United India Insurance Company Limited v. Ajitha Kumari, Neethu and Vishakh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944** ## **MACA NO. 1922 OF 2019** **OPMV 390/2017 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL,KALPETTA** ## **APPELLANT/S:** UNITED INDIA INSURANCE COMPANY LIMITED S.BATHERI NOW REPRESENTED BY ITS REGIONAL MANAGER,REGIONAL OFFICE,'SHARANYA',HOSPITAL ROAD,KOCHI-11. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW ## **RESPONDENT/S:** 1 AJITHA KUMARI,W/O.LATE CHANRAN.P.M,PANAPPADI HOUSE,KALLOOR, NOOLPUZHA.P.O,S.BATHERI TALUK,PIN-673592. 2 NEETHU,D/O.LATE CHANDRAN.M.P,PANAPPADI HOUSE,KALLOOR,NOOLPUZHA.P.O, S.BATHERI TALUK,PIN-673592. 3 VISHAKH,S/O.LATE CHANDRAN.P.M,PANAPPADI HOUSE,KALLOOR,NOOLPUZHA.P.O, S.BATHERI TALUK,PIN-673592. (NO RELIEFS AR CLAIMED AGAINST RESPONDENTS 1 AND 2 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY AR NOT MADE PARTIES IN THIS APPEAL). BY ADVS.PRIYA ELIZABETH BABU BABU MATHEW (WAYANAD)(K/674/1979) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1922 OF 2019** -2- ## **JUDGMENT** (Dated this the 14[th] day of October 2022) The 3[rd] respondent, the insurer in O.P.(M.V.) No.390 of 2017 on the files of MACT, Wayanad is the appellant. The Tribunal awarded a total sum of Rs.35,61,472/- with interest at the rate 8% from the date of petition as compensation for the death of the husband of first respondent and father of respondent Nos.2 and 3, who died in a road accident which happened on 25.4.2017 while he was riding a motor cycle bearing registration No.KL-73-A2441 from Kalloor towards Mullankolly direction and hit by a bus with registration No.KL-12-D.6199. 2. The two contentions raised by the senior counsel for the appellant, Sri Jacob Mathew is that since deceased **MACA NO. 1922 OF 2019** Chandran died of bodily injuries, the appellants are not entitled for pain and suffering, and hence, the amount of Rs.10,000/- awarded towards pain and suffering is to be set aside. The next contention raised is that the deceased was aged 57 years at the time of accident and he was working as an office assistant in Kerala Gramin Bank, Mullankolli branch earning Rs.46,752/- per month as salary. As per the service conditions of the bank the deceased had to retire at the age of 60 years and in such a situation the Tribunal ought to have applied the split multiplier method for calculating the compensation for loss of dependency. The deceased was aged 57 and the proper multiplier is 9 and in such a situation, the Tribunal ought to have split the multiplier 9 as 3 and 6 and applied for calculating the loss of dependency. The Tribunal did not accept the said **MACA NO. 1922 OF 2019** argument and relying on the a judgment of the Apex court in **D.Vijaya @ Vijayalakshmi and others v. Royal Sundaram Alliance Insurance Company Limited (S.L.P. (Civil) No.25494 of 2015)** , rejected the argument of the Insurance company to apply split multiplier. 3. The counsel for the respondents contends that even after retirement at the age of 60 years he would have worked and earned income at least for 10 years thereafter. Therefore taking into consideration the said aspect the Tribunal correctly applied split multiplier as stated in _**National Insurance Company v. Pranay Sethi**_ [ _**2017 (16) SCC 680**_ **]** . Moreover though the deceased died in the accident, he had suffered much pain and suffering between the time of accident and his death and hence, the **MACA NO. 1922 OF 2019** -5- compensation awarded under the head pain and suffering is also correct. 4. Heard. 5. **Jayasree N. & others v. Cholamandalam MS General Insurance Company Ltd (2021 (6) KHC 163)** wherein one of the questions raised by the Apex Court was whether the High court was justified in applying split multiplier? The Apex court, after referring to a number of decisions right, from **Sarla Verma(Smt.) & another v. Delhi Transport Corporation & another [(2009) 6 SCC 121]** held as follows: “22. The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/- (Rupees eighty-three thousand eight hundred thirty-one only). The ## **MACA NO. 1922 OF 2019** -6- evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a firstclass holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics. Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement. 23. In Sarla Verma, this Court has held that while calculating the compensation, the courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted. 24. In Reshma Kumari & Ors. vs. Madan Mohan & Anr.", a three-Judge Bench of this Court has approved the judgment in Sarla Verma. 25. In Pranay Sethi, this Court has not only approved the aforesaid observations made in Sarla Verma but also held as under: ## **MACA NO. 1922 OF 2019** -7- 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component." 26. In K.R. Madhusudhan and Ors. vs. Administrative Officer and Anr., this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under: 8. In Sarla Verma judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called ## **MACA NO. 1922 OF 2019** -8- it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional circumstances. cases involving special circumstances. 9. We are of the opinion that the rule of thumb evolved in Sarla Verma is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same." 27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr. this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus: "32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier. 33. In K.R. Madhusudhan v. Administrative Officer this Court held as follows: (SCC p. 692, paras 14-15) **MACA NO. 1922 OF 2019** -9- "14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal. reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6. 15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method. 28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of ## **MACA NO. 1922 OF 2019** -10- calculation being adopted. In Pranay Sethi, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case.” In view of the latest decisions of the Apex court mentioned above the Tribunal was justified in not accepting the contention of the appellant that split multiplier should be accepted for calculating compensation for loss of dependency. 6. As far as pain and suffering is concerned, the Tribunal awarded Rs.10,000/-. The Apex court in **Sarla Verma (Supra)** held that in case of death of injured in a road accident, the legal heirs of the deceased are not entitled for compensation of pain and suffering. Hence, the **MACA NO. 1922 OF 2019** -11- appellant must succeed as far as compensation for pain and suffering is concerned. In the result, the appeal is allowed in part, and the compensation awarded under the head pain and suffering to the tune of Rs.10,000/ is alone set aside. The contention of the appellant that loss of earning and dependency should be calculated using the split multiplier is rejected. Compensation under all other heads are found to be reasonable, and no interference is warranted. sd **BASANT BALAJI, JUDGE** _dl/downloads_