MACA Nos. 2372 & 2900 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940** ## **MACA.No. 2372 of 2014** **AGAINST THE AWARD IN OPMV 1196/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,PUNALUR DATED 31-03-2014** ## **APPELLANT(S)/PETITIONERS:** ***1 K.BHANU,** **S/O KRISHNAN, MADHU NIVAS, SWAMY MUKKU, VAPPALA, CHEPRA P.O., KOTTARAKKARA, KOLLAM DISTRICT (DECEASED AND LEGAL HEIRS ARE RECORDED)** ## **2 SARASWATHY,** **S/O BHANU, MADHU NIVAS, SWAMY MUKKU, VAPPALA, CHEPRA P.O, KOTTARAKKARA, KOLLAM DISTRICT.** ## **3 MADHU,** **S/O BHANU, MADHU NIVAS, SWAMY MUKKU, VAPPALA, CHEPRA P.O, KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADV.SRI.ANCHAL C.VIJAYAN** ***IT IS RECORDED THAT THE 2ND AND 3RD APPELLANTS ARE THE LEGAL HEIRS OF THE DECEASED FIRST APPELLANT VIDE ORDER DATED 27/02/2018 IN MACA NO.2372/14.** ## **RESPONDENT(S)/RESPONDENTS:** **1. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPRUAM - 695001.** ## **2. S. SADASIVAN,** **VARIKKOLIL KUNNATHU VEEDU, NEELESWARAM, KOTTARAKKARA, KOLLAM - 691506.** ## **3. THE DISTRICT OFFICER,** **KERALA STATE INSURANCE DEPARTMENT, CHINNAKKADA, KOLLAM - 691001.** **R1 & R3 BY GOVERNMENT PLEADER SRI. M.P. ANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2018, ALONG WITH MACA NO. 2900/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RVS. 04/08/2018** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.2372 & 2900 of 2014 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 17[th] day of July, 2018 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) No.1196/2003 of the Motor Accidents Claims Tribunal, Punalur. On 22.08.2003 at 5.55 pm, one Rajan was riding a motor cycle KL-2N/5921 through Kottarakara T.B road junction from east to west, when he reached in front of smart club, the police jeep KL-01S/821 driven in a rash and negligent manner hit against the motor cycle, as a result, he sustained serious injuries. On the way to the hospital, he succumbed to the injuries. The learned Tribunal awarded compensation of Rs.3,67,000/- with 7.5% interest and cost. Being aggrieved by that, dependents of the deceased preferred M.A.C.A No.2372/2014 and respondents 1 and 3 in the lower court preferred M.A.C.A No.2900/2014. 2. In the lower court, the driver and owner of the jeep did not contest the matter. The insurer admitted ## **M.A.C.A Nos.2372 & 2900 of 2014** **==> picture [18 x 9] intentionally omitted <==** the insurance of the vehicle and disputed the accident. Originally the claim petition was filed under Section 163(A) of the Motor Vehicles Act, 1988. The above award was challenged before the High Court by filing M.A.C.A No.1443/2008 and this court remanded the OP for fresh consideration. Accordingly the appellant was permitted to amend the claim petition. After remand, claimants examined PW1 and PW2 and their documents were marked as Exts.A1 to A9. Respondents did not adduce any oral evidence. 3. The learned counsel appearing for the appellant contended that the deceased was a spray painter at JP Automobile, Kottarakara and was getting Rs.5,250/- at the time of accident. The learned Tribunal took Rs.3,500/- as the monthly income and low amount was awarded as dependency compensation. 4. The learned Public Prosecutor appearing for respondents, who are the appellants in M.A.C.A No. 2900/2014 contended that the accident was not proved by ## **M.A.C.A Nos.2372 & 2900 of 2014** **==> picture [18 x 9] intentionally omitted <==** the claimants in the lower court. Subsequently, the police referrred the case as motor occurence. The income was also not properly proved. Hence, when negligence is not proved, the appellant in M.A.C.A No.2900/2014 is not entitled to pay compensation to dependents of the deceased. 5. In view of the above contention, I have examined the contention advanced by both parties. PW1 is the mother of the deceased, her evidence shows that the accident was due to the rash and negligent driving of the jeep by its driver. Ext.A1 is the F.I.R in Crime No.673/2003 of Kottarakara Police station. Subsequently, the police referred the case. Ext.A2 is the copy of scene mahazar, Ext.A3 is the copy of vehicle mahazar and Ext.A6 is the copy of refer report. Even though, appellants in M.A.C.A No.2900/2014 attributed negligence against the rider of the motor cycle, no evidence has been adduced in the lower court to rebut the oral and documentory evidence advanced by PW1. Ext.A2 scene mahazar shows that the place of occurrence is ## **M.A.C.A Nos.2372 & 2900 of 2014** **==> picture [18 x 9] intentionally omitted <==** 2 m and 30 cm north from the southern tar end. The deceased was travelling from east to west and the Police jeep was plying from west to east. The road has a width of 5 meters only. In the absence of any rebuttal evidence, it is not fair to accept Ext.A6 to disprove the negligence of the driver of the jeep. If that be the position, the learned Tribunal rightly found negligence against the jeep and that finding is confirmed. 6. 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 ## **M.A.C.A Nos.2372 & 2900 of 2014** **-5-** 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 expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the tribunal. ## 7. 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._ _(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_ ## **M.A.C.A Nos.2372 & 2900 of 2014** **==> picture [18 x 9] intentionally omitted <==** _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._ 8. Claimants contended that the deceased was a spray painter and was getting Rs.7,000/-, but Ext.A9 show ## **M.A.C.A Nos.2372 & 2900 of 2014** **==> picture [18 x 9] intentionally omitted <==** that he was getting only Rs.5,250/-. PW2 was the exployer. But, the learned Tribunal took only Rs.3,500/-. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ the income is taken as Rs.5,250/-. The deceased was 28 years and 40% is added towards future prospects. The total income is Rs.7,350/-. The dependency compensation is Rs.7,350x12x17=Rs.14,99,400/-. The deceased was bachealor and half is to be deducted. The balance amount is Rs.7,49,700/-. The learned Tribunal awarded Rs.3,57,000/-. The balance is Rs.3,92,700/-. Along with that he is entitled to get Rs.15,000/- towards funeral expense, Rs.2,000/- towards damages to clothing, Rs.10,000/- towards pain and suffering and Rs.5,000/- towards loss of estate. The total compensation is Rs.4,24,700/-. In addition to the award amount, claimants are entitled to get Rs.4,24,700/- (Rupees Four Lakhs Twenty Four Thousand Seven Hundred only) with 7.5% interest and proportionate cost. The insurer is directed to satisfy the award within 30 days from the date of receipt ## **M.A.C.A Nos.2372 & 2900 of 2014** **-8-** of a copy of this judgment, failing which it will carry 12% interest from the date of default. M.A.C.A Nos.2372 & 2900 of 2014 are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng