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study material for LLB, Summaries of Family Law

Osmania UniversityFamily Law

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Kerala High Court
Vijayakumari vs Reliance General Insurance Co. ... on 27 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
MACA NO. 1502 OF 2016
AGAINST THE AWARD IN O.P.(M.V) NO.452/2014 DATED 21.01.2016 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANT/3RD RESPONDENT:
RELIANCE GENERAL INSURANCE CO. LTD, CALICUT,
REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,
ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SRI.ALEXY AUGUSTINE
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS/CLAIMANTS:
1 VIJAYAKUMARI, W/O.BALAKRISHNAN, NELLIKKUNNATH HOUSE,
VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK,
PALAKKAD DT. 678 595.
2 BALAKRISHNAN, S/O.AYYAPPAN, NELLIKKUNNATH HOUSE,
VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK,
PALAKKAD DT. 678 595.
3 BINDHYA BALAKRISHNAN, D/O.BALAKRISHNAN,
NELLIKKUNNATH HOUSE, VAZHEMPURAM P.O., KARAKURUSSI,
OTTAPALAM TALUK, PALAKKAD DT. 678 595.
BY ADVS.
SRI.K.B..ARUNKUMAR
THIS M.A.C.A HAVING BEEN FINALLY HEARD ON 27.07.2021, ALONG WITH CO.5/2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1502 of 2016
and C.O. No.5 of 2020
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
CO NO. 5 OF 2020
AGAINST THE AWARD DATED 21.01.2016 IN O.P (M.V) NO.452/2014
ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM
Vijayakumari vs Reliance General Insurance Co. ... on 27 July, 2021
Indian Kanoon - http://indiankanoon.org/doc/76815138/ 1
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pf5

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Kerala High Court

Vijayakumari vs Reliance General Insurance Co. ... on 27 July, 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943

MACA NO. 1502 OF 2016

AGAINST THE AWARD IN O.P.(M.V) NO.452/2014 DATED 21.01.2016 OF

MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD

APPELLANT/3RD RESPONDENT:

RELIANCE GENERAL INSURANCE CO. LTD, CALICUT,

REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,

ERNAKULAM.

BY ADVS.

SRI.GEORGE CHERIAN (SR.)

SRI.ALEXY AUGUSTINE

SMT.LATHA SUSAN CHERIAN

SMT.K.S.SANTHI

RESPONDENTS/CLAIMANTS:

1 VIJAYAKUMARI, W/O.BALAKRISHNAN, NELLIKKUNNATH HOUSE,

VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK,

PALAKKAD DT. 678 595.

2 BALAKRISHNAN, S/O.AYYAPPAN, NELLIKKUNNATH HOUSE,

VAZHEMPURAM P.O., KARAKURUSSI, OTTAPALAM TALUK,

PALAKKAD DT. 678 595.

3 BINDHYA BALAKRISHNAN, D/O.BALAKRISHNAN,

NELLIKKUNNATH HOUSE, VAZHEMPURAM P.O., KARAKURUSSI,

OTTAPALAM TALUK, PALAKKAD DT. 678 595.

BY ADVS.

SRI.K.B..ARUNKUMAR

THIS M.A.C.A HAVING BEEN FINALLY HEARD ON 27.07.2021, ALONG WITH CO.5/2020,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:2:-

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943

CO NO. 5 OF 2020

AGAINST THE AWARD DATED 21.01.2016 IN O.P (M.V) NO.452/

ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM

CROSS OBJECTORS/RESPONDENT NO.1 TO 3/CLAIMANTS NO.1 TO 3

1 VIJAYAKUMARI, AGED 48 YEARS, W/O. BALAKRISHNAN,

NELIKKUNNATH HOUSE, VAZHEMPURAM (P.O), KARAKURUSSI,

OTTAPALAM TAUK, PALAKKAD DISTRICT, PIN-678 595.

2 BALAKRISHNAN, AGED 55 YEARS,

S/O. AYYAPPAN, NELIKKUNNATH HOUSE,

VAZHEMPURAM (P.O), KARAKURUSSI, OTTAPALAM TAUK,

PALAKKAD DISTRICT, PIN-678 595.

3 BINDHYA BALAKRISHNAN, AGED 32 YEARS,

D/O. BALAKRISHNAN, NELIKKUNNATH HOUSE,

VAZHEMPURAM (P.O), KARAKURUSSI, OTTAPALAM TAUK,

PALAKKAD DISTRICT, PIN-678 595.

BY ADV K.B.ARUNKUMAR

RESPONDENT/APPELLANT/RESPONDENT NO.3:

RELIANCE GENERAL INSURANCE CO. LTD,

CALICUT, REPRESENTED BY ITS DEPUTY MANAGER,

REGIONAL OFFICE, VISHNU BUILDING, K.P. VALLON ROAD,

KADAVANTHRA, ERNAKULAM, PIN-682 020.

BY ADV K.S.SANTHI

THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 27.07.2021, ALONG WITH

MACA.1502/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 -:3:-

C.R.

MARY JOSEPH, J.

M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020

Dated this the 27th day of July, 2021

JUDGMENT

The appeal and the Cross Objection are originated from an Award passed by Motor Accident Claims

Tribunal, Ottappalam (for short 'the Tribunal') on 21.01.2016 in O.P.(M.V.) No.452/14. The appeal

was preferred by the insurer contending that the Tribunal went wrong in fixing the monthly income

notionally as Rs.7,000/- and arriving at the multiplicand by adding 50% to it in consideration of

future prospects.

2. According to Smt.Santhi, the learned counsel for the insurer, the victim of the motor accident who

succumbed to the injuries being a student of final year Diploma, aged 21 years, the Tribunal ought

binding precedent.

(III) 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 M.A.C.A. No.

1502 of 2016 and C.O. No.5 of 2020 should be 15%. Actual salary should be read as actual salary less

tax.

(IV) In case of 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.

(V) For determination of the multiplicand, the deduction for personal and living expenses, the

tribunals and the Courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have

reproduced hereinbefore.

(VI) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with

paragraph 42 of that judgment. (VII) The age of the deceased should be the basis for applying the

multiplier.

(VIII) Reasonable figures on conventional heads, namely loss of estate, loss of consortium and

funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid

amounts should be enhanced at the rate of 10% in every three years."

7. In National Insurance Co.Ltd, Chennai Supra, the deceased was aged 19 years and was an

Engineering student and the Tribunal had fixed his monthly income notionally as M.A.C.A. No. 1502

of 2016 and C.O. No.5 of 2020 Rs.12,000/- and added 50% to it in consideration of future prospects

in the process of arriving at the multiplicand.

8. In National Insurance Co. Ltd. Supra when compensation was claimed for the death of 19 year old

Engineering students in a motor accident, the Tribunal had fixed the monthly income notionally at

Rs.12,000/- and when an argument was advanced by the insurer against such fixation on the

ground of excessiveness, a Division Bench of this Court, of which myself was also a member had

repelled the contentions and uphold the fixation observing that various aspects such as, the

educational careergraph, future prospects etc are also to be looked into while fixing it. In the case on

hand the factors relevant for consideration had been made available by the claimants to the Tribunal

in evidence but, it failed to consider those while fixing the monthly income as Rs.7,000/- notionally

for computation of compensation for loss of dependency. In the light of the evidence tendered by the

parents of the victim that he was a final year student of Diploma in Electronics and that he had

already been selected for a M.A.C.A. No. 1502 of 2016 and C.O. No.5 of 2020 job in the interview

held at the Campus, the Tribunal ought to have been vigilant of his imminence to get a decent

employment immediately on completion of his course and earn a reasonable income had the

accident resulting in his death not been occurred. If the aforesaid evidence was duly and properly

appreciated, the approach of the Tribunal ought to have been different. Therefore, on the strength of

the dictum discussed above and the evidence already on record, this Court finds every justification

in fixing the monthly income notionally as Rs.12,000/- in the place of Rs.7,000/- fixed by the

Tribunal.

9. The Apex Court in Reshma Kumari and Others V.Madan Mohan and Another (2013 KHC 4253)

had held that the Tribunal shall follow the table and guidelines stated in Para 42 of Sarla Verma v.

Delhi Transport Corporation [2010 (2) KLT 802(SC)] for determination of compensation in cases of

death.

10. It is pertinent to note that a table has been prepared by the Apex Court in Sarla Verma supra

having regard to three of its earlier decisions viz; General Manager, Kerala State Road M.A.C.A. No.

1502 of 2016 and C.O. No.5 of 2020 Transport Corporation, Trivandrum v. Susamma Thomas

(Mrs.) & Others [1994 (2) SCC 176], U.P.State Road Transport Corporation & others v. Trilok

Chandra & others [1996 (4) SCC 362] and New India Assurance Co. Ltd. v. Charlie & another [

(10) SCC 720], for guidance in claims made under Section 166 of the Motor Vehicles Act, 1988. The

Apex Court has held that the multiplier shown in column (4) of the table must be taken having

regard to the age of the deceased, so as to achieve uniformity and conformity in the matter of grant

of compensation in death cases. It has also been directed to add 40% to the established monthly

income where the deceased was below the age of 40 years. Therefore, the Tribunal undoubtedly has

gone wrong in adding 50% to the monthly income fixed notionally in consideration of future

prospects to arrive at the multiplicand, while computing compensation for loss of dependency. In

the above circumstances, this Court is inclined to correct it by substituting 40% addition to the

monthly income, in the place of 50% addition taken by the Tribunal. M.A.C.A. No. 1502 of 2016 and

C.O. No.5 of 2020

11. The Tribunal in the case on hand has adopted the multiplier as 18 on the basis of the age of the

deceased in strict compliance with the directions of the Apex Court in Sarla Verma and therefore,

interference in that regard is strictly uncalled for. For determination of the multiplicand, the

deceased being a bachelor, the Tribunal had deducted 50% of the income fixed for computation of

compensation in consideration of personal and living expenses in strict compliance of paragraphs

30 to 32 of Sarla Verma, which was also reiterated in Pranay Sethi and therefore, interference is

unwarranted. The Apex Court had concluded in paragraph 61 of Pranay Sethi extracted above that

reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral

expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. When viewed in that

backdrop this Court was occasioned to notice that the Tribunal failed to follow the guidelines issued

by the Apex Court as above while awarding compensation under the conventional heads, which take

in loss of estate, funeral expenses and loss of consortium. M.A.C.A. No. 1502 of 2016 and C.O. No.

of 2020

12. In view of Pranay Sethi, Rs.40,000/- is payable under the head consortium and in view of

Magma General Insurance Co. Ltd. v. Nanu Ram & Ors. [2018 (11) SCALE 247], each of the parents