The United India Insurance Co. Ltd. v. Shiny and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ## **`MACA NO. 898 OF 2010`** ``` AGAINST THE AWARD IN OPMV 503/2006 OF ADDITIONAL .DISTRICT COURT & MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA DATED 20.01.2010`** ## **`APPELLANT/3RD RESPONDENT:`** ``` THE UNITED INDIA INSURANCE CO.LTD. CHANGANASSERY BRANCH, REPRESENTED BY THE ASSISTANT MANAGER, UNITED INDIA INSURANCE CO. LTD, OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM. ``` ``` BY ADV SMT.DEEPA GEORGE ``` ## **`RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2:`** - `1 SHINY, W/O.GEORGE, THEKKEDATHU HOUSE, PADINJARE KODIKULAM.P.O,, VANDAMATTOM KARA, KODIKULAM VILLAGE.` - `2 NITHIN GEORGE, S/O. GEORGE (MINOR) REPRESENTED BY NATURAL GUARDIAN AND NEXT FRIEND, SHINY, W/O. GEORGE, THEKKEDATHU HOUSE, PADINJARE KODIKULAM.P.O,-DO-` - `3 NEENA GEORGE D/O. GEORGE (MINOR) REPRESENTED BY NATURAL GUARDIAN AND NEXT, FRIEND SHINY, W/O. GEORGE, -DO-` - `4 SONA GEORGE D/O. GEORGE (MINOR) REPRESENTED BY NATURAL GUARDIAN AND NEXT, FRIEND SHINY, W/O. GEORGE, -DO-` - `5 T.O. MATHAI AGED 82 YEARS THEKKEDATHU HOUSE, KARIMANNOOR VILLAGE, THODUPUZHA TALUK, KARIMANNOOR KARA.` - `6 ALIKUTTY MATHAI W/O. MATHAI THEKKEDATHU HOUSE, -DO-` - `7 SUNIL S/O. THOMAS MOOTHEDATHU HOUSE, CHIRAKKADAVU.P.O, PONKUNNAM.` - `8. SIJU P.S. S/O.SREEDHARAN, PARISUKKULAM MURIYIL HOUSE, ERATHAUVADAKARA P.O., MANIMALA, KOTTAYAM DIST. BY ADVS.SRI.T.J.MICHAEL SRI.JOSE MATHEW KAVALAKALAM SRI.R.KRISHNAKUMAR (CHERTHALA)` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ``` - `15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` ``` MACA NO. 898/2010 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 15[th] day of March, 2023.** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Thodupuzha (for short, ‘the Tribunal’) on 20.01.2010 in O.P.(M.V) No.503/2006. The appellant is the insurer of the offending vehicle, who was the 3[rd] respondent in the Original Petition. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. According to Smt.Deepa George, the learned counsel for the appellant, compensation for loss of dependency was not calculated by the Tribunal in conformity with the principles laid down by the Apex Court in **Sarla Verma V. Delhi Transport Corporation** ``` MACA NO. 898/2010 ``` ``` 3 ``` **[2010 (2) KLT 802 (SC)]** and therefore, award passed for a sum of `20,41,000/- as compensation in the wrong calculation is liable to be set aside. According to her, the victim at the relevant time when he lost his life in the motor accident was aged only 43 years and therefore, he had 12 years’ service left and therefore, the Tribunal is unjustified in taking the monthly income as `12,000/- for that period. 4. The learned counsel thus canvassed for applying the split multiplier method adopted by the Apex Court in **Puttamma Vs. K.L Narayana Reddy and Another** [(2013) 15 SCC 45)]. According to her interest granted at the rate of 9% per annum is also excessive and it has to be reduced. 5. The learned counsel urged furthermore that the entire salary was taken into consideration by the Tribunal without the amount paid towards income tax and ``` MACA NO. 898/2010 ``` ``` 4 ``` professional tax, deducted therefrom and therefore, the direction of the Apex Court in **Sarla Verma** supra is violated. According to her, though the petitioners are not entitled to get compensation under the head pain and sufferings of the victim of the motor accident, who died, `5,000/- stood awarded by the Tribunal mistakenly is liable to be deducted. 6. The learned counsel urged during the course of argument that though the Tribunal is bound to grant compensation under conventional heads in accordance with the direction of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi And Others [2017 (4) KLT 662 (SC)],** it declined to award so and therefore, is unjustified. 7. The learned counsel for the 3[rd] respondent contended on the contrary that the compensation stood ``` MACA NO. 898/2010 ``` ``` 5 ``` awarded by the Tribunal is just and reasonable and therefore, interference is totally uncalled for. According to him, in **R.Valli and Others V. Tamil Nadu State Transport Corporation LTD. [2022 (5) (SCC) 107]** , the Apex Court has discouraged the Tribunals from following the split multiplier method in claims seeking compensation. The Apex Court declared the decisions of the year 2000, 2011 and 2014, wherein the split multiplier method has been followed for calculation of compensation as no longer good law. The Apex Court in the case cited has also directed the Tribunals to follow the dictum in **Pranay Sethi** supra **,** where the dictum in **Sarla Verma** supra was confirmed. In both these cases, the direction issued by the Apex Court was to adopt the multiplier appropriate to the age of the deceased for calculation of compensation. ``` MACA NO. 898/2010 ``` ``` 6 ``` 8. It is also found that the compensation for loss of dependency was calculated by the Tribunal by fixing `12,000/- as the monthly income of the deceased. What was the basis for fixing `12,000/- is not found explained by the Tribunal in the impugned award. For the reasons, the impugned award is set aside and the compensation payable to the petitioners is calculated afresh. 9. A Certificate issued by the Deputy Director of Panchayath, Kottayam on 16.10.2008 is produced by the petitioners and got marked in evidence as Ext.A7. It was certified there that the deceased at the relevant time of the motor accident was getting `6,488/- as net income. Therefore, this Court finds it appropriate to consider `6,488/- as his monthly income for the purpose of calculation of compensation for loss of dependency. Challenge having not been raised against the age of the ``` MACA NO. 898/2010 ``` ``` 7 ``` victim considered by the Tribunal as 43 years, it is maintained and 30% is added to it having due regard to loss of future prospects of the victim due to his untimely death. Thus `8,434/- [(`6,488/- + (`6,488/- x 30%)] is arrived at. The multiplier of 14 adopted by the Tribunal being correct and proper is maintained. Since six family members survived the victim, 1/4[th] is deducted in consideration of personal expenditure, liable to be spent by the deceased, had he been alive. In the calculation made on the basis of the factors referred to above, `10,62,684,/(`8,434/- x 12 x 14 x 3/4) is arrived at as the compensation payable towards loss of dependency. 10. As per **Pranay Sethi** supra, the petitioners are entitled to get `16,500/- each as compensation towards loss of estate and funeral expenses and `44,000/- per head towards loss of consortium provided, the members ``` MACA NO. 898/2010 ``` ``` 8 ``` surviving the deceased are his spouse, parents and children. Thus, petitioners will get `16,500/- each as compensation towards loss of estate and funeral expenses and the wife, three children and parents of the deceased together will get `2,64,000/- (`44,000/- x 6) as compensation towards loss of consortium. 11. In the result, appeal is allowed and a judgment is passed for `13,59,684/- (`10,62,684/- + `16,500/- + `16,500/- + `2,64,000/-) as the total compensation payable to the petitioners, which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent shall pay the compensation arrived at as above with interest accrued on it and proportionate costs, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions ``` MACA NO. 898/2010 ``` ``` 9 ``` issued by this Court in Circular No.03/2019 dated 06.09.2019. ``` Sd/- ``` **MARY JOSEPH JUDGE** JJ