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2016 DIGILAW 128 (KER)

NEW INDIA ASSURANCE CO. LTD. v. KUSUMAM

2016-02-01

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

body2016
JUDGMENT : Ramachandra Menon, J. This appeal has been preferred by the insurance company mainly on two grounds; firstly that the multiplier adopted by the Tribunal based on the 'age of the deceased' is not correct and that the same should have been reckoned with reference to the age of the parents/claimants. Secondly, the Tribunal has deducted only 1/3rd' towards the personal expenses, treating 2/3rd as the contribution to the family, but since the deceased was a bachelor, 50% ought to have been deducted as personal expenses and only the remaining 50% ought to have been reckoned as contribution to the family. Some other contentions are also taken with reference to the other heads of compensation awarded, stating that the same is excessive. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the claimants. 3. The deceased, aged 28 years was riding a motor cycle on 20.10.2005 and when the motor cycle reached the place of occurrence, a lorry bearing No.KL-07/9070 owned by the 2nd respondent, driven by the 1st respondent and insured by the 3rd respondent dashed against the motor cycle, causing fatal injuries leading to his death. This was sought to be compensated by filing the claim petition. The owner and driver of the lorry did not choose to contest the matter and were set exparte. The claim was resisted by the insurance company mainly on the question of quantum and negligence. The evidence adduced before the Tribunal consists of Exts.A1 to A7 and the deposition of PW.1-the employer of the deceased, who had issued Ext.A3 Salary Certificate. Based on the materials on record, the Tribunal arrived at a finding that the accident was solely because of the negligence on the part of the driver of the lorry and proceeded to fix the quantum of compensation payable. 4. The case of the claimants was that the deceased was working as a Salesman-cum-Supervisor at Sunny's Readymades, Thrippunithura, earning a monthly income of 4,500+850 as the salary, plus travelling allowance. However, the Tribunal reckoned only a sum of 4,500/- and worked out the compensation under different heads, making the total as 6,48,350/- which was directed to be satisfied by the insurance company with interest @7.5% per annum from the date of the petition, i.e., 26.12.2005, till realisation. However, the Tribunal reckoned only a sum of 4,500/- and worked out the compensation under different heads, making the total as 6,48,350/- which was directed to be satisfied by the insurance company with interest @7.5% per annum from the date of the petition, i.e., 26.12.2005, till realisation. This is sought to be scaled down at the instance of the insurance company, by way of this appeal. 5. The appeal was filed way back in February, 2013. When the matter came up for consideration before this Court on 27.2.2013, it was admitted and interim stay was granted, subject to the condition that the appellant deposited 50% of the compensation awarded by the M.A.C.T., which is stated as complied with. The point to be considered is whether any interference is to be made with reference to the 'multiplier' and the 'multiplicand', as contended by the insurance company. 6. The amounts awarded by the Tribunal under different heads as given in the table forming part of paragraph 11 of the Award are extracted below:- Head of claim Claimed amount Amount awarded (in Rupees) Basis – Vital details in a nut shell Transportation charges 5000 1000 Damage to clothing 2500 350 Funeral expenses 10000 5000 Compensation for pain and suffering 100000 10000 Loss of love and affection 200000 20000 Loss of dependency - 612000 Total (claim limited to) 700000 648350 7. There is no dispute to the fact that the deceased was a bachelor and as such, only 50% could have been reckoned as contribution to the family and there is force in the submission made by the learned counsel for the appellant in this regard. But the question is whether any modification is necessary with regard to the total compensation awarded, if any other head under which the compensation has been awarded by the Tribunal is inadequate in some or other respects. 8. The Tribunal has awarded only a sum of 5,000/- towards funeral expenses. The Apex Court has held, as per decision reported in Rajesh Vs. Rajbir Singh [2013 (3) KLT 89(SC)], that unless higher expenses are proved, a minimum sum of 25,000/- is to be awarded under this head. It is true that the accident in the said case was in the year 2007, whereas in the instant case, it was in the year 2005. Rajbir Singh [2013 (3) KLT 89(SC)], that unless higher expenses are proved, a minimum sum of 25,000/- is to be awarded under this head. It is true that the accident in the said case was in the year 2007, whereas in the instant case, it was in the year 2005. But still, the amount of 5,000/- awarded is on the lower side, which may have to be enhanced by awarding 10,000/- more. The amount awarded towards the loss of `love and affection' is only 20,000/-. As per the very same decision rendered by the Apex Court (cited supra) a sum of 1,00,000/- is payable under this head. Considering the fact that the accident in the said case was in the year 2007, whereas in the instant case, it was of 2 years ago (in 2005), a further sum of 30,000/- can be safely awarded under this head. Similarly, no amount has been awarded towards 'loss of estate' and a notional sum of 10,000/- is possible to be awarded under this head as well. 9. Based on the age of the deceased as 28 years, the multiplier adopted by the Tribunal is ‘17'. By virtue of the settled law, as declared by the Supreme Court, the multiplier has to be adopted based on the age of the deceased and not on the basis of the age of the parents/claimants. As it stands so, the course pursued by the Tribunal in reckoning the appropriate multiplier is not liable to be deprecated. Coming to the question of multiplicand, the case of the claimants as put forth before the Tribunal was that the deceased was getting a monthly salary of 4,500/- certified as per Ext.A3 and a further sum of 850/- per month towards travelling allowance. The employer of the deceased was examined as PW.1, but nothing could be elicited by the appellant/Insurer, contrary to the case projected by the claimants with reference to the occupation and income. The deceased was an able bodied youth of 28 years and there would be chance for future prospects as well. Even otherwise, by the passage of time, depending upon the economic conditions prevailing as on date and with reference to the Consumer Price Index (CPI), periodical enhancement of salary/allowance would be there, in the case of the deceased as well. Even a daily wage earner may be getting a better wage, by the passage of time. Even otherwise, by the passage of time, depending upon the economic conditions prevailing as on date and with reference to the Consumer Price Index (CPI), periodical enhancement of salary/allowance would be there, in the case of the deceased as well. Even a daily wage earner may be getting a better wage, by the passage of time. It also is a matter which cannot be lost sight of, that the deceased, even after his marriage, as a dutiful son, would have rendered considerable support to the parents so as to enable them to have a peaceful living, with food, frugal comforts and medicines at their old age. Going by the above standards and also by virtue of the law declared by the Supreme Court in Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. (2010 (2) KLT 802) and in Rajesh and others v. Rajbir Singh and others [2013(3) KLT 89 (SC)] 50% of the monthly income could have been added; upon which the multiplicand would have been much higher [6,750(i.e.,4,500+2,250)]. On calculating the 'loss of dependency' the amount payable under this head would have been 6,88,500/-[6,750x12x50/100x17]. The Tribunal has awarded only a sum of 6,12,000/- under this head resulting in a deficit of 76,500/-. The total differential portion as mentioned above remains as an allocable extent, to make up the difference, if any, to meet the challenge. 10. Viewed in the above perspective, the alleged excess, if at all any as put forth by the appellant/insurance company could be allocated or re-distributed under appropriate heads, based on the discussion made above and this Court finds that the position will not tilt the balance, in any manner even, if such re-working as sought for is made. In so far as the appellant/insurance company cannot successfully contend any more that the multiplier should have been fixed on the basis of the age of the parents, there is no fault or lapse in the course pursued by the Tribunal in reckoning the multiplier, based on the age of the deceased. This Court holds that the grounds raised in the memorandum of appeal (filed in the year 2013) do not serve or support the case of the appellant/Insurer any more, to maintain this appeal. Interference is declined. The appeal stands dismissed.