The Oriental Insurance Company Ltd vs Valsa @ Valsamma on 13 September, 2011

[Cites 5, Cited by 12]

Kerala High Court

The Oriental Insurance Company Ltd vs Valsa @ Valsamma on 13 September, 2011

These appeals are filed respectively by the Insurance Company as well as the claimants. The Insurance Company is aggrieved by the total compensation awarded, whereas the claimants are seeking more enhancement.

2. We heard the learned Senior Counsel Sri.Geroge Cherian and Smt.K.S.Santhi for the Insurance Company and Sri.Gerogekutty Mathew, learned counsel appearing for the claimants.

3. The accident in this was occurred on 2.11.20015 at a place called Thalakodu. The deceased was travelling in a Tata Sumo bearing Reg.No.KL 2M/5758 from Vazhahoppe to Kolencherry. The offending vehicle is a bus bearing Reg.No. KL 17/1610 driven by the sixth respondent. Due to the collision of the vehicles, the deceased MACA Nos.161/2012 & 170/2013 2 sustained injuries. The injured was taken to MBMM Hospital, Kothamangalam from where he was referred to the Amrita Institute of Medical Sciences, Kochi. After a prolonged treatment, he died on 14.12.2007. The application for compensation was initially filed by the deceased and additional petitioners 2 to 5 have been impleaded thereafter as per order in I.A.No.1305/2008 dated 22.7.2008. The additional claimants are the widow, two minor children and the mother of the deceased. The deceased was a Government servant. He was working as a Junior Superintendent of the Town Planning Department. Before the Tribunal, evidence was let in by the claimants by examining the wife as PW1 and PW2, the Town Planner, is the drawing officer of the deceased. Exts.A1 to A9 have been marked in evidence.

4. Before going into the contentions raised by the respective parties, we will give the necessary details as far as the injuries sustained and the situation of the patient at the time of death. He was admitted in the hospital on 2.11.2005 with severe head injury. The injuries sustained is right thalamo ganglio capsular intracerebal MACA Nos.161/2012 & 170/2013 3 hematoma. He underwent a surgery and was discharged on 30.11.2005. One of the crucial certificates is Ext.A9 which will show the condition of the deceased. The deceased was admitted in the Holy Family Hospital, Muthalakodem on 31.11.2005 for nursing care and physiotherapy following decompressive right hemicraniotomy, haematoma evacuation and duroplasty conducted on 3.11.2005. The certificate shows that he was in an unconscious stage and was showing very minimal improvements alone. He was discharged on 11.2.2006.

5. Ext.A10 is another certificate issued by the Consultant head and neck Surgeon of District Hospital, Idukki. It shows that the injured was brought to the hospital on 15.2.2006 in a comatosed stage and he received treatment as out patient and was last admitted on 9.12.2007 in a comatosed stage and that he was discharged on 12.12.2007. He expired on 14.12.2007.

6. The Tribunal therefore concluded that he sustained injuries in the motor vehicle accident and died as a result of the injuries sustained. He was in a coma stage throughout.

MACA Nos.161/2012 & 170/2013 4

7. Before the Tribunal, Ext.A12 salary certificate was produced which was issued by the Town Planner, Alappuzha. The certificate showed that he was earning ` 14,633/- including DA and HRA. As PW2, the Town Planner deposed that the deceased was drawing `12,002 in the year 2005 and he was on leave for the period from 2.11.2005 till 3.12.2007 and the loss sustained on account of availing leave is `3,34,988/-. Ext.A19 is the further certificate issued showing the details of leave salary drawn and the loss sustained. Ext.A7 is the copy of the S.S.L.C. Book to prove the date of birth of the deceased which shows that his date of birth is 3.6.1961. Accordingly it was concluded that he was aged above 46 years at the time of death. Going by the judgment in Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC), the multiplier applicable is 13. Since he was having permanent job under the Government of Kerala, for future prospects 30% increase in salary was adopted in the light of the said decision itself. After calculating the monthly salary as `19,022/- and as the family consists of four MACA Nos.161/2012 & 170/2013 5 members, < was deducted towards personal expenses. The loss of the dependents was assessed at `14267/- per month. The dependency compensation accordingly was assessed at `22,25,652/-. Towards loss of salary of the deceased, `207,190/- was awarded.

8. The quantification of the compensation is available from the table in paragraph 26 of the award, which we reproduce below :

             Head of claim             Amount Awarded in
                                              rupees
    Loss of earning                           207190
    Transportation expenses                    12600
    Damage to clothing, etc.                   1000
    Extra nourishment                          10000
    Bystander expenses                         37500
    Treatment expenses                        327384
    Salary loss of wife                        12463
    Funeral expenses                           5000
    Pain and suffering                         10000
    Loss of dependency                       2225652
    Loss of consortium                         10000
    Total                                   2858789/-
                                      limited to 25,00,0000/-

MACA Nos.161/2012 & 170/2013
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9. The learned Senior Counsel for the Insurance Company submitted that the adoption of multiplier at 13 and adoption of a uniform multiplicand spread over to the entire period of 13 years is not the correct method. According to him, the age of retirement being 55 in the State of Kerala, salary after the retirement, cannot be reckoned. There will be much reduction and he will be getting only the pension amount. Therefore it is submitted that at a uniform rate multiplicand cannot be adopted.

10. Our attention was invited to the judgment of the Supreme Court in Puttamma v. Narayana Reddy (2014 (1) KLT 738). The learned counsel appearing for the claimants submitted that going by the judgment in Sarla Verma's case (supra) the multiplier method has to be followed by the Tribunals and Courts as held in a series of subsequent judgments, including Reshma Kumari and another v. Madan Mohan and another ( 2013 (2) KLT 304) and in Rajesh v.Rajbir Singh ( 2013 (3) KLT 89 (SC) . The learned counsel submitted that going by the judgment in Sarla Varma's case (supra), the income as on MACA Nos.161/2012 & 170/2013 7 the date of death will have to be reckoned for the purpose of awarding compensation. If that be so, the learned counsel submitted that there will not be any justification for adopting split multiplicand. According to the learned counsel, the Apex Court has been taking a consistent view that split multiplier cannot be adopted.

11. As far as the above aspect is concerned, in Puttamma's case(supra), in paragraph 34, their Lordships held that "in the absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decisionof this Court in the case of Sarla Verma (supra) as affirmed in the case of Reshma Kumari (supra) ."

12. The vehement arguments raised by the learned Senior Counsel for the appellant is that when there is retirement from service which is sure to happen on attaining 55 years of age, the same can be taken as an exceptional circumstances. It is submitted that if such be the case, the reasoning in Puttammas's case will apply to the facts of this case.

MACA Nos.161/2012 & 170/2013 8

13. As regards the general principles as far as fixing of compensation is concerned, we find that there is a detailed discussion in paragraph 12 of Sarla Varma's case (supra). Therein the principles stated in an earlier decision of the Apex Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas 1994 (2) SCC 176 have been considered in detail. Paragraph 9, 10 and 13 of the Susammas' case (supra) discussed the essential principles and we extract the same below :

"9. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.

10. The matter of arriving at the damages is to ascertain MACA Nos.161/2012 & 170/2013 9 the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase."

"13. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."

14. Going by the same, it can be seen that in paragraph 9, the MACA Nos.161/2012 & 170/2013 10 Supreme Court was of the view that various imponderables will have to be considered eg. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether. Significantly in Sarla Varma (supra) in paragraph 45, the Honourable Supreme Court, while considering the method for computation of compensation, it has been observed as follows :

"As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life MACA Nos.161/2012 & 170/2013 11 are too many."

15. Therefore, while fixing the compensation, a balancing of all essential factors, including disadvantages will have to be adopted by the court. Even though Sri.Gerogekutty Mathew, learned counsel for the claimants submitted that based on the age of retirement ( which according to him is 56 in Kerala), there is no reason for reducing the multiplicand thereafter, we are of the view that when there is a sure date of superannuation, it cannot be ignored at all. As far as the entitlement for pension is concerned, the service under the Government is a pensionable one and therefore the deceased would have earned only monthly pension. If that be so, while balancing the earnings upto the period of retirement and the further remaining period when taking 13 as the multiplier, we will be justified in accepting the pleas of the learned Senior counsel for the Insurance Company Sri.George Cherian that the reduction of salary going by the date of superannuation will have to be considered by this Court.

16. Even without adopting a split multiplier, according to us, a MACA Nos.161/2012 & 170/2013 12 correct multiplicand can be arrived at. In this case, the net amount fixed as contribution is ` 14267/- per month. Since the deceased died in the year 2007, at the age just below 47, he had remaining 10 years of service. Therefore, by taking `14267 as the contribution for 10 years, the total amount will be `17,12,040/-. As far as the remaining 3 years is concerned, 50% of the amount normally will be payable as pension. Therefore for the remaining three years, the contribution will be `2,56,806/-. By totally these two amounts, it will come to `19,68,846/- and when the same is divided by 13, the amount will be 151,450/-. The per month contribution is fixed as `12,621/-.

17. The learned Senior counsel for the Insurance Company then objected the award of `207190 as loss of salary. The Tribunal granted it in the light of Ext.A19 and the evidence of PW2. The deceased was on leave for the period from 2.11.2005 till 3.12.2007 and the total loss on account of availing leave is `3,34,988/- and adjusting the salary paid to him, ` 207190/- was awarded towards loss of earning. The contention is that since the multiplier method is being taken that will MACA Nos.161/2012 & 170/2013 13 take care of the above amount also. But herein the date of retirement of the deceased is 4.7.2017. The age as on the date of retirement is taken for the purpose of assessment of multiplier. Therefore grant of above amount cannot be said to incorrect. Therefore we confirm the same.

18. As far as transportation expenses are concerned, relying upon Ext.A16 bill for an amount of `1800/- paid as as ambulance charge for travel from Amritha Institute of Medical Sciences to Vazhathope, an amount of `12,600/- has been awarded under this head. The learned counsel for the claimants submitted that the deceased was admitted in different hospitals and even after the inpatient treatment, he had to be taken to the hospital at Muthalakodem for physiotherapy and other treatments. Later he was taken to the District Hospital also. Therefore as against the claim of `50,000/-, we will be justified in granting an amount of `25,000/- since he would have been travelling with the support systems frequently, and was in and out of hospitals continuously.

19. `10,000/- is granted by the Tribunal towards extra MACA Nos.161/2012 & 170/2013 14 nourishment. We confirm the same. ` 3 lakhs is claimed towards expenses for bystanders. As far as the bystanders expenses is concerned, `1500/- per month for 25 months has been calculated and a total amount of ` 37500/- has been granted by the Tribunal as against the claim of `3 lakhs. It is a case where the deceased was laid up throughout. It would have necessitated definitely the help of bystanders. The tribunal has also accepted the fact that the expenses of the bystanders for the entire period of 25 months will have to be paid to the claimants. The dispute is only with regard to the rate. What is awarded is `1500/- per month namely `50 per day. The accident is of the year 2005. Therefore at any rate, we will be justified in granting `3000/- per month and hence an amount `75,000/- is awarded towards bystanders expenses. For medical expenses, `3,27,384/- has been granted which we confirm. An amount of `12,463/- has been given as loss of salary of the wife for the period from 11/05/2007 to 03/06/2007 as against the claim of `2 lakhs. Ext.A15 is the document to show the same. It is claimed that she was on loss of pay.

MACA Nos.161/2012 & 170/2013 15

20. The learned Senior Counsel for the Insurance Company submitted that since this Court is granting amount towards bystanders expenses, the claimants will not be entitled to claim the entire amount. It is also submitted that it is not a head under which this Court can grant the benefit. The Tribunal considered the same in the light of the fact that the injured was a in unconscious stage and was totally dependent and two persons are needed for his care. The Tribunal therefore assumed that she had to avail leave to take care of the injured and thus some loss had occasioned to her for availing leave on loss of pay. As far as the fixation of compensation is concerned, the loss sustained by the claimants from whatever sources will have to be compensated. Therefore, we find that the award of `12,463/- is reasonable, even though the total claim was `2 lakhs. The Tribunal has awarded ` 10,000/- under the head of pain and suffering as against the claim of ` 12 lakhs. It is not in dispute that he had sustained very serious injuries and had been under treatment for a long period. Various treatment procedures have been undertaken and the MACA Nos.161/2012 & 170/2013 16 suffering undergone by him was evidently much throughout this period. Even though the claim of ` 12 lakhs may not be sustainable, going by the evidence in this case, we grant an amount of `1 lakh towards pain and suffering of the deceased. Towards loss of consortium, only a sum of `10,000/- is granted. In the light of the decision of the Apex Court in Rajesh v.Rajbir Singh ( 2013 (3) KLT 89 (SC), we grant an amount of `1,00,000/-. ` 25,000/- is awarded towards funeral expenses instead of ` 5,000/- granted by the Tribunal. We grant an amount of ` 1,00,000/- towards loss of love and affection of the minor appellants.

21. In that view of the matter, the total compensation will be as follows:

           Head of claim                 Amount Awarded in
                                                rupees
    Loss of earning                             207190
    Transportation expenses                      25000
    Damage to clothing, etc.                      1000
    Extra nourishment                            10000
    Bystander expenses                           75000
    Treatment expenses                          327384

MACA Nos.161/2012 & 170/2013
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             Head of claim             Amount Awarded in
                                              rupees
    Salary loss of wife                        12463
    Funeral expenses                           25000
    Pain and suffering                        100000
    Loss of dependency                        1968846
    Loss of consortium                        100000
    Loss of love and affection                100000
    Total                                    29,51,883
                                    Rounded off to 29,51,800/-
                                     (Rupees twenty nine lakhs
                                      fifty one thousand eight
                                           hundred only)

22. The amount will carry interest @ 9% per annum from the date of petition. The Insurance Company shall deposit the amount less the amount already deposited, if any, within a period of three months from the date of receipt of a copy of this judgment. Going by the decision of the Apex Court in Nagappa v. Gurudayal Singh (2003(1) KLT 115 (SC), there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claim amount. But the claimants will have to pay court fee for the amount awarded, which will be recovered by the Tribunal, before disbursing the amount deposited. MACA Nos.161/2012 & 170/2013 18 M.A.C.A.No.170/2013 is allowed and M.A.C.A.No.161/2012 is dismissed, but subject to the finding regarding the multiplier and the multiplicand. The parties will suffer their costs in the appeals.

T.R.RAMACHANDRAN NAIR, JUDGE P.V.ASHA, JUDGE sv.

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