Jaya @ Suma & Others v. Thomas K.A. & Mathew; The Manager, National Insurance Co. Ltd., Pala Branch

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939** **MACA.No.519 of 2008** **AGAINST THE AWARD IN OPMV 52/2006 of MACT PALA DATED 22-09-2007** ## **APPELLANTS/PETITIONERS** - **1 JAYA @ SUMA, W/O. SANTHOSH,** - **MAKKUNNEL HOUSE, KODUMPADY P.O., KADANAD VILLAGE.** - **2 SUNEESH @ ULLAS, S/O. SANTHOSH (MINOR),** - **3 SUDEEV @ SUDDESH, S/O. -DO- (MINOR),** - **4 KRISHNAN, S/O. KESAVAN,** - **MAKKUNNEL HOUSE, KODUMPIDY P.O., KADANAD VILLAGE.** - **5 MEENAKSHY, W/O. KRISHNAN,** - **6 OMANA, D/O. MEENAKSHY, (UNSOUND PERSON),** - **REP. BY GUARDIAN AND NEXT FRIEND MEENAKSHY,, APPELLANT** - **NO.5., (MINOR APPELLANTS 2 AND 3 REP. BY GUARDIAN AND, NEXT** - **FRIEND, MOTHER, APPELLANT NO.1).** **BY ADVS.SRI.MATHEW JOHN (K)** - **SRI.AJEESH K.SASI** ## **RESPONDENT(S)/RESPONDENTS:** **1. THOMAS K.A., S/O. ANTONY,** - **KORKUZHIYIL HOUSE, MELUKAVU P.O.** **2. MATHEW, S/O. ANTONY,** **3. THE MANAGER, NATIONAL INSURANCE CO. LTD., PALA BRANCH.** **R,R3 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **bng** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.519 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 15[th] day of March, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.52/06 of Motor Accidents Claims Tribunal, Pala by the dependents and legal representative of the deceased Santhosh. On 31.12.2005, Santhosh sustained injuries in a motor accident and on the way to the hospital, he died. His dependents and legal representatives preferred the above claim petition and the learned Tribunal awarded compensation of Rs.3,17,000/with interest and cost. Being aggrieved by that amount, the dependents preferred this appeal. 2. There is no dispute with regard to the accident. The deceased was riding a motorcycle No.KL5/Q-8475, when he reached at the place of occurrence, another motorcycle KL-5/S-7859 driven in a rash and negligent manner hit against the above vehicle and both **M.A.C.A No. 519 of 2008** **-2-** vehicles collided. In the lower court, the driver and owner took a joint contention. The insurer of the offending vehicle admitted the insurance of the vehicle. The appellants did not adduce any oral evidence but the documents were marked as Exts.A1 to A8. Respondents did not adduce any evidence. 3. Apex Court in _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (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._ **-3-** ## **M.A.C.A No. 519 of 2008** _(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 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._ **M.A.C.A No. 519 of 2008** **-4-** _(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. 4. The dispute is with regard to the quantum alone. The learned counsel appearing for the appellants contended that the deceased was a rubber tapper and was getting Rs.5,000/- per month. The learned Tribunal took monthly income of Rs.2,000/- for calculating dependency compensation. It is true that, the dependents are entitled to get just amount as compensation. Apex court in _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ held that in the absence of any contra evidence, the Tribunal cannot reduce the income to lower rate. Appellants claimed Rs.5,000/- as the income and that can be considered for calculating the dependency. 40 percentage of the income **-5-** ## **M.A.C.A No. 519 of 2008** has to be added with the income in view of _**Pranay Sethi**_ case (supra) that is Rs.2,000/-. Total monthly income will be Rs.7,000/-. The deceased was aged 35 years and the multiplier is 16. There are 6 dependents, ¼ is to be deducted. The total dependency will come to Rs.7,000x12x16x3/4= Rs.10,08,000/-. 5. The learned Tribunal awarded Rs.2,72,000/for loss of dependency. The balance amount is Rs.7,36,000/(Rs.10,08,000-2,72,000). Apex court in _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ held as follows: _“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”._ The Tribunal awarded Rs.3,000/- for funeral expenses, Rs.15,000/- for loss of consortium and no amount was added for loss of estate. Therefore, the appellants are entitled to ## **M.A.C.A No. 519 of 2008** **-6-** get an additional amount of Rs.12,000/- for funeral expenses, Rs.25,000/- for loss of consortium and Rs.15,000/for loss of estate. Just amount was awarded on the other heads. Therefore, the total amount comes to Rs.7,36,000+12,000+25,000+15,000=Rs.7,88,000/as additional compensation. In addition to the awarded amount of Rs.3,17,000/-, the appellants are entitled to get Rs.7,88,000/- with 9% interest from the date of petition with proportionate cost. The insurer is directed to satisfy the award amount within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. Sd/- **P.D.RAJAN** **JUDGE** bng //True Copy// P.A to Judge ## **M.A.C.A No. 519 of 2008** **-7-** ## H.A.C.A.No.519 of 2008 ## ±rm of coat8 for the±pp.l]an±£ . / Court Fee paid Stamp` on Vakalath Senior Advocate`s Fee Junior' Advocate's Fee cost incurred in obtaining L.C.judgment and decree Petition Fee Process Fee - I loo/ -,,, {1®/-,,, I 418®®/<(certj.fled) - { 2®9®®/.|certified) ## Total : {62918/J ---------- Proportionate costs for the Appellants in this appeal - : I 61974/-(Rupees sixty one thousand nine hundred and seventy four only) Dei]uty Registrar ee sibned on: Q. c]. Q®