Emily George, Rose Mary George and Geo Sebi George v. Noushadu A.J., Suneesh and ICICI Lombard General Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940** **MACA.No. 1370 of 2015** **O.P(M.V)NO. 66/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA --------** ## **APPELLANT(S)/PETITIONERS :** - **1 EMILY GEORGE, AGED 50 YEARS,** **W/O.LATE GEORGE, OONNANAL HOUSE, MANKUZHY, UDUMBANNOOR, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN 685 595.** - **2 ROSE MARY GEORGE, AGED 24 YEARS,** **D/O. LATE GEORGE, OONNANAL HOUSE, MANKUZHY, UDUMBANNOOR, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN 685 595.** - **3 GEO SEBI GEORGE, AGED 22 YEARS,** **D/O.LATE GEORGE, OONNANAL HOUSE, MANKUZHY, UDUMBANNOOR, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN 685 595.** **BY ADVS.SMT.P.P.STELLA** **SRI.BIJIMON C.CHERIAN** ## **RESPONDENT(S)/RESPONDENTS:** **1. NOUSHADU A.J., S/O.JABBAR, ARANJANAL HOUSE, EDAMARUKU KARA, UDUMBANNOOR VILLAGE, NOW RESIDING AT PAZHOOKARA BHAGAM, KARIMANNOOR P.O, IDUKKI DISTRICT, PIN 686 581.** **2. SUNEESH,** **S/O.SUKUMARAN, PUTHENPARAMBIL HOUSE, PUZHAVATHU, CHANGANASSERY P.O, KOTTAYAM DISTRICT, PIN 686 031.** **3. ICICI LOMBARD GENERAL INSURANCE CO. LTD, 5TH FLOOR, KANNANKERI ESTATE, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI 682 031.** **R3 BY ADV. SRI.LATHEESH SEBASTIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **03.08.2018** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.1370 of 2015 ---------------------------------Dated this the 6[th] day of July, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.66 of 2008 of the Motor Accidents Claims Tribunal, Thodupuzha by the dependants of the deceased George Devassy. On 10.08.2007 at 6.00 p.m., the deceased George Devassy met with an accident and subsequently he died due to the injuries sustained in the accident. The dependants and legal representatives of the deceased preferred the above O.P.(M.V.) and the learned Tribunal awarded compensation of Rs.11,10,005/(Rupees Eleven Lakh Ten Thousand and Five only) with 8.5% interest and proportionate cost. Being aggrieved by that, they preferred this appeal. 2. There is no dispute with regard to the accident in the lower court. Appellants case in the lower court was that on 10.08.2007 at 6.00 p.m., while the deceased was riding a motorcycle KL-06/A-4222 along Thodupuzha- Udumbannoor public road and when he M.A.C.A. No.1370 of 2015 2 reached at Ezhumuttom, another vehicle KL-05/S-9093 driven in a rash and negligent manner hit against the motorcycle, as a result, he sustained serious injuries and while undergoing treatment at Holy Family Hospital, Muthalakkodom, he succumbed to the injuries on 11.08.2007. The driver and owner of the vehicle were ex parte in the lower court. The insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts. A1 to A18. Respondents evidence consist of documentary evidence of Ext.B1. 3. Learned counsel appearing for the appellants contended that the deceased was an income tax payee and was doing rubber business. They claimed Rs.12,500/per month, but the learned Tribunal in the absence of any contra evidence, took only Rs.8000/- for calculating dependency compensation which is on a lower side. 4. Learned counsel appearing for the insurer contended that the income tax statement during the year 2006-2007 shows that the deceased had got an yearly ## M.A.C.A. No.1370 of 2015 3 income of Rs.90,028/-, but they did not produce any documents in the previous years to prove that he was getting more than that, but he produced the income tax statement of the assessment year 2007-2008 which was only for four months. Therefore, just amount was awarded by the Tribunal and no interference is necessary. 5. 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 M.A.C.A. No.1370 of 2015 4 period of their life expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the Tribunal. 6. 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 M.A.C.A. No.1370 of 2015 5 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 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. 7. On a perusal of the documents, it is clear that the deceased was a business man and the dependants claimed Rs.12,500/- per month, but the income tax statements Exts.A10 and A11, show that he was getting about Rs.90,000/- which may increase or decrease in future. Considering the nature of rubber business, it is presumed that the price is lowering day by ## M.A.C.A. No.1370 of 2015 6 day. Even then, in the interest of justice, I fix his monthly income as Rs.9,000/- in view of the decision of the Apex Court in **Dixit Kumar and Ors.** Vs. **Om Prskash Goel 2017 ACJ 2057** . Apex Court in **Pranay Sethi (Supra)** held that in a case where 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 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. The deceased was aged 45 years at the time of accident, hence 25% (9000x25%) of the income has to be added and the income comes to Rs.11,250/- (9000+2250). Apex Court in **Sarla Verma v.** **Delhi Transport Corporation [2010 (2) KLT 802** **(SC)]** held that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be 1/3[rd] , where the number of ## M.A.C.A. No.1370 of 2015 7 dependent family members is 2 to 3. In this case, there are three dependants. Hence 1/3[rd] has to be deducted from the total dependency compensation. The multiplier is 14. Hence the appellants are entitled to get an amount of Rs.12,60,000/- (11250x12x14x2/3) for Loss of dependency. The learned Tribunal awarded Rs.8,96,000/on that head, the balance is Rs.3,64,000/- (Rupees Three Lakh Sixty Four Thousand only). 8. 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. In this case, the learned Tribunal awarded Rs.25,000/towards Funeral Expenses, Rs.40,000/- towards Loss of Consortium and Rs.10,000/- for Loss of estate. Hence, an amount of Rs.10,000/- from Funeral expenses is to be deducted and an amount of Rs.5,000/- has to be added towards Loss of estate. The total enhanced compensation comes to Rs.3,59,000/- (3,64,00010000+5000) (Rupees Three Lakh Fifty Nine Thousand M.A.C.A. No.1370 of 2015 8 only). Accordingly, the appellants are entitled to get an enhanced compensation of Rs.3,59,000/- (Rupees Three Lakh Fifty Nine Thousand only) with 8.5% interest and proportionate cost in addition to Rs.11,10,005/- (Rupees Eleven Lakh Ten Thousand and Five only) awarded by the learned Tribunal. The insurance Company 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. It is made clear that the appellants are not entitled to get any interest for the period of delay in filing the appeal. M.A.C.A is disposed of as above. NS Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge