National Insurance Company Ltd. v. Anitha K.K., Sandrya (Minor), Naseema, Abdul Sathar and Sanoob M.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** **MACA.NO. 228 OF 2014** **AGAINST THE AWARD IN O.P.(M.V.) NO.834/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 07-09-2013** ## **APPELLANT/RESPONDENT NO.4 :** **THE NATIONAL INSURANCE COMPANY LTD., MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, ERNAKULAM, REPRESENTED BY ITS MANAGER.** **BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH** **RESPONDENTS/PETITIONERS NO.1 TO 2** **AND RESPONDENTS NO.1 TO 3 :** - **1 ANITHA K.K., W/O.JAYAN E.V., PUTHIYATHINDIYIL HOUSE, KADAKKODAM EROOR WEST P.O., THRIPUNITHURA, ERNAKULAM.** **2 SANDRYA, (MINOR), AGED 13 YEARS, D/O.JAYAN E.V., PUTHIYATHINDIYIL HOUSE, KADAKKODAM EROOR WEST P.O., THRIPUNITHURA, ERNAKULAM, REPRESENTED BY HER MOTHER/1ST RESPONDENT.** - **3 NASEEMA, W/O.ALI, 9/833, MOOLEPADAM, KUSUMAGIRI P.O., THRIKKAKARA, KAKKANADU, ERNAKULAM.** - **4 ABDUL SATHAR, ULLABILLIMOOLA HOUSE, KAKKANADU, THRIKKAKARA, ERNAKULAM.** **MACA.Nos.228 & 1127 of 2014 2** **5 SANOOB M.A., S/O.ALI M.A., MOOLEPADAM, KUSUMAGIRI P.O., THRIKKAKARA, KAKKANAD.** **BY ADVS. SRI.K.A.ANAS SRI.D.CHANDRASENAN SRI.P.N.SUKUMARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH MACA.1127/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.228 & 1127 of 2014 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** ## **MACA.NO. 1127 OF 2014** **AGAINST THE AWARD IN O.P.(M.V.) NO.834/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 07-09-2013** ## **APPELLANTS/PETITIONERS :** - **1 ANITHA K.K., W/O.LATE JAYAN P.V., RESIDING AT PUYHIYATHUNDIYIL HOUSE, KADAKKODAM, EROOR WEST P.O., THRIPUNITHURA.** - **2 SANDRYA, D/O.LATE JAYAN P.V., RESIDING AT PUYHIYATHUNDIYIL HOUSE, KADAKKODAM, EROOR WEST P.O., THRIPUNITHURA.** **BY ADVS. SRI.P.N.SUKUMARAN SRI.K.A.ANAS SRI.P.S.APPU** ## **RESPONDENTS/RESPONDENTS :** - **1 NASEEMA, W/O.ALI, RESIDING AT HOUSE NO.9/833, MOOLEPADAM, KUSUMAGIRI P.O., THRIKKAKARA, KAKKANAD-682030.** - **2 ABDUL SATHAR, ULLABILLIMOOLA HOUSE, THRIKKAKARA, KAKKANAD, ERNAKULAM-682030.** - **3 SANOOB M.A., S/O.ALI M.A., MOOLEPADAM, KUSUMAGIRI P.O., THRIKKAKARA, KAKKANAD-682030.** **MACA.Nos.228 & 1127 of 2014 4** **4 THE NATIONAL INSURANCE CO.LTD., MYDHILY MANDIRAM, JANATA JUNCTION, PALARIVATTOM, ERNAKULAM-682025.** **BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH M.A.C.A. NO.228/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.228 & 1127 of 2014 5** ## **JUDGMENT** These appeals are preferred against the award in O.P. (M.V.) No.834 of 2011 of the Motor Accidents Claims Tribunal, Ernakulam. The legal representatives of the deceased Jayan preferred the above claim petition under Section 166 of the Motor Vehicles Act, 1988. The deceased Jayan sustained injuries in a motor accident, while undergoing treatment, he succumbed to the injuries. The Motor Accidents Claims Tribunal awarded compensation of Rs.6,65,064/- (Rupees Six Lakh Sixty Five Thousand and Sixty Four only) with 8% interest and proportionate cost. Being aggrieved by that, the legal representatives of the deceased preferred M.A.C.A No.1127 of 2014 and the insurer of the vehicle preferred M.A.C.A. No.228 of 2014. 2. It would be relevant and useful to refer the facts leading to the accident. Petitioners case in the lower court **MACA.Nos.228 & 1127 of 2014 6** was that on the date of accident the deceased was travelling in KL-7/AD-6752 through Kakkanad-Pallikkara public road. When he reached near Royal Club, Kakkanad, the vehicle hit against a tipper lorry, as a result the deceased sustained serious injuries, immediately he was removed to Sun Rise hospital, Kakkanad where he succumbed to the injuries. The driver and owner of the vehicle were ex parte. The insurer admitted the insurance of the vehicle, but contended that the deceased was travelling in an auto rickshaw after consuming liquor and they have no liability. The evidence consist of oral testimony of PW1 and documentary evidence of Exts.A1 to A9. Respondents evidence consist of oral testimony of RW1. Copy of the charge sheet was marked as Ext.X1. 3. Learned counsel appearing for the appellant in M.A.C.A. No.1127 of 2014 contended that future prospects was not considered by the learned Tribunal while awarding compensation. The deceased was a decoration worker and was getting an amount of Rs.10,000/- per month, but the learned Tribunal took only Rs.4,000/- as the monthly income **MACA.Nos.228 & 1127 of 2014 7** hence they are entitled to get enhanced compensation. 4. The appellant insurer in M.A.C.A. No.228 of 2014 contended that excess amount was awarded by the Tribunal towards Loss of Consortium and Funeral Expenses. Hence that amount has to be reduced. 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 **MACA.Nos.228 & 1127 of 2014 8** ## by the Tribunal. ## 6. Apex Court in **National Insurance Company** V. ## **Pranay Sethi [2017 (4) KLT 622 (SC)]** it was 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 **MACA.Nos.228 & 1127 of 2014 9** 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. 7. The deceased was a decoration worker. No evidence has been adduced by him in the lower court to prove his income. In the absence of such evidence, the learned Tribunal took Rs.4,000/- as his monthly income. Apex Court in **Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited [(2014) 2 Supreme Court Cases 735]** and in its earlier decision in **Ramachandrappa** v. **Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236]** discussed about proof of **MACA.Nos.228 & 1127 of 2014 10** income and its applicability in awarding just compensation. In view of the above law settled by the Apex Court, the monthly income is fixed as Rs.7,000/- for calculating dependency compensation. Along with that 40% is added towards future prospects and the income will be Rs.9,800/-. He was aged 34 and the multiplier is 16. Hence, the dependancy compensation is Rs.18,81,600/- (9800x12x16). There are two dependants, hence 1/3[rd] (Rs.6,27,200/-) has to be deducted and the balance is Rs.12,54,400/- (18,81,600-6,27,200). The learned Tribunal awarded Rs.5,12,064/- on that head and the balance is Rs.7,42,336/-. In view of **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 Rs.25,000/- towards Funeral expenses and Rs.1,00,000/- for Loss of consortium and no amount was awarded towards Loss of estate. Hence, an amount of Rs.10,000/- from Funeral expenses and Rs.60,000/from Loss of consortium have to be deducted and an amount **MACA.Nos.228 & 1127 of 2014 11** of Rs.15,000/- is added towards Loss of estate. Accordingly, the claimants are entitled to get an enhanced compensation of Rs.6,87,336/- (7,42,336-70000+15000) (Rupees Six Lakh Eighty Seven Thousand Three Hundred and Thirty Six only) with 9% interest and proportionate cost in addition to the award amount. 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. M.A.C.A Nos.228 and 1127 of 2014 are disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge