Mangatuthodiyil Krishnankutty and Others v Aneeskhan and P. Kutten and United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 9TH DAY OF JULY 2018 / 18TH ASHADHA, 1940** **MACA.No. 781 of 2007** **OP(MV).339/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS/PETITIONERS :** **1 MANGATUTHODIYIL KRISHNANKUTTY, S/O.LATE APPUNNI, 57 YEARS, P.O.PALEMADU.** **2 MANGATUTHODIYIL LAKSHMI, W/O.KRISHNANKUTTY, AGED 45 YEARS, PALEMADU.** - **3 MANGATUTHODIYIL RAJANI, D/O.KRISHNANKUTTY, AGED 19 YEARS, PALEMADU.** - **4 MANGATUTHODIYIL RAMESH, (MINOR), S/O.KRISHNANKUTTY, PALEMADU.** **BY ADV.SRI.K.ANAND** ## **RESPONDENTS/RESPONDENTS :** **1. ANEESKHAN, S/O MUHAMMED ALI, PALLIPARAMBAN HOUSE, P.O.EDAKKARA (DRIVER).** **2. P.KUTTAN, S/O.KEERAN, PAPPADAN HOUSE, P.O.EDAKKARA (OWNER).** **3. UNITED INDIA INSURANCE CO. LTD., NILAMBUR.** **R2 BY ADV. SRI.DEVIDAS.U.K** **R3 BY ADV. SRI.P.MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2018, ALONG WITH MACA.1195/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **30.7.2018** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.1195 of 2005 &** ## **M.A.C.A. No. 781 of 2007 ---------------------------------Dated this the 9[th] day of July, 2018** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) Nos.2018 of 2002 and 339 of 2001 of the Motor Accidents Claims Tribunal, Manjeri. On 11.01.2002 at 9.30 a.m., while the deceased was travelling in a jeep from Barbermukku to Palemadu and when he reached at Unichandam, he was thrown away from the jeep and sustained serious injuries and while undergoing treatment, he succumbed to the injuries. The learned Tribunal awarded a total compensation of Rs.1,83,000/(Rupees One Lakh Eighty Three Thousand only) with 6% interest and proportionate cost. Being aggrieved by that, the dependents of the deceased preferred M.A.C.A. No.1195 of 2005 against O.P.(M.V.) No.2018 of 2002 and father, his second wife and the children born in that wedlock preferred M.A.C.A. No.781 of 2007 against O.P. (M.V.) No.339 of 2001. 2. The accident was not disputed by the M.A.C.A. No.1195 of 2005 & 2 M.A.C.A. No. 781 of 2007 respondents in the lower court. The driver and owner were set ex parte. The insurer admitted the insurance of the vehicle. O.P.(M.V.) No.339 of 2001 and O.P.(M.V.) No.2018 of 2002 were tried jointly. The evidence consists of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A7. The learned Tribunal awarded the following amounts as compensation. Transport to hospital Rs.1,000/-, Funeral expenses Rs.2,000/- and Loss of estate (15000x2/3x18) Rs.1,80,000/-. The total compensation awarded by the Tribunal is Rs.1,83,000/- (Rupees One Lakh Eighty Three Thousand only). 3. Learned counsel appearing for the appellants in M.A.C.A. No.1195 of 2005 contended that the deceased was their brother and was earning an amount of Rs.4,500/- per month, but the learned Tribunal awarded a meagre amount as compensation. Appellants in M.A.C.A. No.781 of 2007 are the father, his 2[nd] wife and children and they are entitled to get only the father's share. Just amount was not awarded by the tribunal. M.A.C.A. No.1195 of 2005 & 3 M.A.C.A. No. 781 of 2007 4. 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 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. 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 M.A.C.A. No.1195 of 2005 & 4 M.A.C.A. No. 781 of 2007 ## 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, 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 ## M.A.C.A. No.1195 of 2005 & 5 M.A.C.A. No. 781 of 2007 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 admitted by the appellants in M.A.C.A. No.781 of 2007 that the father alone is the legal heir of the deceased. Only the class one heirs are entitled to get a share in the compensation. Hence, the appellants in M.A.C.A. No.1195 of 2005 and the 1[st] appellant in M.A.C.A. No.781 of 2007 are the class one heirs and they are entitled to get proportionate share in the compensation awarded. If that be the position, the appellants in M.A.C.A. No.1195 of 2005 are entitled to get one share each and father alone, who is the first appellant in M.A.C.A. No.781 of 2007 is entitled to get one share. The father claimed that the deceased was M.A.C.A. No.1195 of 2005 & 6 M.A.C.A. No. 781 of 2007 getting an amount of Rs.5,000/- per month and the sisters claimed that their brother was getting an amount of Rs.4,500/- per month as his income. 7. In view of **Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited [(2014) 2 Supreme Court Cases 735]** appellants are entitled to get just amount as compensation. Apex Court in **Sarla Verma** v. **Delhi Transport Corporation [(2010) 2 KLT 802 (SC)]** held that, “ where the deceased is unmarried, the deduction towards personal and living expenses of the deceased should be half. Even though the appellants contended that the deceased was getting Rs.4,500/- and Rs.5,000/per month, no documents were produced in the lower court to substantiate that contention. In the absence of such evidence, this Court fix Rs.4000/- as his monthly income. Apex Court in **Pranay Sethi (Supra)** held as follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- xx M.A.C.A. No.1195 of 2005 & 7 M.A.C.A. No. 781 of 2007 (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. Hence, 40% of the income (4000x40%) is added towards future prospects, the income is Rs.5,600/-. Since the deceased was a bachelor, ½ of the amount has to be deducted. Hence the appellants in M.A.C.A. No.1195 of 2005 and the 1[st] appellant in M.A.C.A. No.781 of 2007 are entitled to get an amount of Rs.6,04,800/(5600x12x18x1/2) for Loss of dependency. 8. In **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 an amount of Rs.2,000/towards funeral expenses and an amount of Rs.1,80,000/- (15000x2/3x18) is awarded under Loss of Estate. Hence, the amount awarded towards Loss of M.A.C.A. No.1195 of 2005 & 8 M.A.C.A. No. 781 of 2007 Estate Rs.1,80,000/- is hereby set aside and the following amounts are awarded enhanced as compensation. Funeral expenses Rs.13,000/-, Loss of estate Rs.15,000/-, Damages to cloths Rs.2000/- and Love and affection Rs.15,000/-. The total compensation is Rs.6,49,800/(Rupees Six Lakhs Forty Nine Thousand Eight Hundred only). Accordingly, the appellants in M.A.C.A. No.1195 of 2005 are entitled to get one share each and the 1[st] appellant in M.A.C.A. No.781 of 2007 are entitled to get one share from Rs.6,49,800/- (Rupees Six Lakhs Forty Nine Thousand Eight Hundred only) with 9% interest and proportionate cost from the date of petition till realisation with proportionate cost. 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 12% interest from the date of default. There is a delay of 657 days in filing M.A.C.A. No.781 of 2007. Appellant Nos.2, 3 and 4 in M.A.C.A No.781 of 2007 are the dependants of the deceased 1[st] appellant and they are entitled to get share of the M.A.C.A. No.1195 of 2005 & 9 M.A.C.A. No. 781 of 2007 compensation awarded to the 1[st] appellant in M.A.C.A No.781 of 2007 alone. Hence, the appellants in M.A.C.A. No.781 of 2007 are not entitled to get any interest for 657 days delay in filing the appeal. These M.A.C.As are disposed of with the above observations. ## Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge