## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
**THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937**
## **MACA.No. 189 of 2016 ()**
**-----------------------AGAINST THE AWARD IN OP(MV) NO.260/2014 OF THE MACT, PALA DATED 28-09-2015**
## **APPELLANT(S)/3RD RESPONDENT:**
**----------------------------**
**CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD., NOW REPRESENTED BY ITS DEPUTY MANAGER-CLAIMS, ACEL ESTAE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI - 11.**
**BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.JACOB MATHEW P.**
## **RESPONDENT(S)/PETITIONERS:**
**--------------------------**
**1. BABU P.D., S/O. PAPAN, KALAYANTHANAM HOUSE, PAKALOMATTOM P.O. KARAVILANGADU - 686 320.**
**2. KUMARI BABU, W/O. BABU P.D, KALAYANTHANAM HOUSE, PAKALOMATTOM P.O. KURAVILANGADU - 686 320.**
**3. AMAL K. BABU, S/O. BABU P.D., KALAYANTHANAM HOUSE, PAKALOMATTOM P.O. KURUVILANGADU - 686 320.**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**BKA/-**
**'CR'**
## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.**
--------------------------------------------------
M.A.C.A. No. 189 of 2016
-------------------------------------------------Dated this the 21[st ] day of January, 2016
## **J U D G M E N T**
## P.R. Ramachandra Menon, J.
Quantum of compensation fixed by the Tribunal, awarding a total sum of 15,65,000/- in respect of the₹ death of a youth aged 21 years, who was a Diploma Engineer/Technician working as site supervisor in a private construction company, is sought to be scaled down by the Insurance Company, contending that the same is much on the higher side. There is a vague contention on the question of negligence as well, in so far as the accident was due to collision between a motorcycle ridden by the deceased and a mini lorry insured by the appellant.
2. The deceased was riding a motorcycle, bearing
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Reg.No.KL-05/U-7371 with another person on the pillion. When the motorcycle reached the spot of occurrence, the mini lorry, bearing Reg.No.KL-36/A-7265, owned, driven and insured by respondents 1 to 3 before the Tribunal, dashed against the motorcycle, causing fatal injuries to both the riders, which led to separate claim petitions preferred by the parents and siblings of the deceased. These cases were tried together, leading to a common award passed on 28.09.2015.
3. The evidence adduced before the Tribunal consists of Exts.A1 to A23 produced from the part of the claimants. No evidence was placed, either oral or documentary, from the part of the respondents. The owner and driver of the mini lorry appeared and contended that the claim was ill-conceived and that no liability could be fastened upon their shoulders. It was also pointed out that the negligence was solely on the part of the rider of the motorcycle, also adding that the mini lorry was being driven keeping the correct proper
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side by the driver, who was having a valid driving licence, and further that the vehicle was having a valid policy issued by the appellant herein. The 3[rd] respondent Insurance Company contended that the rider of the motorcycle was not having any driving licence and that negligence was attributable to him alone. It was also contended that the quantum of compensation claimed was much on the higher side, disputing the age, occupation, income and such other relevant aspects. On culmination of the trial, based on the materials on record, including Ext.A8 Final Report filed by the police against the driver of the mini lorry, Ext.A2 Scene Mahazar, Ext.A3 vehicle mahazar etc., the Tribunal arrived at the finding that the accident was solely because of the negligence on the part of the driver of the mini lorry.
4. Coming to the quantum of compensation payable, the claim put forward before the Tribunal was that the deceased was a skilled technician, having 'Diploma' in the relevant subject and that he was working
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as a 'site supervisor' in a private construction company, with a monthly salary of 12,000/-. This was sought to be₹ substantiated by producing Ext.A9 Technical High School Leaving Certificate, Ext.A10 Grade Card and Ext.A13 Salary Certificate and such other materials. The Tribunal, however, found that Ext.A13 Salary Certificate, showing the monthly salary as 12,000/- was not proved, by₹ examining the employer or the party, who issued the same. However, considering the available materials on record, and also making a reference to Ext.A17 Inquest Report and the version of others concerned, forming part of the police records, it was observed by the Tribunal that the deceased was working as a 'site supervisor' in a private construction company. Considering the qualifications possessed and sought to be proved with reference to the documents mentioned above and also considering the date of accident as in the year 2013, the Tribunal fixed the notional income as 9,000/-, which₹ cannot be held as on the higher side.
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5. Mr.Mathew Jacob, the learned senior counsel appearing for the appellant company submits that the addition of 50% to the aforesaid notional income for fixing the reckonable extent is not correct or proper, in so far as the deceased was not having any permanent employment and as such, consideration of future prospects in such cases is not liable to be sustained. It is also pointed out that the decision rendered by the Apex Court providing for consideration of future prospects, adding 50% of monthly income in the case of persons up to the age of 40 years, 30% in the case of persons up to the age of 50 years and 15% in the case of persons of above 50 years, stands referred to a Larger Bench of the Apex Court and hence, the issue has not become final. This Court is not much impressed with the said proposition, for more than one ground.
6. Whether the future prospects could be considered in the case of daily waged workers, unlike the case of a permanent worker is, of course, a matter for
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consideration; having not attained finality. But, even then, when a permanent worker gets increment every year or such other benefits/timely enhancement, it also cannot be lost sight of that, even the daily waged workers
would be getting their daily wage enhanced by the passage of time, based on the increased cost of living index and the economic conditions prevailing in the State/country at the relevant time. However, this Court does not intend to express anything with regard to that aspect, since the matter is pending consideration before the Apex Court. There is no dispute to the fact that the law has already been laid down by the Apex Court as to the necessity to consider future prospects for fixing the multiplicand; by virtue of the decision in **Munna Lal Jain & Another** v. **Vipin Kumar Sharma and Others** [2015 ACJ page 1985]. Even if the said decision has been doubted by a Co-ordinate Bench and referred to a Larger Bench for consideration, the order of reference cannot act as a stay in any manner; nor will it spoil the sanctity
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of the judgment rendered by the earlier Bench of the Apex Court, which has the colour and characteristics as the 'Law of the land', as on date, by virtue of the mandate of Article 141 of the Constitution of India. For this reason also, this Court does not find any merit in the submissions put forth by the appellant.
7. Yet another aspect to be noted in the present case is that, there is no dispute with regard to the credentials of the deceased; that he was not a daily-wage worker having limited income. Admittedly, he was having technical qualifications of his own, supported by certificates, copies of which have been produced before the Tribunal. The veracity or credibility of such certificates has not been put to challenge by the appellant Company. Similarly, no attempt was made by the Insurance Company before the Tribunal to challenge the acceptance of the said documents, if doubted, by filing appropriate proceedings, nor was there any attempt from their side to summon the employer or cause production of
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the documents from the employer, who issued Ext.A13 salary certificate. Still, the Tribunal has not accepted Ext.A13 salary certificate as such and has reckoned only a much lesser amount of 9,000/- as the notional monthly₹ income, which was based on the elements with reference to qualifications, experience and employment, especially, in view of the finding arrived by the Tribunal that the deceased was working as 'site supervisor' in a private construction company, which is not liable to be reckoned as on the higher side. The Tribunal has added 50% to the said amount, which is perfectly within the fair walls of the law, in view of the ruling rendered by the Apex Court in 2015 ACJ 1985 (cited supra), which stands in tact as on date. Considering that the 3[rd] claimant (the sibling of the deceased) was not liable to be treated as a dependent and that dependency, if any, could be considered only in respect of the parents instead of deducting 1/3 towards personal expenses, the Tribunal deducted 50% towards probable personal expenses and only the balance 50%
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was taken as contribution to the family, fixing the multiplicand as 6,750/- per month, for working of the₹ compensation for loss of dependency. The course pursued by the Tribunal is not liable to be termed as illegal, irregular or improper under any circumstance.
8. Yet another submission made by the learned senior counsel for the appellant is that the death was instantaneous and, as such, the amount of 25,000/-₹ awarded by the Tribunal towards pain and suffering is on the higher side. This Court finds that some intervention could be thought about in this regard, but, the question is whether it is actually necessitated. The deceased was admittedly of the age, 21 years and the parents were aged 50 and 48 respectively. Only a sum of 50,000/- has₹ been awarded by the Tribunal towards loss of love and affection. As a matter of fact, considering the age of the deceased and such other relevant factors and the law declared by the Apex Court as per the decision reported in 2013 (3) KLT 89 ( **Rajesh** v. **Rajbir Singh** ) **,** a sum of
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₹1,00,000/- could have been awarded towards loss of love and affection. This being the position, the nominal excess, if at all any, in respect of the head, pain and suffering and such other heads could be easily set off or redistributed under other relevant heads and as such, no intervention is necessary in the appeal.
9. It is relevant to note that in cases of this nature, the quantum of compensation payable is not liable to be measured on golden scales, nor is it necessary to have any microscopic analysis of the facts and figures. We find that the appeal is devoid of any merit and none of the grounds raised in support of the same could be held as tenable.
In the result, the appeal stands dismissed.
Sd/- **P.R. RAMACHANDRA MENON JUDGE**
Sd/- **ANIL K. NARENDRAN JUDGE**
bka/-
//True copy// PA to Judge
