High Court of KeralaDivision Bench2015-08-19Appeal allowed to the extent stated; enhanced/r...

The Oriental Insurance Company Limited v Rugmani, Thushara, Thusheeba, Srutheesh, Thayu

Case / Petition Number:MACA.No.2565 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R. Ramachandran Nair
K.P. Jyothindranath
Judgment Date: 2015-08-19
Court Decision / Holding: The appeal is allowed to the above extent. The amount of compensation is re-fixed as Rs. 11,86,125 (Rs. 9,01,125 for loss of dependency computed with revised structure plus Rs. 1,00,000 for loss of consortium, Rs. 1,00,000 for loss of love and affection, Rs. 25,000 for funeral expenses, Rs. 50,000 for loss of estate, and Rs. 10,000 for pain and suffering). The Insurance Company is directed to deposit the amount with interest, as awarded by the Tribunal, before the Tribunal within three months, and on such deposit, the respondents will be entitled to release of the amount. The distribution shall be as per the Tribunal’s ratio.
Final Disposition: Appeal allowed to the extent stated; enhanced/re-fixed compensation; deposit within three months; no costs awarded in the appeal.

Parties to the Case

Appellants / Petitioners

THE ORIENTAL INSURANCE COMPANY LIMITED, PALAKKAD

Respondents

RUGMANI
THUSHARA
THUSHEEBA
SRUTHEESH
THAYU

Legal Representation & Advocates

Counsels for Petitioners

• SRI. MATHEWS JACOB (SR.)
• SRI. P. JACOB MATHEW

Counsels for Respondents

• SRI. JACOB SEBASTIAN

Case Synopsis & Summary

This Motor Accidents Claims Appeal is filed by the Oriental Insurance Company Limited challenging the Motor Accidents Claims Tribunal, Palakkad award in OP(MV) No.969/2007, arising from the death of Gopalan, an Assistant Sub Inspector who died in a road accident on 4.9.2007 when his motorcycle KL-9P/6315 was struck by bus KL-13K/1536. The Tribunal awarded Rs. 13,43,700 in total compensation, including headwise sums, but the insurer contends that the Tribunal erred in applying a uniform multiplier of 11 for loss of dependency when the deceased was 51 years old with only four years of service left, arguing that retirement and pension should significantly affect the calculation. The respondents contend that split multiplier should not be adopted, but acknowledge the Tribunal’s awards under several heads and request consideration of additional amounts under loss of consortium, love and affection, estate and funeral expenses under a broader indulgence, citing Rajesh v. Rajbir Singh. The Kerala High Court references Sarla Varma’s principle of advantageous and disadvantageous circumstances and recent decisions (Oriental Insurance Co. v. Valsa) to justify revising the dependency loss. The Court ultimately recalculates the loss of dependency, applies pension considerations, and awards additional sums for non-economic heads, resulting in a total re-fixed compensation of Rs. 11,86,125 with interest, directing deposit within three months and sharing as per Tribunal’s ratio. The appeal is allowed to the above extent with no costs.

Provisions of Law Cited

Order 41 Rule 33, CPC

Legal Doctrines & Maxims

Advantageous and disadvantageous principle (Sarla Varma v. Delhi Transport Corporation)
Split multiplier concept – exceptional circumstances permissible (as discussed in the context of MACT jurisprudence)

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the Tribunal erred by applying a uniform multiplier of 11 for loss of dependency despite the deceased being 51 with only four years of service left, arguing that pension post-retirement reduces the earning period and that a split multiplier should be used only in exceptional circumstances. They submit that the fixed monthly income (Rs. 13,350) should not be used for the entire period and urge recalculation incorporating retirement pensions. They also challenge the Tribunal’s treatment of various heads and seek recalibrated compensation with a higher amount for pain and suffering, and for losses such as consortium, love and affection, and estate, consistent with the cited precedents. The insurer proposes re-fixation based on a shorter earning period and future pension, subject to the principles laid down in Sarla Varma.

Contentions of Respondents

The respondents challenge the idea of applying a split multiplier, arguing it should not be adopted merely to adjust the quantum. They rely on Rajesh v. Rajbir Singh to contend that reasonable compensation under heads like loss of consortium, love and affection, funeral expenses, and loss of estate can be justifiably revised within the court’s powers under Order 41 Rule 33 CPC. They contend that the Tribunal’s awards for consortium, love, and estate are adequate and that no additional heads showed significant miscalculation. They also point out that there was no cross-appeal by the claimants, but the court can nonetheless exercise its revisional power to fix a reasonable amount.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Sarla Varma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	Cited to support the principle of advantageous and disadvantageous circumstances in determining compensation.
Rajesh v. Rajbir Singh	2013 (3) KLT 89 (SC)	Positive	Cited to justify the court’s authority to revise compensation under heads such as loss of consortium, love and affection, and funeral expenses within the scope of Order 41 Rule 33 CPC.
Oriental Insurance Co. Ltd. v. Valsa	2015 (1) KLT 781	Positive	Cited as a contemporary decision supporting the approach to calculating and awarding compensation in light of retirement and pension considerations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 19TH DAY OF AUGUST 2015/28TH SRAVANA, 1937** ## **MACA.No. 2565 of 2012 ()** ## **------------------------AGAINST THE AWARD IN OP(MV) 969/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 04-02-2012** **APPELLANT(S):** **------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED PALAKKAD NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, METRO PALACE KOCHI 18** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** - **----------------------------** ## **1. RUGMANI** **W/O.LATE GOPALAN SRUDHEESH NIVAS, KOLLAYANKADE, CHATHAMANGALAM NENMARA PALAKKAD PIN 679 320** ## **2. THUSHARA** - **D/O.LATE GOPALAN, SRUDHEESH NIVAS, KOLLAYANKADE, CHATHAMANGALAM NENMARA, PALAKKAD PIN 679 320** ## **3. THUSHEEBA** - **D/O.LATE GOPALAN, SRUDHEESH NIVAS, KOLLAYANKADE, CHATHAMANGALAM NENMARA, PALAKKAD PIN 679 320** ## **4. SRUTHEESH** - **S/O.LATE GOPALAN, SRUDHEESH NIVAS, KOLLAYANKADE, CHATHAMANGALAM NENMARA PALAKKAD PIN 679 320** ## **5. THAYU** - **W/O.LATE KUNJU SRUDHEESH NIVAS, KOLLAYANKADE, CHATHAMANGALAM NENMARA, PALAKKAD PIN 679320** **R1 TO 5 BY ADV. SRI.JACOB SEBASTIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **T.R. RAMACHANDRAN NAIR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2565 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of August, 2015** ## **J U D G M E N T** ## **Ramachandran Nair, J.** This appeal is filed by the Insurance Company, aggrieved by the award in O.P.(M.V.)No.969/2007 on the file of the Motor Accidents Claims Tribunal, Palakkad. 2. The application claiming compensation was filed by the respondents 1 to 5 consequent on the death of one Sri.Gopalan on 4.9.2007 in an accident occurred when his motorcycle was hit by a bus. He was travelling in his motorcycle bearing registration No.KL-9P/6315 from Pudunagaram to Palakkad and at a place Elliyamkadu the bus bearing registration No.KL-13K/1536 hit the motorcycle. He was thrown down to the road and sustained serious injuries. He was taken to the District Hospital, Palakkad. But he succumbed to the injuries on the way. M.A.C.A.No.2565 of 2012 **-2-** 3. He was working as an Assistant Sub Inspector of Police and was aged 51 at the time of accident. The claimants claimed a total amount of Rs.14,75,000/- and the Tribunal has granted an amount of Rs.13,43,700/-. 4. We are concerned mainly with the attack against the amount granted towards loss of dependency. 5. It is submitted by the learned Senior Counsel for the Insurance Company Sri. Mathews Jacob that the deceased was aged 51 at the time of accident and he had only four years of remaining service. But the Tribunal adopted the multiplier of 11 through out, which cannot be justified. It is submitted that even though normally split up multiplier cannot be adopted, but going by the decisions of the Apex Court in exceptional circumstances the same can be done. On the facts of this case since he will not be earning amount by way of salary for the entire period and he would be earning only the monthly pension after retirement there is no justification for adopting the multiplicand at Rs.13,350/- for the entire period. M.A.C.A.No.2565 of 2012 **-3-** 6. Learned counsel for the respondents submitted that split multiplier cannot be adopted and hence the assessment cannot be said to be wrong. It is also submitted that towards loss of consortium only Rs.10,000/- has been granted and Rs.5,000/- only has been granted towards loss of love and affection and only an amount of Rs.5,000/- has been granted towards loss of estate and Rs.2,000/- has been granted funeral expenses. It is submitted that even though there is no appeal filed by the claimants in exercise of powers under Order 41 Rule 33 of the C.P.C. this Court can grant reasonable amount of compensation in the light of the decision of the Apex Court in **Rajesh v. Rajbir Singh [ 2013 (3) KLT 89 (SC)]** . It is also submitted that subsequent decisions following the same could also be relied upon by this Court to fix a reasonable amount of compensation under the heads loss of consortium, loss of love and affection, loss of estate and funeral expenses. It is also submitted that no amount has been granted towards pain and sufferings of the deceased. M.A.C.A.No.2565 of 2012 **-4-** 7. We have considered the rival submissions. 8. The age of the appellant was 51 and he was an Assistant Sub Inspector of Police. Therefore, he would have retired from service within a period of four years at the age of 55 years which was the age at the relevant time for retirement of the Government employees. The retirement being a certain event, it is an exceptional circumstance which can be considered by this Court. While fixing compensation, the Tribunal and this Court will have to consider the advantageous and disadvantageous. The said principle is clear from paragraph 45 of the judgment in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** . 9. This Court has considered the relevant aspects in a recent judgment reported in **Oriental Insurance Co. Ltd. v. Valsa [2015 (1) KLT 781]** . 10. Apart from the same the monthly salary which the deceased was earning will not be available to him after attaining the age of superannuation. Since the monthly ## M.A.C.A.No.2565 of 2012 **==> picture [12 x 8] intentionally omitted <==** pension normally will be 50%, we will have to reckon the said amount for the remaining period. Therefore, the monthly income fixed at Rs.13,350/- will have to be reckoned for fixing the quantum by adopting the multiplier of 4 and Rs.6,675/- has to be reckoned for adopting the amount for the remaining period of 7. By re-fixing the compensation in that manner the total amount eligible to be granted towards loss of dependency will be the following: 13350x12x4x3/4 = 4,80,600/- 6675x12x7x3/4 = 4,20,525/- Total = 9,01,125/- We also grant an amount of Rs.1 lakh each towards loss of consortium and loss of love and affection and award an amount of Rs.25,000/- towards funeral expenses, Rs.50,000/- towards loss of estate and Rs.10,000/- towards pain and sufferings of the deceased. The re-fixed amount of compensation will be the following:- M.A.C.A.No.2565 of 2012 **-6-** |**Head of claim**|**Amount re-fixed by this Court** **Rs.**| |---|---| |Loss of dependency|13350x12x4x3/4 480600 6675x12x7x3/4 420525 Total 901125| |Loss of consortium|100000| |Loss of love and affection|100000| |Funeral expenses|25000| |Loss of estate|50000| |Pain and suffering|10000| |**Total**|**11,86,125** **(Rupees eleven lakhs** **eight six thousand one** **hundred and twenty** **five only)**| The said amount will carry interest at the rate as now awarded by the Tribunal. There will be a direction to the Insurance Company to deposit the amount of compensation with interest, less the amount already deposited, before the Tribunal within a period of three months. On such deposit being made, the respondents will be entitled for the release of the amount. The amount will be shared as per the ratio provided by the Tribunal. M.A.C.A.No.2565 of 2012 **-7-** The appeal is allowed to the above extent. There will be no order as to costs in the appeal. Sd/- **T.R. RAMACHANDRAN NAIR JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/