Kerala High Court
National Insurance Company Limited vs National Insurance Company Limited on 12 March, 2021
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
RP.No.24 OF 2020 IN MACA. 1538/2018
FOR REVIEWING THE JUDGMENT DATED 20.02.2019 IN MACA 1538/2018(D)
OF HIGH COURT OF KERALA
REVIEW PETITIONER/3RD RESPONDENT IN MACA NO.1538/2018:
NATIONAL INSURANCE COMPANY LIMITED
P.M.C IX/36A, A.M.ROAD, PERUMBAVOOR, PIN-683 542.
REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G
ROAD, BAZAR (PO) ERNAKULAM, PIN - 682 016.
BY ADV. SRI.LAL GEORGE
RESPONDENTS/APPELLANTS AND RESPONDENTS NO.1 AND 2 IN MACA
NO.1538/2018:
1 SAVITHRI V.,
AGED 42 YEARS
W/O.LATE ENCAPPU K.M. @ MADHAVAN,
KOZHIMULLU HOUSE, KOTTODY (PO), KALLAR,
KASARAGOD DISTRICT AND NOW RESIDING AT N.G.O.
QUARTERS NO.TA/7/79, KAKKANADU, THRIKKAKARA,
ERNAKULAM, PIN - 682 028.
2 ARJUN.K.M.,
AGED 19 YEARS
S/O.LATE ENCAPPU K.M. @ MADHAVAN,
KOZHIMULLU HOUSE, KOTTODY (PO), KALLAR,
KASARAGOD DISTRICT AND NOW RESIDING AT N.G.O.
QUARTERS NO.TA/7/79,KAKKANADU, THRIKKAKARA,
ERNAKULAM, PIN - 682 028.
3 MINOR ANJU K.M.,
AGED 16 YEARS,
D/O.LATE ENCAPPU K.M. @ MADHAVAN,KOZHIMULLU HOUSE,
KOTTODY (PO), KALLAR,KASARAGOD DISTRICT AND
NOW RESIDING AT N.G.O. QUARTERS NO.TA/7/79,
KAKKANADU, THRIKKAKARA, ERNAKULAM, PIN - 682 028
REPRESENTED BY HER MOTHER SAVITHRI V
AGED 42 YEARS, W/O. LATE ENCAPPU K.M. @ MADHAVAN
KOZHIMULLU HOUSE, KOTTODY (PO), KALLAR, KASARAGOD
DISTRICT AND NOW RESIDING AT N.G.O. QUARTER NO.
TA/7/79, KAKKANADU, THRIKKAKARA ERNAKULAM,
PIN - 682 028.
RP.No.24 of 2020 in MACA. 1538/2018
2
4 CHOMU BHAI,
AGED 84 YEARS
W/O.LATE MAYILA NAIK, KOZHIMULLA HOUSE,
KOTTODY (PO), KOLLAR,KASARAGOD DISTRICT,
PIN - 671 532.
5 RAVI.M.A.
MEPPILLY HOUSE, CHITTANAD, KUMARAPURAM (PO),
ERNAKULAM DISTRICT, PIN - 683 565.
6 BIJESH.K.G.,
KANAKAPPILLY HOUSE, VALAMBOOR,
NORTHE MAZHUVANNOOR (PO),
ERNAKULAM DISTRICT, PIN - 686 669.
R1 TO R3 BY ADVS. SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANAKUMAR
SMT.VANDANA MENON
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08-03-
2021, THE COURT ON 12-03-2021 PASSED THE FOLLOWING:
RP.No.24 of 2020 in MACA. 1538/2018
3
ORDER
Dated this the 12th day of March 2021 The Review Petitioner Insurance Company is the 3 rd respondent in M.A.C.A No.1538 of 2018 on the file of this Court. The respondents 1 to 4 in the review petition were the appellants in the above appeal. The parties are, for the sake of convenience, referred to as per the status in the Review Petition.
2. The respondents 1 to 4, the claimants in O.P(M.V)No.2115 of 2015 on the file of the Additional Motor Accidents Claims Tribunal, had filed the claim petition seeking compensation on account of the death of the husband of the 1st respondent, the father of the respondents 2 and 3 and the son of the 4th respondent. It was their case that while the deceased named Encappu was driving a motor cycle bearing Registration No.KL7/BW7361 through the Ernakulam - Kakkanad public road, he was hit by a bus RP.No.24 of 2020 in MACA. 1538/2018 4 bearing Registration No.KL40/2769 (offending vehicle) driven in a rash and negligent manner by the 6th respondent in the claim petition. The offending vehicle was owned by the 5th respondent in the claim petition and was insured with the review petitioner. The Tribunal by its award dated 28.11.2017 allowed the claim petition in part, by directing the review petitioner to pay the respondents 1 to 4 a total compensation of Rs.13,20,923/. The compensation amount was directed to be apportioned among the respondents 1 to 4 in the proportion of 30:30:30:10. The Tribunal, considering the fact that the deceased was aged 51 and would only has 5 years of service left, adopted the multiplier of 9 and split it by 4½, considering the fact that the deceased would retire within a period of 4½ years. Accordingly, the Tribunal held that the petitioners were entitled for compensation for loss of dependency for a period of 4 ½ years for the full salary of the deceased and for the remaining period of 4 ½ years only on 50% of the salary of the deceased.
RP.No.24 of 2020 in MACA. 1538/2018 5
3. Dissatisfied with the quantum of compensation awarded by the Tribunal, the respondents 1 to 4 filed M.A.C.A No.1538 of 2018. This Court after fixing the salary of the deceased at Rs.31,073/ and by adopting the multiplier at 11, as laid down in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)], allowed the appeal by enhancing the compensation to Rs.35,34,925/ instead of Rs.13,20,923/ awarded by the Tribunal.
4. Aggrieved by the said judgment, the Insurance Company is in Review.
5. Heard Sri. Lal George, learned counsel appearing for the review petitioner and Sri.Pushparajan Kodoth, the learned counsel appearing for respondents 1 to 4.
6. Sri. Lal George, the learned counsel appearing for the review petitioner submitted that the Tribunal had rightly followed the split multiplier method as laid down by the Division Bench of this Court in Oriental Insurance Co. v. Valsa [2015(1) KLT 781] and in Kumaran v. Roy Mathew RP.No.24 of 2020 in MACA. 1538/2018 6 [2017(1) KLT 668] which were rendered following the decision of the Hon'ble Supreme Court in Puttumma v. Narayana Reddy [2014(1) KLT 738 (SC)]. The learned counsel contended that as admittedly the deceased was left with only 4½ years of service and, therefore, the Tribunal ought to have adopted the split multiplier method. He also contended that this Court had erroneously awarded an amount of Rs.2,00,000/ for loss of love affection after awarding an amount of Rs.1,60,000/ for loss of consortium. Hence, there is an error apparent on the face of record in the impugned judgment, which warrants to be reviewed.
7. Sri.Pushaparajan Kodoth, the learned counsel appearing for respondents 1 to 4 placed reliance on paragraph 34 of decision of the Hon'ble Supreme Court in Puttamma v. Narayana Reddy (supra) and contended that the Supreme Court has held that unless there are specific reasons and evidence on record, the Tribunal should not apply the split multiplier method in a routine course, but RP.No.24 of 2020 in MACA. 1538/2018 7 should apply the multiplier as per the ratio in Sarla Verma v. Delhi Transport Corporation (supra). He submitted that there is no error apparent on the face of record and the review petition be dismissed.
8. The question that emerges for consideration in this review petition is whether there is any error apparent on the face of record warranting the review of the impugned judgment.
9. Undisputedly, the deceased had only 4 ½ years service left. The Tribunal, in the impugned award, had given cogent reasons to adopt the split multiplier as laid down by the Division Benches of this Court In Oriental Insurance Co. Ltd. v. Valsa and Kumaran v. Roy Mathew (supra). However, this Court without stating any reasons adopted multiplier 11 and awarded compensation on the full salary of the deceased even after the superannuation date. Similarly, this Court has awarded compensation for loss of consortium and also compensation for loss of love and affection which is RP.No.24 of 2020 in MACA. 1538/2018 8 against the decision of this Court in Kunjandy L. and others v. Rajendran [2020(2) KLT 315] and Chandran and others v. Viju and others [2020(2) KLT 659]. In the above circumstances, I find that there is an error apparent on the face of record warranting the recalling of the judgment in M.A.C.A No.1538 of 2018.
In the result, the Review Petition is allowed and the judgment in M.A.C.A No.1538 of 2018 is recalled.
Sd/-
C.S.DIAS JUDGE DK