Chandrusha @ Poornima and others v. B.V. Krishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY ,THE 17TH DAY OF SEPTEMBER 2018 / 26TH BHADRA, 1940** ## **MACA.NO. 611 OF 2011** **AGAINST THE AWARD IN O.P.(M.V.) NO.727/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA DATED 30-10-2010** ## **APPELLANTS/PETITIONERS:** - **1 CHANDRUSHA @ POORNIMA, AGED 27 YEARS, W/O.BINUMON,KANJIRAATHUMPARAMBU, MARARIKULAM, NORTH P.O., MARARIKULAM NORTH PANCHAYATH, WARD NO.14,ALAPPUZHA DISTRICT.** - **2 KALYANI,AGED 7 YEARS, D/O.BINUMON(MINOR REPRESENTED BY HER MOTHER CHANDRUSHA), KANJIRAATHUMPARAMBU, MARARIKULAM NORTH P.O., MARARIKULAM NORTH PANCHAYATH, WARD NO.14,ALAPPUZHA DISTRICT.** - **3 KANAKAMMA SOMANATHAN,AGED 60 YEARS M/O.BINUMON,KANJIRAATHUMPARAMBU, MARARIKULAM, NORTH P.O., MARARIKULAM NORTH PANCHAYATH, WARD NO.14,ALAPPUZHA DISTRICT.** - **4 BINIMON, B/O.BINUMON,AGED 39 YEARS KANJIRAATHUMPARAMBU, MARARIKULAM NORTH P.O., MARARIKULAM NORTH PANCHAYATH, WARD NO.14,ALAPPUZHA DISTRICT.** **BY ADVS.SRI.N.RADHAKRISHNAN SRI.V.S.BHASKARAN** ## **RESPONDENTS/RESPONDENTS :** **1 B.V.KRISHNAN,S/O VELAYUDHAN, VII/196, KADAVILA VEEDU, KARUMANOOR, PARASALA(OWNER),PIN-695502.** **MACA.NO. 611 OF 2011 2** **2 K.SHIBUKUMAR, S/O KESAVA PILLAI, EDAKKADU, THIRUNANTHIKARA, KULASEKHARAM P.O., KANYAKUMARI DISTRICT-629702. 3 THE NEW INDIA ASSURANCE CO.LTD. NAGARKOVIL BRANCH, REP.BY ITS BRANCH MANAGER,, ALAPPUZHA, PIN-688001. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 611 OF 2011** **3** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.727 of 2005 of the Motor Accidents Claims Tribunal, Alappuzha by the legal heirs of the deceased Binumon. On 18.03.2005 at 12.45 p.m., while the deceased was riding a motorcycle KL-4/Q-7857 along Alappuzha-Ernakulam NH Road, when he reached at Pathirappally, another vehicle KL-01/A-7603 driven in a rash and negligent manner hit against the motorcycle, as a result the rider and pillion rider sustained serious injuries and while undergoing treatment, the rider died. The legal representatives preferred the above claim petition in the lower court and the learned Tribunal awarded compensation of Rs.5,24,000/- (Rupees Five Lakh Twenty Four Thousand only) with 7.5% interest and cost. Being aggrieved by that, the legal heirs preferred this appeal. 2. In the lower court, driver and owner of the vehicle were ex parte. Insurer admitted the insurance of the vehicle. The above claim petition was tried along with O.P.(M.V.) No.728 of 2005 and the evidence consist of oral testimony of **MACA.NO. 611 OF 2011** **4** PW1 to PW4 and documentary evidence of Exts.A1 to A21. 3. Learned counsel appearing for the appellants contended that the deceased was aged 28 years at the time of accident and was holding a post graduate degree in Economics. He was running a cool bar, stationery and tea shop and was also renting out auto rickshaw and motorcycle, thereby getting an amount Rs.7,000/- per month. Just amount was not awarded by the Tribunal. 4. In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the death. But the assessment of damages to the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables. The life expectancy of the deceased and the dependents are the major factors. Secondly, the amount that the deceased would have earned during the remaining period of his life, the amount that he would have contributed to the dependents during that period is also relevant. The chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life **MACA.NO. 611 OF 2011** **5** expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the Tribunal. ## 5. Apex Court in **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** held as follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a 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 should be 15%. Actual salary should be read as actual salary less tax. (iv) In case 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 **MACA.NO. 611 OF 2011** **6** 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 herein before. - (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. 6. In the lower court the dependants of the deceased examined PW1, Village Officer to prove the income of the deceased. PW1 deposed that the deceased was getting Rs.90,000/- per year. In the claim petition, the claim was only Rs.7,000/-. Hence, in view of **Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited [(2014) 2 Supreme Court Cases 735]** the income is taken as Rs.7,000/-. If 40% is added along with the income towards future prospects, the income comes to Rs.9,800/-. The **MACA.NO. 611 OF 2011** **7** deceased was a Post Graduate holding M.A. Degree aged 28 years at the time of accident, hence the multiplier is 17. There are four dependants hence 1/4[th] has to be deducted in view of **Sarla Verma** v. **Delhi Transport Corporation [2010 (2)KLT 802(SC)]** . Hence, the dependency compensation will be Rs.14,99,400/- (9800x12x17x3/4). The learned Tribunal awarded Rs.4,76,000/- on that head. The balance is Rs.10,23,400/-. In view of **Pranay Sethi** (Supra) 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. Hence, additional amount of Rs.10,000/- is awarded for Funeral Expenses, Rs.5,000/- is awarded for Loss of Estate and Rs.30,000/- is awarded for Loss of Consortium. The total enhanced compensation is Rs.10,68,400/- (Rupees Ten Lakh Sixty Eight Thousand Four Hundred only). Accordingly, the dependants are entitled to get an enhanced compensation of Rs.10,68,400/- (Rupees Ten Lakh Sixty Eight Thousand Four Hundred only) with 9% interest and cost from the date of petition till realisation with proportionate cost in addition to **MACA.NO. 611 OF 2011** **8** Rs.5,24,000/- (Rupees Five Lakh Twenty Four Thousand only) awarded by the learned Tribunal. Insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A.To Judge