The Oriental Insurance Co. Ltd. v. Geethamani alias Geetha and others (MACA No. 722 of 2013)

**MACA.No.722 OF 2013** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.722 OF 2013** **AGAINST THE AWARD IN OPMV 445/2008 DATED 22-07-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **THE ORIENTAL INSURANCE CO. LTD. VATAKARA, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SMT.K.S.SANTHI** ## **RESPONDENT/S:** **1 GEETHAMANI ALIAS GEETHA W/O. LATE RAVEENDRAN N.K., KOLANGARATH THAZHA KUNIYIL HOUSE, RAYARANGOTH P.O., MADAPPALLY COLLEGE(VIA), VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA, PIN-673 102. 2 REGILA K.T.K. D/O. RAVEENDRAN, KOLANGARATH THAZHA KUNIYIL HOUSE, RAYARANGOTH P.O., MADAPPALLY COLLEGE(VIA), VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA, PIN-673 102.** - **3 JITHESH K.T.K. S/O. RAVEENDRAN, KOLANGARATH THAZHA KUNIYIL HOUSE, RAYARANGOTH P.O., MADAPPALLY COLLEGE(VIA), VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA, PIN-673 102.** - **4 JITHU K.T.K. S/O. RAVEENDRAN, KOLANGARATH THAZHA KUNIYIL HOUSE, RAYARANGOTH P.O., MADAPPALLY COLLEGE(VIA), VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA, PIN-673 102.** **MACA.No.722 OF 2013** **2** **5 JITHIN K.T.K. S/O. RAVEENDRAN, KOLANGARATH THAZHA KUNIYIL HOUSE, RAYARANGOTH P.O., MADAPPALLY COLLEGE(VIA), VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA, PIN-673 102. (REPRESENTED BY MOTHER AND GUARDIAN 1ST RESPONDENT GEETHAMANI @ GEETHA).** ## **6 MATHU** **W/O. KANARAN, KOLANGARATH THAZHA KUNIYIL HOUSE, RAYARANGOTH P.O., MADAPPALLY COLLEGE(VIA), VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA, PIN-673 102.** **R1 BY ADV. SRI.KRISHNADAS P. NAIR R1 BY ADV. B.SABITHA (DESOM) R2-5 BY ADV. KRISHNADAS P. NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2021, THE COURT ON 17-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.722 OF 2013** **3** ## **JUDGMENT** The appellant– Insurance Company -- was the 3[rd] respondent in O.P(MV) No.445/2008 on the file of the Motor Accidents Claims Tribunal, Vatakara. The respondents in the appeal were the petitioners in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as “Act”) claiming compensation on account of the death of one Raveendran – the husband of the 1[st] petitioner , the father of petitioners 2 to 5 and the son of the 6[th] petitioner. 3. The concise case of the petitioner in the claim petition, which are relevant for the determination of the appeal, was: on 26.11.2007 while Raveendran (deceased), was walking through the Nadapuram Road Bus Stop, a bus bearing Reg. **MACA.No.722 OF 2013** **4** No.KL/18/C-333 (offending vehicle) driven by the 2[nd] respondent hit the deceased and he succumbed to the injuries. The offending vehicle was owned by the 1[st] respondent in the claim petition and the 3[rd] respondent was its insurer. The petitioners claimed that they were the dependents of the deceased and the respondents 1 to 3 were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.20,00,000/-. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. However, it was contended that the compensation claimed was excessive. 6. The petitioners examined PW1 to PW4 and Exts.A1 to A12 were marked through them in evidence. Ext.B1 Insurance Policy was marked in evidence on the side of the 3[rd ] respondent. **MACA.No.722 OF 2013** **5** 7. The Tribunal, after analysing the evidence and materials on record, by the impugned award allowed the claim petition, in part, holding that the petitioners were entitled to a compensation of Rs.11,76,700/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and costs of Rs.12,000/-. The 3[rd] respondent was directed to pay the compensation amount. 8. Aggrieved by the impugned award, the 3[rd] respondent is in appeal. 9. Heard Smt.K.S Santhi, the learned counsel appearing for the appellant/3rd respondent and Sri.Krishnadas P.Nair, the learned counsel appearing for the respondents/petitioners. 10. The learned counsel appearing for the appellant argued that the Tribunal ought to have taken note of the fact that the deceased was aged 53 years at the time of his death and that he had only **MACA.No.722 OF 2013** **6** two more years of service. Therefore, the Tribunal ought to have followed the decisions of this Court in **Oriental Insurance Company Ltd. v. Valsa** [2015 (1) KLT 781] and **Kumaran v. Roy Mathew** [2017 (1) KLT 668] and adopted the split multiplier method of 2 and 9. Therefore, the compensation for the loss of dependency has to be re-calculated and refixed. 11. Per contra, the learned counsel appearing for the respondents argued that the deceased was a Sanitary Worker as well as a Theyyam Artist. The petitioners had examined PWs 1 to 3 and proved Exts.A1 to A4 through them, to substantiate that the deceased was a Theyyam Artist. The petitioners had claimed that the deceased had a monthly income of Rs.9,618/- as a Sanitary Worker and Rs.6,000/- per month as a Theyyam Artist. Therefore, the petitioner had a total monthly income of Rs.15,618/-. After the **MACA.No.722 OF 2013** **7** retirement of the deceased, he would have obviously engaged himself as a full-time Theyyam Artist and would have got more income than what he was earning as a part-time Theyyam Artist. Hence, the retirement of the deceased would have been inconsequential. Moreover, the Tribunal has not awarded compensation under the conventional heads and also not awarded any amount towards future prospects. Therefore, the total amount that has been awarded by the Tribunal is justifiable, especially taking into consideration the fact that the respondents/petitioners have not preferred any cross-objection challenging the quantum of compensation awarded by the Tribunal. 12. The questions that emerges for consideration in the appeal are (i) whether the fixation of the income of the deceased at Rs.1,35,416/- per annum is justifiable or not and (ii) whether the Tribunal ought to have adopted the split **MACA.No.722 OF 2013** **8** multiplier method? 13. The accident as well as the death of the deceased is not in dispute. The principal disputed question is whether the Tribunal ought to have followed a split multiplier method as laid down by this Court in **Oriental Insurance Company Ltd. v. Valsa** and **Kumaran v. Roy Mathew (supra)** 14. The specific contention of the petitioners in the claim petition was that the deceased was employed as a Sanitation Worker in the Vatakara Municipality and was drawing a monthly salary of Rs.9,618/- and was as a Theyyam Artist in more than 15 temples getting a monthly income of Rs.6,000/-, The petitioners had examined Pws 1 to 3 and proved Exts.A1 to A4 to substantiate that the deceased was a Theyyam Artist. Ext.A10 salary certificate was produced to prove that the petitioner was drawing a monthly salary of Rs.9,618/. **MACA.No.722 OF 2013** **9** 15. Despite the above-said documents and the oral testimonies of the above witnesses, the Tribunal fixed the annual salary of the deceased at Rs.1,15,416/- as a Sanitation Worker and an annual income of the deceased at Rs.20,000/- as a Theyyam Artist. Nevertheless, the Tribunal fixed the monthly income of the deceased at Rs.11,284/- based on the above-referred documents and the oral testimonies of Pws 1 to 3. 16. The sheet-anchor of the learned counsel appearing for the appellant is that the Tribunal ought to have followed the split multiplier method in the ratio of 2:9 and given full wages only for the multiplier 2 and half wages for the multiplier 9. Accordingly, the compensation under the head 'loss of dependency' ought to have been reduced using the split multiplier method as laid down in **Oriental Insurance Company Ltd. v. Valsa** and **Kumaran** **MACA.No.722 OF 2013** **10** ## **v. Roy Mathew** (supra). 17. The Hon'ble Supreme Court in **Puttamma v. Narayana Reddy** [2014 (1) KLT 738] has categorically held that the doctrine of split multiplier should not be used unless for cogent reasons. Similarly, it is to be noted that the plea of split multiplier was never pleaded or urged before the Tribunal. It is for the first time that the said contention is urged before this Court. Further more, in the peculiar facts and circumstances of the case, particularly considering the fact that the deceased was a Theyyam Artist, which has been substantiated by Exts.A1 to A4 read with the oral testimonies of PW1 to PW3, obviously even after the retirement of the deceased would have performed as a full time Theyyam Artist, which would have increased his salary by many fold. Therefore, I am of the firm opinion that the doctrine of split multiplier cannot be **MACA.No.722 OF 2013** **11** adopted in this case because the income of the deceased would not have been reduced consequent to his post retirement. 18. Likewise, considering the fact that the Tribunal has not awarded compensation under the conventional heads as well as not awarded any amount towards future prospects as per the law laid down by the Hon'ble Supreme Court and that the respondents have not preferred any cross-objection, I do not find any scope for interference with the impugned award passed by the Tribunal at this distance of time i.e. for a claim filed nearly 12 years back. Ultimately, the whole exercise would be only an arithmetical jugglery, which I do not propose to endeavour. The appeal is devoid of merits and is consequently dismissed. ma/17.3.2021 **Sd/-C.S.DIAS, JUDGE** ## **/True copy/**