The Oriental Insurance Co. Ltd v. Sindhu W/o Subhash Kumar and Others, MACA No. 1791 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 2[ND] DAY OF DECEMBER 2021/ 11TH AGRAHAYANA, 1943** **MACA NO. 1791 OF 2015** **AGAINST THE AWARD IN OPMV 1981/2012 OF IV ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/3RD RESPONDENT:** THE ORIENTAL INSURANCE CO. LTD NEDUMANGADU, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI ## **RESPONDENTS/CLAIMANTS:** 1 SINDHU W/O. SUBHASH KUMAR, NANDANAM (MACHANATTU), PANMANA P.O., CHAVARA, KOLLAM - 691 583. 2 ARATHY SUBHASH D/O.SUBHASH KUMAR, NANDANAM (MACHANATTU), PANMANA P.O., CHAVARA, KOLLAM - 691 583. 3 ASWATHY SUBHASH D/O. SUBHASH KUMAR,NANDANAM (MACHANATTU), PANMANA P.O., CHAVARA, KOLLAM - 691 583. 4 SUBHADRA W/O. KUMARAN, NANDANAM (MACHANATTU), PANMANA P.O., CHAVARA, KOLLAM - 691 583. BY ADVS. SRI.PRATHEESH.P SMT.RENY ANTO THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2021, ALONG WITH CO.124/2018, THE COURT ON 2.12.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.1791 OF 2015 & Cross Objection No.124 OF 2018 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943 CO NO. 124 OF 2018** **IN MACA 1791 OF 2015 AGAINST THE AWARD IN OPMV 1981/2012 OF IV ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **cROSS OBJECTORS/RESPONDENTS/CLAIMANTS:** 1 SINDHU, W/O SUBHASH KUMAR AGED 49 YEARS NANDANAM(MACHANATTU), PANMANA P. O, CHAVARA KOLLAM CHAVARA, KOLLAM, PIN - 691583 2 ARATHY SUBHASH, D/O SUBHASH KUMAR AGED 22 YEARS D/O. SUBHASH KUMAR, NANDANAM, (MACHANATTU), PANMANA P.O, CHAVARA, KOLLAM-691 583. 3 ASWATHY SUBHASH,D/O SUBHASH KUMAR AGED 20 YEARS D/O. SUBASH KUMAR, NANDANAM, (MACHANATTU), PANMANA P.O, CHAVARA, KOLLAM-691 583. 4 SUBHADRA W/O. KUMARAN, NANDANAM (MACHANATTU), PANMANA P.O, CHAVARA, KOLLAM-691 583. BY ADV.SRI PRATHEESH.P SRI RENY ANTO MS.ARCHANA K.S. ## **RESPONDENT/APPELLANT/3RD RESPONDENT:** THE ORIENTAL INUSRANCE CO.LTD NEDUMANGADU REP. BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH KOCHI 18 THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2021, ALONG WITH MACA.1791/2015, THE COURT ON 2.12.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.1791 OF 2015 & Cross Objection No.124 OF 2018 3 ## **T.R. RAVI, J.** ## **-------------------------------------------M.A.C.A.No.1791 OF 2015** ## **& Cross Objection No.124 OF 2018** -------------------------------------------Dated this the 2[nd] day of December, 2021 ## **JUDGMENT** The 3[rd] respondent Insurance Company in OP(MV) No.1981 of 2012, has filed this appeal challenging the award passed by the Tribunal as excessive. The cross objection has been filed by the claimants seeking enhancement of the compensation awarded by the Tribunal. The parties are referred to as claimants and insurer. 2. Heard the counsel for insurer and the claimants. 3. The 1[st] claimant's husband, while travelling on his motorbike on 22.11.2012, was hit by a Tata HGV vehicle and he sustained serious injuries. The injured was taken to hospital. He succumbed to the injuries, while undergoing the treatment. The claimants preferred a claim petition. The Tribunal awarded a sum of Rs.73,20,625/- as compensation. 4. The deceased was aged 51 years at the time of the accident. He was working as a Loco Pilot (M) in the Indian Railways. He had 9 years of service remaining at the time of his death. The claimants are the widow, 2 daughters and the mother M.A.C.A.No.1791 OF 2015 & Cross Objection No.124 OF 2018 4 of the deceased, who are all depending upon the deceased. The counsel for insurer pointed out that the Tribunal allowed a sum of Rs.25,000/- towards funeral expenses, which ought to have been Rs.15,000/-. So also, the compensation for loss of estate ought to have been Rs.15,000/- instead of Rs.50,000/- allowed by the Tribunal. It is also pointed out that towards compensation for love and affection and consortium a total amount of Rs.3,50,000/- has been awarded while the claimants would together be entitled to a sum of Rs.1,60,000/- under that head. Hence a sum of Rs.1,90,000/- has been awarded in excess. The next contention put forward is that, the Tribunal went wrong in applying the multiplier of 11. It is submitted that the split multiplier method of 9+2 has to be adopted since the deceased had 9 years of service left. It is also submitted that 20% of the amount ought to have been deducted towards income tax instead of 10% deducted by the Tribunal. The counsel for insurer relied on the decision of a Division Bench of this Court in **Kumaran v. Roy Mathew** reported in **[2017(1)KLT 668]** to submit that the considerable reduction in the income which would definitely fall in the life of the deceased after attaining superannuation is a factor which is to be taken note of by the Tribunal at the time of applying the multiplier and hence M.A.C.A.No.1791 OF 2015 & Cross Objection No.124 OF 2018 5 it is not wrong to apply a split multiplier in such cases. Reliance is also placed on the judgment of a Division Bench of this Court in **Oriental insurance Co Ltd v. Valsa** reported in **[2015(1) KLT 781]** , where, in the case of a person who died at the age of 47 years, the Court applied the monthly income for a period of 10 years and 50% of their monthly income as a multiplicand for the balance 3 years as per the applicabe multiplier of 13. The counsel for the claimants relied on the decision in **Madhusudhan K.R. and others v. Administrative officer and another** reported in **[2011 KHC 4140], Puttamma and others v. K.C.Narayana Reddy and another** reported in **[2014(1) KLT 738]** and **Shyno M.Aykara @ Sheelamma Thomas & others v. Sumol Roy and others** reported in **[2020 4 KHC 358]** to submit that the split multiplier method should not be adopted. 5. In **Madhusudhan** ( **supra** ), the Hon'ble Supreme Court reversed the judgment of the High Court which applied the split multiplier method, stating that no reasons are disclosed. In **Puttamma (supra)** , the above decision was followed and the Apex Court held that the Tribunal should not apply any split multiplier in a routine course in the absence of **any specific reason and evidence on record** (emphasis supplied). In M.A.C.A.No.1791 OF 2015 & Cross Objection No.124 OF 2018 6 **Kumaran (supra)** the Division Bench held that specific reasons based on evidence on record is available in the case for applying split multiplier. In the case on hand, there is neither any pleading on the part of the insurer that the split multiplier should be adopted nor any evidence available on record for the said purpose. The Tribunal has hence not followed the split multiplier method and applied the multiplier as per the decision in **Sarla Verma vs Delhi Transport Corporation and others [2010 (2) KLT 802]** . In such circumstances, the judgment of the Division Bench in **Kumaran (supra)** will have no application and following **Madhusudhan (supra)** and **Puttamma(supra)** , the contention of the insurer that split multiplier ought to have been adopted is only to be rejected. 6. Regarding the contention that 20% of the income should be deducted towards tax, the Tribunal has given specific reason for deducting 10% towards tax. The deduction was made on the basis of the evidence tendered by PW2, who was the Inspector of Ward III, Kollam Income Tax Office. The deduction was after considering the normal tax that was being paid by the deceased. Hence, no interference is warranted regarding the said finding also. M.A.C.A.No.1791 OF 2015 & Cross Objection No.124 OF 2018 7 7. However, on going through the award, it can be seen that the Tribunal has awarded **Rs.10,000/-** in excess under the head funeral expenses, and **Rs.35,000/-** in excess under the head loss of estate. So also, an excess amount of **Rs.1,20,000/-** has been awarded under the head compensation for love and affection to minor children, an excess amount of **Rs.10,000/-** has been awarded under the head compensation for love and affection to mother and an excess amount of **Rs.60,000/-** has been awarded under the head compensation for loss of consortium. The above amounts paid in excess are liable to be deducted from the total compensation awarded. Though in the cross objection, the claimants have challenged the deduction of 10% towards income tax and the amount of monthly income adopted, I am of the opinion that the Tribunal has awarded just and reasonable compensation under the other heads of compensation. 8. In the result, the appeal and the Cross Objection are allowed in part and the amount of compensation awarded by the Tribunal is deducted by a sum of **Rs.2,35,000/-** and the compensation awarded is refixed as **Rs.70,85,625/-** with interest as specified in the award. The Insurance Company shall deposit the balance amount on the basis of the award as modified in this M.A.C.A.No.1791 OF 2015 8 & Cross Objection No.124 OF 2018 appeal, after deducting the amounts already deposited as per orders of this Court, within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the claimants liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the claimants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn