SMT LAKSHMAMMA vs. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED

ICICI LOMBARD GENERAL INSURANCE

K.A.THIRUMALESH

SMT. LAKSHMAMMA W/O. LATE N. KRISHNAPPA AGED ABOUT 52 YEARS R/AT. No.716, 1ST MAIN ROAD 3RD CROSS, KAMALANAGARA BENGALURU-585 417.

Heard the learned counsel appearing for the appellant/claimant and the learned counsel appearing for the Insurance Company/respondent.

The factual matrix of the case is that on 24.08.2011 at about 3.30 p.m., when the deceased was riding Honda Activa bearing No.KA-92-HG-7741 carefully and cautiously on Vatal Nagaraj Road near K.B.Junction, Malleshwaram, Bengaluru at that time, the rider of the motor cycle bearing No.AP-03-J-3796 came at high speed in a rash or negligent manner so as to endanger human life and dashed against above scooter from behind due to which, the deceased fell down and sustained grievous injuries. Immediately, he was shifted to Railway Hospital for first-aid and later shifted to Apollo Hospital for treatment, where he was treated as inpatient from 24.8.2011 till 02.09.2011 and despite best treatment given, his condition deteriorated in view of the head injury and he succumbed to the

In response to the claim petition, the first respondent-Insurance Company filed the written statement admitting the issuance of insurance policy, however, it is contended that the liability is subject to the terms and conditions of the policy and also holding of valid licence. Inspite of service of notice, respondent No.2 did not choose to appear and contest the matter. He was placed ex-parte. The claimant, in order to support her claim examined herself as P.W.1 and got marked documents Ex.P1 to Ex.P15 and so also examined one witness as P.W.2. The respondent-Insurance Company did not choose to lead any evidence. The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim petition granting the compensation of Rs.11,99,967/- with interest at the rate of 6% per annum.

Learned counsel appearing for the appellant/claimant in his arguments also reiterated the grounds urged in the appeal memorandum and would contend that the Tribunal committed an error in not considering the future prospects as well as

Per contra, learned counsel for the Insurance Company in M.F.A.No.6160/2013 would contend that the Tribunal ought to have considered the income of the deceased only for a period of three years as the deceased was having only three years of service and without considering the same, the Tribunal has grossly erred in arriving at the compensation by taking the multiplier as 9. The other ground urged in the appeal is that the son of the deceased got a job on compassionate ground, which has not been considered by the Tribunal. The Tribunal further erred in deducting 1/3rd of the income of the deceased towards personal expenses, which ought to have been 50% instead of 1/3rd since the deceased is having only one dependent, who is his wife. It is also contended that the Tribunal has not taken note of the fact that the claimant is getting pension of Rs.6000/- per month, which ought to have been deducted while granting the compensation.

Learned counsel appearing for the Insurance Company would further submit that the Tribunal committed an error in calculating the compensation, which is on the higher side. Learned counsel, in support of his contention, relied upon the unreported judgment of the Division Bench of this Court in M.F.A.No.6624/2017 (MV-D) dated 27.02.2020 and would submit that the Division Bench has taken note of remaining period of service and by rightly applying the split multiplier modified the compensation. Hence, this Court also has to apply the split multiplier while determining and awarding the just and reasonable compensation.

In reply to the arguments of the Insurance Company, learned counsel appearing for the claimant brought to the notice of this Court the judgment of the Apex Court in the case of Puttamma and Others vs. K.L.Narayana Reddy and Another reported in (2013) 15 SCC 45. Referring to this judgment, learned counsel would submit that for the selection of split multiplier, there cannot be any routine application and in the absence of any specific reason and evidence on record, the

Learned counsel would submit that the principles laid down in the judgment referred supra would aptly applicable to the case on hand. Further, the learned counsel would contend that the 1988 Act, does not envisage the application of split multiplier. It is further contended that in the absence of any specific reason and evidence on record, the Tribunal or Court should not apply the split multiplier. There are no reasons to apply the split multiplier in the case on hand and so also, nothing is elicited in the cross-examination of P.W.1 to apply the split multiplier.

Having heard the arguments of both the respective counsel appearing for the claimant as well as the Insurance Company, the points that would arise for the consideration of this Court are :

Whether the Tribunal committed an error in not adding the future prospects and not awarded the just and reasonable compensation?

Whether the Tribunal committed an error in deducting 1/3rd of the income instead of 50%?

Whether the Tribunal committed an error in not applying the split multiplier as contended by the Insurance Company?

What order?

Having heard the submissions of the respective counsel, there is no dispute with regard to the accident and also there is no dispute with regard to the liability. However, the dispute is only with regard to the quantum of compensation awarded by the Tribunal. The first contention of the claimant is that the Tribunal has committed an error in deducting the

Learned counsel for the Insurance Company also does not dispute the same seriously. The pension what the claimant is getting is for the service rendered by the deceased when he was in service and the same cannot be deducted. But the Tribunal committed an error in deducting the same, which ought not to have been deducted. Hence, it requires to be interfered by this Court.

The Second ground urged by the claimant is that the future prospects has not been added and on perusal of the judgment, it is seen that the Tribunal, while calculating the compensation, did not discuss anything about the future prospects. The fact that the deceased was aged about 57 years

Now the main ground urged by the Insurance Company is that the Tribunal ought to have applied the split multiplier. No doubt, the deceased was aged about 57 years and he was left with three years of service. Learned counsel relied upon the judgment of the Division Bench of this Court where the split multiplier has been considered. But the learned counsel appearing for the claimant vehemently contend that the Apex Court in Puttamma’s case (Supra) categorically held that the

Learned counsel appearing for the Insurance Company would vehemently contend that the Apex Court held that in the absence of any specific reason and evidence on record, the Tribunal or the Court should not apply the split multiplier in routine course, but in the case on hand, the fact that the deceased was having only three years of service is not in dispute, hence, the split multiplier is applicable.

Having perused the grounds urged in the appeal memorandum of the Insurance Company and also the material available on record, particularly, the evidence of P.W.1, learned counsel appearing for the Insurance Company did not cross- examine the witness-P.W.1 during the cross-examination with

The Apex Court has categorically held in Puttamma’s case (Supra) that without any specific reasons and evidence on record, there cannot be any application of split multiplier. Apart from that, the Apex Court also in paragraph Nos.29 to 34 of the judgment discussed with regard to the uniformity and certainty in granting compensation always envisaged payment of just compensation based on multiplier method which is the accepted method for determining and ensuring payment of just compensation. The Apex Court in paragraph Nos.32 to 34 has particularly discussed in detail with regard to determination of compensation in Motor Accident Claims under Section 166 of the M.V. Act. It is further observed that the Apex Court always

In K.R.Madhusudhan v. Administrative Officer, this Court held as follows: (SCC p.692, paras 14-15)

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.”

We, therefore, hold that in 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 decision of this Court in Sarla Verma as affirmed in Reshma Kumari.”

Having perused, particularly, the paragraph Nos.29 to 34, the Apex Court has discussed with regard to the application of the relevant multiplier referring to the decisions rendered in Kerala SRTC v. Susamma Thomas; S.Chandra v. Pallavan Transport Corpn.; Sarla Verma v. DTC; Reshma Kumari v. Madan Mohan; and so also the decision in K.R.Madhusudhan v. Administrative Officer extracting the paragraph Nos.14 and 15 of the said judgment.

No doubt, the Apex Court in para No.34 held that in the absence of any specific reason and evidence on record, the Tribunal or the Court should not apply the split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma’s case as affirmed in Reshma Kumari’s case. In order to apply the split multiplier, the Court has to assign the specific reason and there must be specific evidence. I do not find any reasons to apply the split multiplier. The Apex Court has observed that there must be a specific reason and evidence on record to invoke split multiplier and in the case on hand, there is no such specific reason and evidence on record and as I have already discussed, nothing is elicited in the cross- examination of P.W.1, except receiving the death benefits and his son having got a job on compassionate ground. Hence, the very contention of the Insurance Company cannot be accepted. Therefore, it is not a fit case to invoke split multiplier. Though Division Bench of this Court applied the split multiplier, this Court has to take note of the principles relied upon by the Apex

Now this Court has to analyze the material available on record in order to award the just and reasonable compensation. The fact that the deceased was an employee of Railway Department is not in dispute. In order to substantiate the same, the claimant has produced the salary certificate which is marked as Ex.P10 and this salary certificate is for the month of August 2011, in which month, the deceased met with an accident. The gross salary in terms of Ex.P10 is Rs.22,851/- and after deducting an amount of Rs.200/- towards professional tax, it comes to Rs.22,651/-. The Tribunal committed an error in deducting the pension amount from the income of the deceased. Hence, this Court has to consider the salary of the deceased as Rs.22,651/-. Taking the monthly income of the deceased at Rs.22,651/- for 12 months, the same would comes to Rs.2,71,812/-.

It has to be noted that this was the accident of the year 2011 and the Court has to take note of whether total gross

The claimant before the Tribunal is only the wife of the deceased, but not his son and the fact that son has got the employment on compassionate ground is not in dispute and whatever the salary he gets, cannot be subjected for deduction for the reason that the son is getting salary for the service rendered by him in the job. Hence, the very contention that son

The Tribunal also committed an error in deducting 1/3rd of the income of the deceased towards personal expenses when his wife is the only dependent and son, a major and employed is not the dependent. When such being the case, the Tribunal ought to have deducted 50% towards personal expenses as held by the Apex Court in Sarla Verma’s Case. After deducting 50% towards personal expenses and by applying the relevant multiplier as 9, the loss of income/dependency is worked out as hereunder:- Rs.3,01,709 -50%=Rs.1,50,855x9=Rs.13,57,695/-

The Tribunal awarded only an amount of Rs.24,000/- under the head of ‘loss of estate’, ‘loss of consortium’ and ‘loss of love and affection’, which requires to be enhanced to

In view of the discussion made above, I pass the following ORDER (i) The appeals in M.F.A.No.5630/2013 and M.F.A.No.6160/2013 are allowed in part.