National Insurance Co Ltd v. Chandravathy Kizhakkemattom House; Sanish K.S.; Shyamma Sasi (now major)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **M.A.C.A.No. 2289 of 2013** **AGAINST THE AWARD IN OPMV 360/2011 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM DATED 31-08-2013** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **NATIONAL INSURANCE CO LTD, KOTTAYAM, REPRESENTED BY ITS MANAGER, NATIONAL INSURANCE CO.LTD., KOCHI REGIONAL OFFICE, OMANA BUILDINGS, PADMA JUNCTION, KOCHI - 35.** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS IN THE OP:** **1 CHANDRAVATHY KIZHAKKEMATTOM HOUSE, MAMMOODU PO., MADAPPALLY - 689 513.** **2 SANISH K.S. -DO- -DO- 689 513.** **3 SHYAMMA SASI (NOW MAJOR) -DO- -DO- 689 513.** **BY ADVS. SRI.ANTONY PANATHOTTAM SMT.S.SREEDEVI(ALP) SRI.T.B.GAFOOR SRI.T.K.RADHAKRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2289 of 2013** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No.360 of 2011 of Motor Accidents Claims Tribunal, Kottayam by the insurer. One Sasi sustained injuries in a motor accident, he died on the way to the hospital and the Motor Accidents Claims Tribunal awarded compensation of Rs.9,25,500/- with 8.5% interest and proportionate cost. Being aggrieved by that, the insurer preferred this appeal. 2. It would be relevant to refer the facts leading to this accident. On 14-04-2010 at 11.30 pm the deceased was riding a scooter through the Changanassery-Vazhoor public road, when he reached at the place of occurrence, another jeep KL-05/AA-6062 driven in a rash and negligent manner hit against the scooter. As a result, the rider of the scooter sustained serious injuries. On the way to the hospital, he succumbed to the injuries. The accident was due to the rash and negligent driving of the jeep by its driver. The driver and owner were set ex-parte. The insurer admitted the insurance of the vehicle. **M.A.C.A.No. 2289 of 2013** **3** Petitioner’s evidence consist of oral testimony of PW1 and documentary evidence of Ext.A1 to A14. Respondents did not adduce any evidence. 3. The first claimant is the wife of the deceased, second and third petitioners are their children. After the death the entire family was thrown to agony and misery. The deceased was a building contractor and was getting Rs.13,000/- per month. The claimants are the dependents of the deceased. 4. In the lower court the insurer contended that the accident was due to the rash and negligent driving of the deceased, who turned the vehicle to right without any signal and without caring the other vehicle passing through the road. Even though they raised such a contention, no evidence has been adduced in the lower court to prove the rash and negligent driving of the injured. The driver and owner were set ex-parte and they have no dispute with regard to the rash and negligent driving. In this appeal also the insurer did not raise any contention with regard to the negligence. The dispute is with regard to the amount awarded towards dependency **M.A.C.A.No. 2289 of 2013** **4** compensation and other heads. In death cases the measure of compensation is towards the pecuniary losses to the dependents as a result of the death of the sole bread winner. 5. 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 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. 6. Apex court in _**National Insurance Company**_ **M.A.C.A.No. 2289 of 2013** **5** ## _**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 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_ **M.A.C.A.No. 2289 of 2013** **6** _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._ 7. The claimants in the lower court contended that the deceased was getting Rs 13,000/-, but no evidence has been produced in the lower court to prove the income. The learned Tribunal took Rs 7,500/- as the monthly income. As the age of the deceased was 52 years at the time of the accident, 10% has to be added towards future prospects. Therefore monthly income is (7,500+750) Rs.8,250/-.The claimants have no dispute with regard to the above amount. There is no provision for any increase in the income on monthly basis like **M.A.C.A.No. 2289 of 2013** **7** government employees. As a self employed man, there is no other provision for any further increment or other benefits. But as regards cost of living and standard of living are considered the contractor or an ordinary workman is entitled to get revised wages periodically according to the increase in the price index. The claimants did not dispute the income and the amount of compensation awarded by the tribunal. The learned Tribunal awarded following amount as compensation. |Sl.<br>No.|Head of Claim|Amount<br>Awarded (Rs)| |---|---|---| |1.|Transport to Hospital|1,000| |2.|Damage to clothing|500| |3.|Funeral expenses|25,000| |4.|Loss of dependency|7,59,000| |5.|Loss of estate|10,000| |6.|Loss of love and affection|30,000| |7.|Loss of consortium|1,00,000| |8.|Pain and suffering|Nil| ||TOTAL|9,25,500| **M.A.C.A.No. 2289 of 2013** **8** 8. The deceased was working as a contractor he might have earned good income. The learned counsel appearing for the appellant insurer contended that he was a mason by profession. There is no evidence to prove the contention that he was working as contractor. The contract license and other relevant documents were not produced in the lower court. In view of decision of _**Pranay Sethi**_ and other circumstance in this case, I am of the view that exorbitant amount was not awarded by the Tribunal. The total dependency compensation is Rs.8,250X12X11=Rs.10,89,000. One third amount has to be deducted and the balance amount is Rs.7,26,000/-. Learned Tribunal awarded Rs.7,59,000/-. Hence Rs.33,000/- has to be deducted. The claimants are entitled to get Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/towards loss of consortium. Therefore Rs.10,000/- from funeral expenses has to be deducted. In view of _**Magma General Insurance Co. Ltd. v. Nanuram alias Chuhru Ram and others [ 2018 ACJ 2782],**_ consortium is Rs.40,000/- each for claimants. The learned Tribunal **M.A.C.A.No. 2289 of 2013** **9** awarded Rs.1,00,000/-. Therefore they are entitled to get additional Rs.20,000/-. Towards love and affection they are entitled to get Rs. 1,50,000/-, but Rs.30,000/- alone was awarded. No amount was awarded towards pain and suffering. The claimants are entitled to get higher amount as compensation than awarded but no appeal has been preferred by the legal representatives for enhancement, therefore I cannot award an enhanced amount. The totality of the circumstance shows that this appeal lacks merit. In the circumstance, this appeal is dismissed accordingly. Sd/- **P.D.RAJAN, JUDGE** nak