National Insurance Company Limited v. Muhammed C.K. and Ayisha M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940** **M.A.C.A.No. 3404 of 2015** **AGAINST THE AWARD IN OPMV 828/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 22-08-2015** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED, MANJERI NOW REP.BY ITS ASST.MANAGER , KOCHI REGIONAL OFFICE, OMANA BUILDING, M G ROAD, KOCHI - 35** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 MUHAMMED C.K S/O.LATE ALAVIKUTTY, CHALIL KIZHAKKETHALAPPIL HOUSE, IRUMBUZHI P O, MANJERI ,MALAPPURAM DISTRICT -676 320.** - **2 AYISHA.M** **W/O.C K MUHAMMED, CHALIL KIZHAKKETHALAPPIL HOUSE, IRUMBUZHI P O, MANJERI ,MALAPPURAM DISTRICT 676 320.** **BY ADVS. SRI.M.R.ARUNKUMAR SRI.P.SHAMMI NAVAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 3404 of 2015** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P (MV)No.828/2010 of Motor Accidents Claims Tribunal, Manjeri by the insurer. On 21-05-2009 at 9.15 hours, the deceased was riding his electric scooter from Irumbuzhi to Malappuram. At that time another vehicle KL/10/J/757 driven in a rash and negligent manner hit against the scooter. As a result, he sustained serious injuries. While undergoing treatment Aneesh Babu succumbed to the injuries on the same date. The accident was due to the rash and negligent driving of the vehicle by its driver. The learned Tribunal awarded Rs.39,61,500/- (Rupees Thirty Nine Lakhs Sixty One Thousand Five Hundred Only) with 9% interest and costs. Being aggrieved by that, insurer preferred this appeal. 2. In the lower Court, respondents 1 & 2 did not contest the matter. The accident was not disputed by them even though they filed a written statement. Insurer admitted the insurance of the vehicle. Claimants who are the legal representatives of the deceased, did not adduce **M.A.C.A.No. 3404 of 2015** **3** any oral evidence. But their documents were marked as Exts. A1 to A12. Respondents did not adduce any evidence. 3. The learned counsel appearing for the appellant contended that, the deceased was working abroad as a Computer Engineer and getting monthly income of Rs. 50,000/-, but no evidence had been produced in the lower court to prove that contention. The learned Tribunal without any evidence took Rs. 25,000/- as the monthly income and 50% of salary was taken to his future prospects. Hence the amount awarded towards future prospects has to be reduced and also the income fixed by the Tribunal is to be reduced. The amount awarded towards funeral expenses is to be reduced to Rs.15,000/-, instead of Rs. 25,000/-. 4. The learned Counsel appearing for the respondent, claimants contended that the deceased passed B.A. degree and working at Saudi Arabia and was getting Rs. 50,000/-. He was also holding a certificate from Government of Kerala for Science and Technology **M.A.C.A.No. 3404 of 2015** **4** Entrepreneurship Development Project, which is a job oriented training programme in computer hardware maintenance and networking. No illegality in taking the income as Rs.25,000/-, while he was working abroad as a Computer Engineer on the basis of the above certificate, he might have earned more than 25,000/-. Hence the income shall be fixed at Rs. 50,000/-. ## Apex court in _**National Insurance Company 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_ **M.A.C.A.No. 3404 of 2015** **5** _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 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_ **M.A.C.A.No. 3404 of 2015** **6** _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._ 5. 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. **M.A.C.A.No. 3404 of 2015** **7** 6. The deceased was aged 27 years at the time of death. In view of _**Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104)**_ the multiplier is 17, which was rightly taken by the Tribunal. In _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ the compensation towards future prospects is fixed as 40% where the deceased was getting fixed income or fixed salary. Therefore 40% alone can be added towards future prospects. The appellants did not adduce any evidence in the lower court to disprove the evidence taken by the Tribunal. In the absence of any evidence the income taken by the Tribunal Rs. 25,000/- is upheld. The deceased was a bachelor and half of the amount is to be deducted. If 40% is added, ie. Rs. 10,000/- the total income for calculating dependency compensation is Rs.35000x12x17x1/2=Rs.35,70,000/-. The learned Tribunal awarded Rs.38,25,000/-. Hence Rs.2,55,000/- has to be deducted from the total compensation. 7. The Tribunal awarded Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. **M.A.C.A.No. 3404 of 2015** **8** In view of Pranay Sethi, the claimants are entitled to get Rs.15,000/- each towards funeral expenses and loss of estate. Therefore, from that amount, Rs.5,000/- has to be deducted. Considering the facts and circumstances of the case, a sum of Rs. 2,60,000/- has to be deducted from the total award amount. The dependents are entitled to get the balance amount of Rs. 37,01,500/-. Hence the insurer is directed to pay modified compensation of Rs. 37,01,500/- (Rupees Thirty Seven Lakhs Thousand Five Hundred only) with 9% interest and proportionate cost within 30 days 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/- nak