Mytheenkunju and Mymoonath v. Binu K.V., The New India Assurance Co. Ltd., and Ajul

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940** **AGAINST THE AWARD IN O.P.(M.V.) NO.1638/2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 16-09-2017** **---------------------------------** **APPELLANT(S)/PETITIONERS :** **-------------------------** **1 MYTHEENKUNJU,AGED 63 YEARS, S/O.PAREED, KONNAMKUDY HOUSE, KUMMANODU, PATTIMATTOM P.O., ERNAKULAM DISTRICT.** **2 MYMOONATH, AGED 54 YEARS, W/O.MYTHEENKUNJU, KONNAMKUDY HOUSE, KUMMANODU, PATTIMATTOM P.O., ERNAKULAM DISTRICT.** **BY ADV.SRI.K.K.MOHAMED RAVUF** **RESPONDENT(S)/RESPONDENTS :** **------------------------** **1. BINU K.V., S/O.VAKKACHAN K.E, 1/484, KOONATHAN HOUSE, OKKAL.P.O., PERUMBAVOOR, ERNAKULAM DISTRICT-683 550.** **2. THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, NEHA TOWERS, NEAR GOVERNMENT HOSPITAL, K.H.IYER ROAD, PERUMBAVOOR-683 542.** **3. AJUL, S/O.MYTHEEN KUNJU, KONNAMKUDY HOUSE, KUMMANODU, PATTIMATTOM P.O., ERNAKULAM DISTRICT-683 562.** **BY SRI.A.A.ZIYAD RAHMAN** **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.534 of 2018 ---------------------------------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.1638 of 2015 of the Motor Accidents Claims Tribunal, Perumbavoor by the legal representatives of the deceased Aisal who died in a motor accident on 27.09.2015. The learned tribunal awarded an amount of Rs.16,86,900/- (Rupees Sixteen Lakh Eighty Six Thousand Nine Hundred only) with interest and proportionate cost as compensation. Being dissatisfied with the award amount, they approached this court with this appeal. Respondents have no dispute with regard to the accident and the insurer admitted the insurance of the vehicle. 2. The learned counsel appearing for the appellants submitted that the deceased was a Male Nurse at Ahmednagar Institute of Medical Sciences and was getting an amount of Rs.22,200/ per month, but the learned tribunal has taken Rs.9,415/- and 50% increase that is Rs.14,175/- as his monthly income. This reduction ## M.A.C.A. No.534 of 2018 2 of income by the tribunal without any reason is unsustainable in law. 3. Learned counsel for the respondent contended that just amount was awarded by the tribunal and no interference is necessary. 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 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 M.A.C.A. No.534 of 2018 3 might have lost his employment or income altogether.” ## 5. In **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** the Apex Court held that; 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, 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 M.A.C.A. No.534 of 2018 4 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. In this context, I may refer the salary slip and other documents, which was produced to prove the income of the deceased. Ext.A9 is the details of remuneration and Ext.A10 is the salary slip for the month of August 2015 issued from Ahmednagar Institute of Medical Sciences which show the split details of remuneration issued by the hospital authorities. The Nursing Manager who issued the Salary Certificate was ## M.A.C.A. No.534 of 2018 5 examined as PW2 in the lower court, but the actual deduction from the salary was not properly stated by PW2. No evidence has been adduced by the claimants to show that the deceased was a permanent employee and included in the Employees Insurance Scheme and other benefits. If that be the position, the salary shown in Exts.A9 and A10 are not fully acceptable for calculating compensation. Professional Tax, Income Tax and his personal expenses were not properly explained by the dependants. If that be the position, it is better to take just multiplicand for calculating dependancy compensation. 7. In view of the decision of the Apex Court in **Dixit Kumar and Ors.** v. **Om Prakash Goel (2017 ACJ 2057)** , the reduction of income by the tribunal in the absence of evidence is unsustainable. If that be the position, by avoiding tax imponderables and other personal deductions, it is better to take Rs.16,000/- as his monthly income, instead of Rs.22,200/- as stated by the claimants. According to the decision of the Apex Court in **Pranay Sethi (Supra)** , 40% (16,000x40%=6400) of the ## M.A.C.A. No.534 of 2018 6 income has to be added. Then the income comes to Rs.22,400/- (16,000+6400). The multiplier is 18. Accordingly, the total compensation is Rs.48,38,400/(22,400x12x18) for Loss of dependancy, since the deceased was a bachelor, half of the amount has to be deducted and the amount for loss of dependancy comes to Rs.24,19,200/- (48,38,400/2). From the above, 10% has to be deducted towards income tax i.e., Rs.2,41,920/- and the balance is Rs.21,77,280/- (24,19,200-2,41,920). The learned tribunal awarded an amount of Rs.15,30,900/- on that head. The balance is Rs.6,46,380/-. 6. Apex Court in **Pranay Sethi (Supra)** held that 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.15,000/- for Loss of Estate, Rs.25,000/for Funeral Expenses. Hence an amount of Rs.10,000/has to be deducted from Funeral Expenses. The balance is Rs.6,36,380/- (6,46,380-10,000). Accordingly, the M.A.C.A. No.534 of 2018 7 appellants are entitled to get an additional amount of Rs.6,36,380/- (Rupees Six Lakh Thirty Six Thousand Three Hundred and Eighty only) with 8% interest and proportionate cost in addition to Rs.16,86,900/- (Rupees Sixteen Lakh Eighty Six Thousand Nine Hundred only) awarded by the learned tribunal. The insurer is directed to satisfy the award within a period of two months from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. This appeal is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge