The Oriental Insurance Company Limited v. Renjith Mohan, Rajesh Mohan, Manju Mohan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY ,THE 13TH DAY OF NOVEMBER 2018 / 22ND KARTHIKA, 1940** ## **MACA.No. 2331 of 2015** **AGAINST THE AWARD IN OP(MV) NO.849/2007 DATED 3.3.2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/2ND RESPONDENT:** **THE ORIENTAL INSURANCE COMPANY LIMITED, KARAIKUDY, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANTS:** |**1**|**RENJITH MOHAN**| |---|---| ||**S/O. A.MOHANKUMAR, PRASEEDA, KALANJOOR MURI,**| ||**KALANJOOR VILLAGE, PATHANAMTHITTA - 689 645.**| |**2**|**RAJESH MOHAN**| ||**S/O.A.MOHANKUMAR, PRASEEDA, KALANJOOR MURI,**| ||**KALANJOOR VILLAGE, PATHANAMTHITTA - 689 645.**| |**3**|**MANJU MOHAN**| ||**D/O. LATE RATNAVALLY, PRASEEDA, KALANJOOR MURI,**| ||**KALANJOOR VILLAGE,**| ||**PATHANAMTHITTA - 689 645.**| **BY ADVS. SRI..ARUN.B.VARGHESE [CAVEATOR] SRI.ARUN.B.VARGHESE SRI..ARUN.B.VARGHESE CAVEATOR SRI.JAYKAR.K.S. SRI.M..KIRANLAL CAVEATOR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 2331 of 2015 2 ## **JUDGMENT** This appeal is filed by the 2[nd] respondent, who was the insurer before the Motor Accident Claims Tribunal, Pathanamthitta (for short 'the Tribunal'). The appeal is directed against the award dated 3.3.2015 in O.P(MV) No.849/2007 on the files of the Tribunal. The facts of the case in brief are as follows: At 7.45 pm on 7.1.2007, Mrs.Ratnavalli, who was pillion riding on a scooter bearing registration No.KL-03/N-2311 ridden by her son was knocked down by a van bearing registration No.TN-65B/317 and she succumbed to the fatal injuries received by her in the accident. She was survived by her husband and three children. Alleging that the accident was occurred due to the rash and negligent driving of the van by its driver, the legal heirs who survived her had filed an application as O.P(MV) No.849/2007 before the Tribunal seeking for a sum of Rs.69,06,704/- as compensation. 2. The driver-cum-owner and insurer of the van were arrayed as respondents 1 and 2 in the claim petition preferred before the Tribunal. The 1[st] respondent remained ex-parte. The 2[nd] respondent had filed a written statement before the Tribunal MACA.No. 2331 of 2015 3 admitting insurance coverage of the van as on date of accident. The age, occupation and monthly income of the deceased were disputed. The negligence on the part of the 1[st] respondent was also disputed. 3. Before the Tribunal, the petitioners had adduced oral evidence as PW1 and documentary evidence as Exts.A1 to A19. Respondents did not adduce any evidence. On appreciation of the evidence on record, the Tribunal had arrived at a finding that the driver of the van was rash and negligent and responsible for the accident. The Tribunal had also found the petitioners entitled to get compensation from the respondents and arrived at a sum of Rs.57,89,650/-. The 2[nd] respondent insurer has approached this Court in the captioned appeal contending that the sum fixed by the Tribunal is unreasonable and disproportionate to the sufferings of the petitioner and interference and modification is called for. 4. Sri.George Cherian, the learned Senior Counsel has contended that the sum fixed by the Tribunal as compensation is adequate. According to him, the Tribunal went wrong in fixing the monthly income of the deceased as Rs.49,000/- for computation of compensation. It is contended by the counsel that as indicated from the evidence, the deceased was unemployed at the relevant time of accident as she was MACA.No. 2331 of 2015 4 available locally to take care of her ailing husband. According to the learned counsel the Tribunal is highly unjustified to add 15% to the monthly income towards future prospects. The deceased was survived by her husband and three children. The husband also died during the pendency of the claim petition. But the Tribunal had deducted 1/4[th] of the monthly income in consideration of the personal expenses likely to be met by the deceased, had she been alive, overlooking the factum that the husband died during the pendency of the claim petition. The Tribunal ought to have deducted 1/3[rd] of the monthly income in consideration of the personal expenses likely to be incurred by the deceased, had she been alive. The learned counsel contended based on the evidence available on record that the Tribunal ought to have adopted split multiplier method taking into consideration of the five year duration of service left for the deceased to retire, had she been alive. The learned counsel has also sought for a reduction of the amount awarded as compensation under the conventional heads, in view of the decision of the Apex Court in **National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT 662 (SC)].** Raising contentions as above, the learned counsel urged this Court to interfere with the impugned award and to make necessary modifications in the quantum of compensation awarded by it. MACA.No. 2331 of 2015 5 5. Sri.Arun B.Varghese, the learned counsel representing the claimants has submitted that the Tribunal has arrived at the compensation, after correctly appreciating the evidence on record. According to him, the multiplier and multiplicand have been correctly applied to arrive at the compensation payable and the award is not required to be modified. It is also contended by the learned counsel that a modification of the award in view of **Pranay Sethi** 's case is also totally uncalled for in the case on hand as the Tribunal has awarded only reasonable amount under conventional heads. Accordingly, the learned counsel pleaded for confirmation of the award. 6. In the backdrop of the rival contentions advanced, it is relevant to have a scrutiny of the evidence on record. As said earlier, the evidence available includes the oral evidence of the son of the deceased as PW1 and documentary evidence of Exts.A1 to A19. The deceased was survived by three children and all of them were majors as on date of accident. Deceased was evidenced as aged 53 years at the time of her death. To prove her age, petitioners have produced Ext.A13 passport, which reveals her date of birth as 30.8.1953. Therefore, there cannot be any dispute regarding her age at the time of death. It being 53, appropriate multiplier will be 11. The Tribunal has correctly taken 11 itself as the multiplier. The multiplicand MACA.No. 2331 of 2015 6 factor is disputed by the learned counsel for the reason that the monthly income fixed is a higher sum and 1/4[th] of the same was deducted therefrom in consideration of the personal expenses. 15% taken towards future prospects is not in dispute as it gained support from the dictum in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)].** The Tribunal has taken Rs.49,000/- as monthly income of the deceased. The fixation of Rs.49,000/- as monthly income by the Tribunal is perfectly justified in view of the documentary evidence let in by the petitioner as Exts.A18 and A19. It is evidenced from Ext.A19, a certificate issued by the employer of the deceased that she is free to work till she reaches her age of 65 years, provided she is capable enough and willing to continue. No evidence is available to this Court at present to take a view regarding her inability physically or in any other way to continue in service. Therefore, there is likelihood of the lady to continue to work till 65 years had her life, not been taken away by the accident. The Tribunal has deducted 1/4[th] from the monthly income arrived, in consideration of the personal expenses likely to be incurred by the deceased, had she been alive. It is evident from the impugned award that the husband of the deceased died during the pendency of the claim petition, prior to resorting to adduce evidence. Therefore, the deceased at the time of consideration MACA.No. 2331 of 2015 7 of the application on merits was only survived by petitioners 2 to 4, who are her children. When viewed in that perspective, the deduction of 1/4[th] towards personal expenses is without any legal basis and is liable to be corrected as 1/3[rd] . The Tribunal ought to have deducted 1/3[rd] of the income towards personal expenses. When the monthly income is taken as Rs.49,000/- and 15% of it is added towards future prospects and 1/3[rd] deducted therefrom and fixed annually, the multiplicand will be Rs.37,567/-. It has come out in evidence that the deceased if survived, would have 12 more years of service. The multiplier corresponding to her age being 11 and if split multiplier method is resorted to, the multiplier would be higher than 11. Therefore the split multiplier method is avoided. The multiplicand of Rs.4,50,804/(Rs.37,567/- x 12), when multiplied by the multiplier 11, a sum of Rs.49,58,844/- is arrived at and that is payable to the petitioners under the head loss of dependency. The amount already arrived at by the Tribunal under the head loss of dependency as per the impugned award being Rs.55,78,650/-, there will be a reduction of Rs.6,19,806/- therefrom and the amount now payable will be Rs.49,58,844/-. 7. The further attack was on the compensation awarded by the Tribunal under the conventional heads, funeral expenses MACA.No. 2331 of 2015 8 and loss of estate. The attack was raised based on the dictum in **Pranay Sethi** 's case supra. In the decision, the dictum laid was that Rs.15,000/- is a reasonable sum to be considered as compensation under each of the heads, viz., funeral expenses and loss of estate. In the case on hand, grant of compensation under the respective heads being Rs.25,000/- and Rs.1,00,000/-, those are likely to be reduced respectively by Rs.10,000/- and Rs.85,000/-. When the compensation is re-assessed in the above manner, there will be a reduction of a sum of Rs.7,14,806/- from the amount already awarded by the Tribunal. Therefore, the total sum found payable to the petitioners in interference in this appeal is only Rs.50,74,844/- . In the result, the appeal stands allowed in part. Petitioners are entitled to get a sum of Rs.50,75,000/- (Rupees Fifty lakhs seventy five thousand only) with interest at the rate of 9% per annum (as taken by the Tribunal itself in the impugned award) from the date of the claim petition till the date of realisation. The appellant/insurer shall deposit the sum with interest as directed herein above, within a period of three months from the date of receipt of a copy of this judgment. It is submitted by the learned counsel that 25% of Rs.57,89,650/- as arrived at by the Tribunal in the original award has already been deposited. In the aforesaid circumstances, the appellant is liable only to MACA.No. 2331 of 2015 9 deposit the balance amount with interest at the rate as directed within the period as stipulated hereinabove. The parties shall bear their respective costs. **Sd/-** **MARY JOSEPH JUDGE** ab