National Insurance Company Limited v. Sindu Gopan and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 25TH DAY OF MAY 2018 / 4TH JYAISHTA, 1940** **MACA.No. 331 of 2015** **AGAINST THE AWARD IN OP(MV) 653/2008 of MACT,PATHANAMTHITTA DATED 21-03-2014** ## **APPELLANT:3RD RESPONDENT** **NATIONAL INSURANCE COMPANY LIMITED THIRUVALLA NOW REPRESENTED 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. SINDU GOPAN,** **MANACKALKUDIYIL HOUSE, VADAYAMPADY P.O., IYKARA NADU, SOUTH VILLAGE, KUNNATHUNADU TALUK, PIN 689320** **2. VIDHYA SAGAR(MINOR)** **MANACKALKUDIYIL HOUSE, VADAYAMPADY P.O., IYKARA NADU, SOUTH VILLAGE, KUNNATHUNADU TALUK, PIN 689320** **3. VIVEK SAGAR (MINOR)** **MANACKALKUDIYIL HOUSE, VADAYAMPADY P.O., IYKARA NADU, SOUTH VILLAGE, KUNNATHUNADU TALUK, PIN 689320** **4. VASU M.E** **MANACKALKUDIYIL HOUSE, VADAYAMPADY P.O., IYKARA NADU, SOUTH VILLAGE, KUNNATHUNADU TALUK, PIN 689320** **5. LEELA VASU** **MANACKALKUDIYIL HOUSE, VADAYAMPADY P.O., IYKARA NADU, SOUTH VILLAGE, KUNNATHUNADU TALUK, PIN 689320** **R1 BY ADV. SRI.T.K..KOSHY (COVEATOR)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BNG** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.331 of 2015 & Cross Objection No.175 of 2015 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 25[th] day of May, 2018 ## **JUDGMENT** This appeal is preferred against the award in O.P.(MV)No.653/2008 of Motor Accidents Claims Tribunal, Pathanamthitta by the insurer. One Gopal M. Vasudevan died in a motor accident on 22.03.2008 and the learned Tribunal awarded Rs.12,65,000/- with 9% interest and proportionate cost as compensation. Being aggrieved by that, the insurer preferred this appeal. 2. Dependents claim in the lower court is that on 22.03.2008 at 4.15 pm, the deceased was riding KL05/B-7246 along Mallappally - Ranny public road, that time another vehicle KL-03-/J-1819 driven in a rash and negligent manner and hit against the motor cycle, as a result the deceased sustained serious injuries and died in a motor accident. The driver and owner of the vehicle were set ex-parte in the lower court. The insurer alone contested the matter, who admitted the insurance of the **M.A.C.A. No. 331 of 2015 & Cross Objection No.175 of 2015** **-2-** vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A9. Respondents did not adduce any evidence. 3. The learned counsel appearing for the insurer contended that excess amount was awarded for funeral expense, loss of consortium and loss of love and affection. The above amount was awarded by the Tribunal against the decision of the apex court in _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)].**_ 4. The dependents and legal heirs of the deceased filed a Cross Objection No.175/2015 and they contended that the deceased was working as a Food and Beverage Manager at Hotel Arcadia, Kottayam and was getting Rs.11,000/- per month. Ext.A8 salary certificate will prove this contention, which was not considered by the Motor Accidents Claims Tribunal, Pathanamthitta and took Rs.4,000/- as his monthly income. A meagre amount was awarded for loss of estate also. **M.A.C.A. No. 331 of 2015 & Cross Objection No.175 of 2015** **-3-** 5. The dependents and the legal heirs of the deceased are entitled to get just amount as compensation. 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 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 **M.A.C.A. No. 331 of 2015 & Cross Objection No.175 of 2015** **-4-** 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. 6. There is no dispute with regard to the accident. The dispute is with regard to the income of the deceased and the award amount of loss of consortium, funeral expense and love and affection. Ext.A8 was admitted by the respondents at the time of marking the documents, there was no dispute raised from the side of the appellant **M.A.C.A. No. 331 of 2015 & Cross Objection No.175 of 2015** **-5-** insurer. Without any objection from the side of the insurer, the learned Tribunal reduced the income from Rs.11,000/- to Rs.4,000/-. Therefore, an interference is necessary in the above finding of the Tribunal. In view of the _**Pranay Sethi**_ , the award of the Tribunal for funeral expense, loss of consortium has to be reduced. Apex court held that Rs.15,000/- for funeral expense, Rs.15,000/- for loss of estate and Rs.40,000/- for loss of consortium. Hence, Rs.10,000/- from funeral expense and Rs.60,000/- from loss of consortium have to be reduced. Rs.5,000/- has to be awarded towards the loss of estate. If that be considered, the total amount of Rs.65,000/- has to be deducted. 7. Apex court in _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ held that in the absence of specific evidence, the income stated by the claimant has to be considered for calculating dependency compensation. Here the employer was not examined. In the absence of such examination, I take Rs.8,000/- as his monthly income **M.A.C.A. No. 331 of 2015 & Cross Objection No.175 of 2015** **-6-** for calculating dependency compensation. Age of the deceased was 33 years and the multiplier is 16. In view of _**Pranay Sethi**_ , 40% has to be added along with the multiplicand. The total income will be Rs.11,200/-. The total dependency compensation is Rs.11,200x12x16= Rs.21,50,400/-. There are five dependents. Hence ¼ is to be deducted. The remaining dependency compensation is Rs.16,12,800/-. The learned Tribunal awarded Rs.8,64,000/-. The balance is Rs.7,48,800/-. From that amount, Rs.65,000/has to be deducted. The balance amount is Rs.6,83,800/-. The learned counsel appearing for the appellant contended that the amount awarded by the Tribunal towards the loss of love and affection is excess amount ie.Rs.2,50,000/-. That amount has to be deducted. The learned counsel appearing for the dependents submitted that the learned Tribunal awarded the above amount considering the age of the two minor children, no directions were issued by the apex court in _**Pranay Sethi's**_ case for deducting that amount. If that be **M.A.C.A. No. 331 of 2015 & Cross Objection No.175 of 2015** **-7-** the position, no interference is necessary with the award of the Tribunal towards the love and affection. 8. Hence this appeal is partially allowed and the cross appeal is also partially allowed. The Cross Objectioner is entitled to get additional compensation of Rs.6,83,800/(Rupees Six Lakh Eighty Three Thousand Eight Hundred only) with 7% interest from the date of petition till realisation with proportionate cost in addition to the award amount. The insurer is directed to satisfy the award 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 and cross objection are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng