M.A.C.A. No. 1000 of 2010

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940** **MACA.NO. 1000 OF 2010** **AGAINST THE AWARD IN O.P(M.V.) NO.1040/2006 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 05-09-2008** **-------------------------------** **ADDRESS OF THE APPELLANT(S)/PETITIONERS 1 TO 3 :** **--------------------------------------------** - **1 SIJI, AGED 36 YEARS, W/O.KURIACHAN, THAZHATHUCHELAKATTIL HOUSE, CHEMPLAVU KARA, KIDANGOOR VILLAGE, KOTTAYAM DISTRICT.** - **2 SANDRA @ BABY SANDRA (MINOR), REP.BY MOTHER AND NATURAL GUARDIAN SIJI, THAZHATHUCHELAKATTIL HOUSE, CHEMPLAVU KARA, KIDANGOOR VILLAGE, KOTTAYAM DISTRICT.** - **3 SNEHA (MINOR), REP.BY MOTHER AND NATURAL GUARDIAN SIJI, THAZHATHUCHELAKATTIL HOUSE, CHEMPLAVU KARA, KIDANGOOR VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS.SRI.SHIJU VARGHEESE SRIPRAMOJ ABRAHAM** **SRI.RENDEEP PREM** **ADDRESS OF THE RESPONDENTS/ RESPONDENTS 1 TO 3/PETITIONERS 4 AND 5 :** - **--------------------------------------** **1. VARGHESE,S/O.PATHROSE,PARAKATTU HOUSE, PONGOLA KARA,ARACKKAPADY VILLAGE, ERNAKULAM DISTRICT.** **2. RAJAMMA THOMAS,W/O.THOMAS** - **PARUTHIKADU HOUSE,HOUSE NO.50/8, CHERANELLOOR P.O, KOCHI-34.** **3. THE UNITED INDIA INSURANCE CO.LTD REP.BY ITS BRANCH MANAGER,JOSE TRUST BUILDING,** - **P.B. NO.3644,CHITTOOR ROAD, KOCHI-682 035.** **4. M.K.JOHN,S/O.KURIAN,** **THAZHATHUCHELAKATTIL HOUSE, CHEMPLAVU KARA,KIDANGOOR VILLAGE, KOTTAYAM DISTRICT.** ## **5. ROSAMMA,W/O.JOHN,** **THAZHATHUCHELAKATTIL HOUSE,CHEMPLAVU KARA, KIDANGOOR VILLAGE, KOTTAYAM DISTRICT.** **R3 BY ADV. SRI.A.A.MOHAMMED NAZIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.1000 of 2010 ---------------------------------Dated this the 4[th] day of April, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1040 of 2006 of the Motor Accidents Claims Tribunal, Pala by the dependants of the deceased Kuriachan who met with an accident on 01.10.2006 at 2.30 p.m., while riding a motor cycle. The learned tribunal awarded an amount of Rs.6,79,800/- (Rupees Six Lakh Seventy Nine Thousand Eight Hundred only) with interest and cost as compensation to the dependants. Being dissatisfied with the award amount, they approached this Court with this appeal. 2. There is no dispute with regard to the accident. The claimants case in the lower court was that, while the deceased was riding a motor cycle KL-5/N-1783 through M.C. Road and reached at the place of occurrence, another vehicle KL-7/AJ8930 driven in a rash and negligent manner hit against the motor cycle, as a result, Kuriachan and the pillion rider fell down and M.A.C.A. No.1000 of 2010 2 sustained serious injuries. While undergoing treatment, he succumbed to the injuries. The claimants did not adduce any oral evidence. The claimants petition was tried along with O.P.(M.V.) No.1036 of 2006 and O.P.(M.V.) No.1037 of 2006 and all the three cases were disposed of by a common judgment. The evidence consists of documentary evidence of Exts.A1 to A23. 3. Learned counsel appearing for the appellants contended that very low amount was awarded by the tribunal as compensation. They are entitled to get just amount as compensation. The deceased was an electrical wireman and was getting Rs.7,000/- per month, but the learned tribunal took only Rs.3,000/- as his income for assessing compensation. 4. Apex Court in **General Manager, Kerala State Road Transport Corporation** v. **Susamma Thomas 1994 (1) KLT 67 (SC)** held that “in fatal accident action, measure of damages is the pecuniary loss suffered and is likely to be suffered by each ## M.A.C.A. No.1000 of 2010 3 ## dependant as a result of the death” in which, paragraph 9 reads as follows: 9. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.” 5. Considering the above principle, the Apex Court in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2) KLT 802 (SC)** held that just multiplier has to be considered. The age of the deceased was 36 years. Hence, the multiplier is 15. Another decision in **Dixit Kumar and Ors.** Vs. **Om Prskash Goel 2017 ACJ 2057** the Apex Court held that, in the absence of any contra evidence, the income stated by the claimant has to be M.A.C.A. No.1000 of 2010 4 considered. The appellants claimed that the deceased was working as an Electrical Wireman and was getting an amount of Rs.7,000/- as his monthly income. The learned counsel for the insurer has no objection in considering Rs.5,000/- as the income for an Electrical Wireman and his monthly income is fixed as Rs.5,000/- for calculating compensation. 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 ## M.A.C.A. No.1000 of 2010 5 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. (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. The dependants are entitled to get just M.A.C.A. No.1000 of 2010 6 amount as compensation. In future they will be beset with difficulties because of the increase of standard of living because from the nature of things, it has to take into account many imponderables that they would face in future. The life expectancy of the dependants and the amount the deceased would have contributed during his life time are very relevant at the time of considering compensation. The deceased was a self employed person, hence 40% of the established income has to be added along with the income while calculating loss of dependancy. Established income means the income minus tax component. There are five dependants hence ¼[th] has to be deducted. Accordingly, the Loss of Dependency comes to Rs.9,45,000/- (7,000x12x15x3/4). The learned tribunal awarded an amount of Rs.3,84,000/- on that head. The balance is Rs.5,61,000/-. 8. Apex Court in **Pranay Sethi (Supra)** held that reasonable figures on conventional heads, namely, Loss of Estate, Loss of Consortium and Funeral Expenses ## M.A.C.A. No.1000 of 2010 7 should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. In this case, the learned tribunal awarded an amount of Rs.3,000/- for Funeral expenses, an amount of Rs.15,000/- for Loss of Consortium and no amount was awarded for Loss of Estate. Hence, additional amount of Rs.12,000/- is awarded for Funeral Expenses, Rs.25,000/is awarded for Loss of Consortium and Rs.15,000/- is awarded for Loss of Estate. Then, the total additional compensation comes to Rs.6,13,000/(5,61,000+12,000+25,000+15,000). The deceased had undergone treatment for 19 days. The learned tribunal awarded an amount of Rs.2,50,800/- towards Medical Expenses. I am not interfering in that finding since the claimants might have incurred huge amount more than that amount. Accordingly, the claimants are entitled to get an additional compensation of Rs.6,13,000/- (Rupees Six Lakhs Thirteen Thousand only) with 7% interest per annum from the date of petition till realisation with proportionate cost in addition to Rs.6,79,800/- (Rupees Six Lakh Seventy Nine Thousand Eight Hundred only) ## M.A.C.A. No.1000 of 2010 8 awarded by the learned tribunal. The 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 interest at the rate of 12% from the date of default. This appeal is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge