MACA.NO. 1936 OF 2013 (Against the Award in O.P.(M.V.) No.1147/2010 of the Additional Motor Accidents Claims Tribunal, Kottayam dated 27-02-2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940** **MACA.NO. 1936 OF 2013** **AGAINST THE AWARD IN O.P.(M.V.) NO.1147/2010 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 27-02-2013** ## **APPELLANT/1 & 2 PETITIONER :** - **1 A.O. OUSEPH,AGED 72 YEARS, S/O. LATE OUSEPH, KANDANATTU HOUSE, NEERIKADU P.O., KOTTAYAM DISTRICT.** **2 K.T. LEELA,AGED 68 YEARS, W/O. O.A. OUSEPH, KANDANATTU HOUSE, NEERIKADU P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.JACOB E SIMON SRI.SHIBY ALEX** ## **RESPONDENTS/RESPONDENTS/3RD PETITIONER :** - **1 NAZEER V.K.,VATHUKKAPARAMBIL HOUSE, KAKANADU.P.O., ERNAKULAM, PIN-682030.** - **2 BENSIL MOHAMMED,UZHAVATH HOUSE, MATHAR NAGAR, THRIKARA VILLAGE, CHANGAMPUZHA NAGAR, PIN-682024.** - **3 RELIANCE GENERAL INSURANCE CO. LTD., REP. BY ITS MANAGER(CLAIMS), 1 & 2ND FLOOR, VISHNU BUILDING, K.P. VALLON ROAD, KADAVANTHARA COCHIN, PIN-682020.** **MACA.NO. 1936 OF 2013** **2** **4 RAAKHEE,AGED 35 YEARS D/O. O.A. OUSEPH, KANDANATTU HOUSE, NEERIKADU P.O., KOTTAYAM DISTRICT, PIN-686564.** **BY ADVS. SRI.GEORGE SEBASTIAN SRI.K.B.RAMANAND SRI.GEORGE CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 1936 OF 2013** **3** ## **JUDGMENT** This appeal is preferred against the award in O.P.(M.V.) No.1147 of 2000 of the Additional Motor Accidents Claims Tribunal, Kottayam by the legal representatives of the deceased Rakesh. On 03.07.2010 at 5.30 p.m., the deceased was riding a motor cycle KL-5/F-8378 from Ernakulam to Ettumanoor and when he reached near Kuruppumthara junction, another car KL-7/BM-6789 came from the opposite direction in a rash and negligent manner hit against the motorcycle, as a result he sustained serious injuries and while undergoing treatment, he succumbed to the injuries. The learned Tribunal awarded compensation of Rs.10,97,000/(Rupees Ten Lakh Ninety Seven Thousand only) with 7.5% interest and cost. Being aggrieved by that, the legal representatives of the deceased preferred this appeal. 2. The accident was not disputed by the 1[st] respondent in the lower court. The owner of the vehicle was ex parte. Insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A16. **MACA.NO. 1936 OF 2013** **4** 3. Learned counsel appearing for the appellants contended that at the time of accident, the deceased was working as a Civil Engineer at Devicolam Distilleries and was getting an amount of Rs.22,500/- per month, but while awarding compensation, the learned tribunal took an yearly income as Rs.2,06,800/- after deducting the allowances including House Rent Allowance and just amount was not awarded. The deceased was aged 28 years at the time of accident and was a bachelor. The legal representatives are entitled to get just amount as compensation. 4. In death case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the fatal accident. 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 **MACA.NO. 1936 OF 2013** **5** 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. ## 5. 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, **MACA.NO. 1936 OF 2013** **6** 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. 6. It is submitted that the deceased was an income tax payee, but no other documentary evidence has been produced before this court or in the lower court to prove the monthly income except Form-16. In the lower court, claimants filed Ext.A11 copy of Form-16 given by the responsible persons for deducting the tax at Devicolam Distilaries Ltd., Kakkanad. His yearly income after deducting the conveyance allowance **MACA.NO. 1936 OF 2013 7** and HRA was shown as Rs.2,06,800/-. HRA and other allowances were deducted in Form-16 at the time of payment of income tax. It is pertinent to note that HRA is not deductable since it is included along with the salary. It is not taxable. ## 7. Apex Court in **Kalpanaraj and Others v. Tamil Nadu State Transport Corporation ( 2014 KHC 4288)** held as follows: *** So far as House Rent Allowance is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimely death the claimants are deprived of such benefit which they would have enjoyed if the deceased is alive. On the other hand, allowances, like Travelling Allowance, allowance for newspapers/ periodicals, telephone, servant, club-fee, car maintenance etc., by virtue of his vocation need not be included in the salary while computing the net earnings of the deceased. The finding of the tribunal that the deceased was getting Rs.1,401/- as net income every month is unsustainable as the deductions made towards vehicle loan and other deductions were also taken into consideration while fixing the monthly income of the deceased. The above finding of the tribunal is contrary to the principle of 'just compensation' enunciated by the Supreme Court in the judgment in Helen's case (1 supra). The Supreme Court in Cocord of India Insurance Co. v. **MACA.NO. 1936 OF 2013** **8** Nirmaladevi and Ors. 1980 ACJ 55(SC) held that determination of quantum must be liberal and not niggardly since law values life and limb in a free country 'in generous scales'”. (Emphasis laid down by this Court). 8. HRA is Rs.27,600/-. That amount has to be added along with aggregate amount of Rs.2,06,800/- and then the total income will be Rs.2,34,400/- (2,06,800+27,600). In view of **Pranay Sethi** (Supra) 40% (2,34,400x40%=93,760) has to be added to the income and the total income is 3,28,160/(2,34,400+93,760) . The multiplier is 17. The deceased was a bachelor hence, half of the amount has to be deducted. Accordingly, the compensation for loss of dependency will be Rs.27,89,360/- (3,28,160x17x1/2). Out of which, 10% (Rs.2,78,936/-) is deducted towards income tax. The balance is Rs.25,10,424/- (27,89,360-2,78,936). The learned Tribunal awarded Rs.10,64,700/- and the balance is Rs.14,45,724/-. 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.3,500/- for Funeral Expenses and Rs.10,000/- for **MACA.NO. 1936 OF 2013 9** Loss of estate. Hence an additional amount of Rs.11,500/- is awarded towards Funeral expenses and Rs.5,000/- is awarded towards Loss of estate. The total enhanced compensation is Rs.14,62,224/- (Rupees Fourteen Lakh Sixty Two Thousand Two Hundred and Twenty Four only). Accordingly, the appellants are entitled to get an enhanced compensation of Rs.14,62,224/- (Rupees Fourteen Lakh Sixty Two Thousand Two Hundred and Twenty Four only) with 9% interest and proportionate cost in addition to Rs.10,97,000/- (Rupees Ten Lakh Ninety Seven Thousand only) awarded by the learned Tribunal. 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 12% interest from the date of default. ## M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN JUDGE** /True Copy/ P.A. To Judge NS