MACA.No. 358 of 2014; Cross Objection Nos. 158 of 2015; MACA No. 375 of 2014; Cross Objection Nos. 159 of 2015 – United India Insurance Co. Ltd. v. Joe Mathew Joseph Elookunnel & Ors.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940** **MACA.NO. 358 OF 2014** **AGAINST THE AWARD IN O.P.(M.V.) NO.356/2011 OF OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 19.09.2013** **---------------------** ## **APPELLANT(S)/3RD RESPONDENT :** **----------------------------** **UNITED INDIA INSURANCE CO.LTD. ORISON COMPLEX, VADAKKANCHERRY ROAD, KUNNAMKULAM.P.O., THRISSUR DISTRICT.** **BY ADV.SRI.P.V.JYOTHI PRASAD** ## **RESPONDENT(S)/PETITIONERS AND RESPONDENTS 1 & 2:** **----------------------------------------------** **1. JOE MATHEW JOSEPH ELOOKUNNEL, PANACHAPPALLY, KOTTAYAM DISTRICT-686001.** **2. ANN MEERA MATHEW, ELOOKUNNEL, PANACHAPPALLY, KOTTAYAM DISTRICT-686001.** **3. SUPERIOR BETHANY ASHRAM, THRISSUR ROAD, KUNNAMKULAM.P.O., PIN-680503, THRISSUR DISTRICT.** **4. P.K. JAMES,S/O. KURIAPPAN, PAZHUNNAN HOUSE, WEST MANGAD.P.O., PIN-680503, KUNNAMKULAM, THRISSUR DISTRICT.** **(AGE OF RESPONDENTS NOT KNOWN TO THE APPELLANT)** **R1 & R2 BY ADVS. SRI.C.M.TOMY** **SRI.MATHEW SKARIA R3 & R4 BY ADVS. SRI.P.SANTHOSH (PODUVAL)** **SMT.R.RAJITHA** **SRI.K.D.SREEVISAKH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2018, ALONG WITH M.A.C.A. NO.375 OF 2014. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **------------------------** ## **M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015** ## **---------------------------------Dated this the 12[th ] day of June, 2018** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) Nos.356 of 2011 and 368 of 2011 of the Motor Accidents Claims Tribunal, Pala by the insurer. Learned Tribunal awarded compensation of Rs.38,36,250/- (Rupees Thirty Eight Lakh Thirty six Thousand Two Hundred and Fifty only) in O.P.(M.V.) No.356 of 2011 and Rs.35,11,750/- (Rupees Thirty Five Lakhs Eleven Thousand Seven Hundred and Fifty only) in O.P.(M.V.) No.368 of 2011 with 7.5% interest and proportionate cost to the claimants, who are the dependants and legal representatives of the deceased Mathew Joseph and Mary Thomas who died in a motor accident on 02.03.2011. Being aggrieved by that, the insurer preferred these appeals. 2. Claimants in both the cases are the children M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 2 and they are the dependants of the deceased Mathew Joseph and Mary Thomas. The deceased Mathew Joseph was working as Manager in Federal Bank, Bheemanadi Branch and Mary Joseph was working as a Clerk, Federal Bank at Kanjirappally branch. Claimants case in the lower court was that on 02.03.2011 at 10.00 a.m., the deceased Mathew Joseph was driving a car PY-01/L-2215 from Kanjirappally to Moolamattom through ThodupuzhaErattupetta public road, in which his wife Mary Thomas was a passenger and when they reached at Konippad, another vehicle KL-46/A-7977 driven in a rash and negligent manner hit against the Maruthi Car as a result, the passengers sustained serious injuries. Immediately they were removed to Marygiri Hospital and from there, they were referred to Caritas Hospital, Thellakom and they succumbed to the injuries. The accident was due to the rash and negligent driving of the vehicle by the driver of KL-46/A-7977 Bolero car. 3. In the lower court, the driver and owner of M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 3 the offending vehicle contested the matter and contended that the accident was due to the negligence of the deceased driver of the Maruthi car. The insurer admitted the insurance of the vehicle but disputed the income of the deceased. Both cases were tried jointly and the 1[st] claimant in the above petition was examined as PW1 and their documents were marked as Exts.A1 to A17. Respondent did not adduce any evidence. 4. Learned counsel appearing for the appellant insurer contended that both the claimants had attained majority and they are not entitled to get dependancy compensation. Both are employed and not depending upon the income of the deceased. Since they are getting independent income other than the income from their parents they are not the dependants in legal sense. On the other hand, they are entitled to get compensation for Loss of Estate. Hence, the excess amount awarded towards loss of dependency has to be set aside. 5. Learned counsel appearing for the claimants M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 4 filed Cross Objection Nos.158 and 159 of 2015 and contended that, at the time of accident, the claimants had no job and they were the dependants of the deceased. In the circumstance, both of them are entitled to get dependancy compensation and compensation for Loss of Estate. The evidence of PW1 is corroborating the above contention. The job promotion opportunity was not considered by the Tribunal at the time of awarding compensation. The first cross objectioner is employed in a private company and the second cross objectioner has got the job in dying in harness scheme at Federal Bank Limited. That is not a ground to deny the dependancy compensation, since they were unemployed at the time of accident. 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 M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 5 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 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. There was no dispute with regard to the employment of the deceased Mathew Joseph and Mary Thomas. On the basis of Salary Certificates issued from Federal Bank the learned Tribunal fixed the income. The income tax deduction was also made during the calculation. Ext.A9, A14 and A15 are the salary slips and Salary Certificates of both the deceased. No rebuttal evidence has been adduced in the lower court to take a M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 6 reduced rate of income. No contra evidence has been adduced in the lower court to rebut the above contention advanced by the cross objectioners. It is true that the cross objectioners could not pursue for their higher studies due to the sudden death of their parents who were looking after their education at that time. If they were alive, they could have attained higher degrees which will secure their life. Therefore, the dependency has to be calculated on the date of accident alone and the appellants claim is unsustainable in law and has to be rejected. ## 8. Apex Court in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2) KLT 802 (SC)** held as follows: 30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3[rd] ) where the number of M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 7 dependent family members is 2 to 3, one fourth (¼[th] ) where the number of dependant family members is 4 to 6, and one fifth (1/5[th] ) where the number of dependant family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant of the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third. M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 8 9. The deduction towards personal and living expenses of the deceased should be one-third (1/3[rd] ) where the number of dependent family members is 2 to 3. That was taken by the Tribunal. Therefore, there is no question of reduction of income warranted in this case. 10. 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 M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 9 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. Hence, where the deceased has a permanent job and was below 50 to 60 years, an addition of 15% has to be added M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 10 along with actual salary in addition to the income considering the future prospects, in view of **Pranay Sethi (supra)** . Therefore, determination of multiplicand and deduction for persons living expense are relevant factors for awarding just compensation. It is true that the claimants are the dependants of the deceased at the time of accident and they had no income and employment, they are entitled to get just amount as compensation. In the circumstances, for awarding just compensation increase in the multiplicand is necessary in view of **Pranay Sethi (Supra)** . In the above decision, it was also held that the 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. Here, in this case, the learned Tribunal awarded Rs.25,000/- for Funeral Expenses, Rs.5,000/- for Loss of Estate and no amount was awarded towards Pain and Sufferings in one case. 11. In the result, the award of the Motor M.A.C.A. Nos.358 of 2014 & Cross Objection No.158 of 2015 & M.A.C.A. Nos.375 of 2014 & Cross Objection No.159 of 2015 11 Accidents Claims Tribunal, Pala in O.P.(M.V.) Nos.356 of 2011 and 368 of 2011 is set aside and the matter is remitted to the Tribunal for fresh consideration. The amount, if any, deposited before the Tribunal shall be adjusted with final award. There is no merit in these two appeals and are dismissed accordingly. Cross Objection Nos.158 & 159 of 2015 are allowed and the Motor Accidents Claims Tribunal, Pala is directed to award just amount as compensation. Both parties are directed to appear before the Motor Accidents Claims Tribunal, Pala on 06.08.2018. On such appearance, the Tribunal shall dispose of the matter within a period of two months from the date of appearance of the parties. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge