adopted a multiplier of 11 without considering the fact that the deceased was an employee in a Government undertaking and will be going to retire at the age of 60. To buttress the said contention, the learned counsel also drew our attention to the decision in **Kumaran v. Roy Mathew (2017(1) KLT 668)** , wherein it is categorically stated that superannuation is a factor to be considered by the Tribunal while dependency is calculated. It is also the submission before us that the total compensation awarded is not a just compensation and an interference by this Court is warranted. 4. The learned counsel appearing for the claimants submitted before us that in this case the Tribunal awarded a just compensation. It is also the submission that the compensation awarded on the head of loss of consortium and loss of love and affection as well as loss of estate are on a lower side. It is also the submission of the learned counsel that here is a case where the deceased was an employee in a Government of India enterprise. He was a salaried man. The salary certificate was relied on by the Tribunal for assessment purpose. The M.A.C.A.No.1243/2013 4 salary certificate was also proved by an official from the Hindustan Newsprint Limited. When the deceased is a salaried person, then the dictum laid down by the Apex Court in the decision in **Rajesh v.Rajbir Singh ( 2013 (3) KLT 89 (SC)** will be applicable. It is the submission that when admittedly the age of the deceased was 54 years, 15% increase towards his income should have been made towards future prospects. The sum and substance of the submission of the learned counsel is that a just compensation is awarded and an interference by this Court is not warranted. 5. We have perused the award and also the relevant records before the Tribunal. On a perusal of the award and the records and also after considering the submissions, it can be seen that it is a case where the deceased was an employee in a Government of India undertaking. It is also the admitted case that he is a salaried person. It can be also seen that at the time of accident, he was aged only 54 years and the superannuation in a Government undertaking will be at 60 years. Then the salary he was drawing at the time of accident will not M.A.C.A.No.1243/2013 5 continue beyond an age of 60 years. Thus, if assessing compensation towards dependency by considering an income relevant at the time of accident, considering a multiplier which is higher than that of the period he will be in the Govt. company may not be proper. The corollary is that this is a fit case where a split multiplier can be used. Surely, the Apex Court held that the split multiplier can be used for reasons recorded. In this case, the Tribunal considered the annual income of the deceased as Rs.3,88,943/-. Surely, the Tribunal arrived at this figure after deducting Rs.10,213/- towards income tax. As per the dictum laid down in **Rajesh's** case (supra) 15% increase towards future prospects has to be added. But at the same time, on perusal of the salary certificate, which is marked as Ext.A9, we feel that only an increase of 10% need be made, especially when no deduction from the source is seen made towards any head in the salary certificate. That is net salary, the salary packet he can taken home, is not shown. It is also relevant to note that there is nothing to show that he was a technically qualified person. The only document produced before the Tribunal M.A.C.A.No.1243/2013 6 regarding his educational background is the SSLC book which is marked as Ext.A10. As already stated 10% increase can be made towards future prospects. Thus his annual income can be refixed as Rs.4,27,837/- for calculation purpose till he retires from service. Thus, in this case, it can be seen that there are four claimants, a deduction of ¼ has to be made towards his personal expenses. Then the compensation available towards dependency till his retirement 60 years will be Rs.19,25,266/- (427837 x ¾ x 6). After the retirement, only 50% of this amount can be considered for calculation purpose. While, only 50% is considered, it is also kept in mind, the positive case of the claimant is that he was working in Hindustan Newsprint Limited. Naturally, there will be social security schemes available for the employees after their retirement. Similarly, as per the case of the claimants, he was working as a Trainer in the firm. If that be so, considering all these aspects, we consider 50% of the amount considered earlier as his annual income for assessment purpose after retirement. Thus, the amount available on this head will be M.A.C.A.No.1243/2013 7 Rs.8,02,194/- (4,27,837/- x ½ x ¾ x 5). Thus, on adding the amounts available, the claimants will be entitled for a total amount of Rs.27,27,460/- on the head of dependency. 6. Apart from the same, respondents/claimants will be entitled for enhancement of compensation awarded on some other heads. After considering the award, it can be seen that the compensation awarded on the heads of funeral expenses, loss of estate and loss of consortium are on a lower side. Towards loss of estate, only a sum of Rs.10,000/- is seen awarded. An additional sum of Rs.15,000/- ought to have been awarded under this head especially in the light of Exts.A8 and A15. It can be seen that the bank certified that at that point of time, he was having a balance of Rs.5,80,047/-. The said amount awarded. Similarly, towards loss of consortium, the Tribunal should have granted Rs.1,00,000/-, whereas the Tribunal awarded only Rs.30,000/-. An additional sum of Rs.70,000/- awarded on this head. Towards funeral expenses, only a sum of Rs.6,000/- is seen granted. There also the claimants are entitled to get a sum of Rs.25,000/- in the light of M.A.C.A.No.1243/2013 8 **Rajesh's case** (supra). On this head, an additional sum of Rs.19,000/granted. What we are highlighting is if deductions are made these aspects also have to be taken into consideration by this Court. Thus, on other heads, the claimants will be entitled to compensation as follows : |Transportation expenses|- 4,000/-| |---|---| |Funeral expenses|- 25000/-| |Damage to clothing|- Rs.1,000/-| |Pain and suffering|- Rs.20,000/-| |Loss of love and affection|- Rs.70,000/-| |Loss of consortium|- Rs.100,000/-| |Loss of estate|- Rs.25,000/-| Thus, the claimants will be entitled to get only a compensation of Rs.29,72,460/- which is rounded off to Rs.29,72,500/-. Thus, the impugned award is hereby is modified by scaling down to Rs.29,72,500/-. There will be no order as to costs. The interest awarded by the Tribunal is maintained. The court fee payable shall be M.A.C.A.No.1243/2013 9 realised by the Tribunal. The apportionment made by the Tribunal is also maintained. **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv.