Prerna Rana and Minor Priyanka Rana v. The Managing Partner M/S Capithans Exporting Company, Ward No.1, Port Road, Sakthikulangara, Kollam; H. Stoy; The Oriental Insurance Company Ltd.; Vimala Rana

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ## **`MACA NO. 385 OF 2013`** ``` AGAINST AWARD DATED 08.07.2011 IN OP(MV) 241/2002 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1PRERNA RANA AGED 32 YEARS W/O.LATE PRAVEEN RANA, RESIDING AT 001, TULSI DARPAN, PLOT NO.158, SECTOR 28, VASHI NAVI, MUMBAI. ``` ``` 2MINOR PRIYANKA RANA AGED 11 YEARS D/O.LATE PRAVEEN RANA, REPRESENTED BY HIS NEXT FRIEND AND MOTHER PRERNA RANA, W/O.LATE PRAVEEN RANA, RESIDING AT 001, TULSI DARPAN, PLOT NO.158, SECTOR 28, VASHI NAVI, MUMBAI. ``` ``` BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 THE MANAGING PARTNER M/S.CAPITHANS EXPORTING COMPANY, WARD NO.1, PORT ROAD, SAKTHIKULANGARA, KOLLAM.` ``` 2H.STOY S/O.HARISON, KULAPURAYIDAM HOUSE, VADAKKUMBHAGOM, ERAVIPURAM.P.O., KOLLAM. ``` ``` 3THE ORIENTAL INSURANCE COMPANY LTD. BY ITS REGIONAL MANAGER, REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY STATION, COCHIN-18. ``` ``` 4VIMALA RANA W/O.B.S.RANA, 344, VIJAYA COLONY, HATHI, BARKALA, DEHRADUN, UTTARANCHAL STATE. 248 001. ``` ``` 2 ``` ## **`MACA NO. 385 OF 2013`** ``` BY ADVS. K.SIJU SRI.R.AJITH KUMAR (128/84) T.S.SREEKUTTY(K/556/2016) LATHA SUSAN CHERIAN ADV GEORGE CHERIAN (THIRUVALLA) (SR.)-R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 385 OF 2013 ``` ``` 3 ``` **==> picture [45 x 12] intentionally omitted <==** ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V) No. 241/2002 on the files of the Additional Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was submitted by them seeking compensation for the death of one Praveen Rana due to the injuries sustained in a motor accident that occurred on 26.10.2001. The 4[th ] respondent herein was impleaded as one of the respondents, being the mother of the deceased. The 1[st] appellant was the wife, and the 2[nd] appellant was the daughter of the deceased. 2. According to the appellants, the accident occurred when the motorcycle ridden by the deceased through the NH47, was hit by a lorry bearing registration No.KL-2 H 6814, driven by the 2[nd] respondent. The said vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. Immediately thereafter, he was taken to the District Hospital, Kollam, but he succumbed to the injuries on the way to the hospital. According to the appellants, the deceased was ``` MACA NO. 385 OF 2013 ``` ``` 4 ``` working as a Lieutenant in the Indian Navy with a monthly income of Rs.19,345/-. The claim petition was submitted in such circumstances seeking a total compensation of Rs.35,00,000/-. 3. The 3[rd] respondent Insurance Company alone contested the matter by filing a written statement. They admitted the coverage of the policy but disputed the liability on various grounds. The negligence, as well as the quantum of compensation, was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A9 from the side of the appellants. No evidence was adduced from the side of respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the lorry and therefore, the 3rd respondent, being the insurer of the said vehicle, was held liable to pay the compensation. The quantum of compensation was fixed as Rs.21,10,008/- and the 3rd respondent was directed to deposit the said amount along ``` MACA NO. 385 OF 2013 ``` ``` 5 ``` with interest @ 7.5% per annum from the date of petition till realisation. Upon such deposit, the said amount was directed to be apportioned among the appellants and the 4th respondent in the ratio 50:45:5. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 5. Heard Smt.Manju M. learned counsel appearing for the appellants and Sri.George Cherian (Thiruvalla), learned senior counsel appearing for the 3[rd] respondent Insurance Company. 6. The main dispute in this case is with respect to the quantum of compensation. The learned counsel for the appellants would contend that the amount awarded by the Tribunal under various heads, particularly under the head of loss of dependency, is grossly inadequate and, therefore, requires reconsideration. Learned counsel further points out that the Tribunal has made an addition of future prospects of 50% only, whereas in the light of the evidence adduced in this ``` MACA NO. 385 OF 2013 ``` ``` 6 ``` case, a 100% addition should have been taken. The learned counsel points out that the deceased was working as a Lieutenant in the Indian Navy, and as per the service conditions of the deceased, he was entitled to an annual increment of 3%. To substantiate the said contention, Ext.A6 salary certificate and Ext.A8 service details containing the terms and conditions of pay, were relied on. It was pointed out that, the computation of yearly increment and the monthly income as on the date of his retirement were also explicitly referred to in Annexure A8. 7. The learned counsel for the appellants, also placed the reliance upon the decision rendered by the honourable Supreme Court, in **Sureshchandra Bagmal Doshi and Another v. New India Assurance Company Limited and Others** [2018 AIR SC 2088], and a decision rendered by a Single Bench of this Court in **Simi, W/o. Biju P.varghese v. M/s Nair Brothers Carriers Pvt. Ltd.** [2022 (6) KHC 603==2022 (6) KLT OnLine 1058]. ``` MACA NO. 385 OF 2013 ``` ``` 7 ``` 8. The learned senior counsel appearing for the 3[rd] respondent stoutly opposes the said submission. It was pointed out that, as per the principles laid down by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and **Sarla Verma & Ors. v. Delhi Transport Corporation** [(2009) 6 SCC 121], as regards the addition to be made towards future prospects, standardized parameters have been set out, as per which, the addition to be made towards future prospects is 50%. Therefore, no deviation from the same is permissible in the light of the observations made by the Honourable Supreme Court in the said decision, which was rendered by a Constitution Bench. As regards the decision relied on by the learned counsel for the appellants, it was contended by the learned senior counsel that, in the light of the observations in **Pranay Sethi’s** case, the said decisions cannot be relied upon, as the same is per incuriam. ``` MACA NO. 385 OF 2013 ``` ``` 8 ``` 9. The learned senior counsel specifically brought the attention of this Court to the observations made by the Honourable Supreme Court in **Sarla Verma** ’s case in paragraphs 44 and 45. It was pointed out by the learned senior counsel that, in the said paragraphs, the impact of the future pay revisions in the matter of determining the addition to be made towards future prospects were also considered by the Honourable Supreme Court and despite the same, a fixed percentage of 50% was accepted as the addition to be made towards future prospects. Thus, it was contended by the learned senior counsel that the future additions in the salary owing to the service conditions were also taken into consideration by the honourable Supreme Court in Sarla Verma’s case, and therefore, the said question is no longer open for consideration. The relevant paragraphs referred to by the learned senior counsel read as follows: _“43. In this case as noticed above the salary of the deceased at the time of death was Rs.4,004/-. By_ ``` MACA NO. 385 OF 2013 ``` ``` 9 ``` _applying the principles enunciated by this Court to the evidence, the High Court concluded that the salary would have at least doubled (Rs.8008/-) by the time of his retirement and consequently, determined the monthly income as an average of Rs.4004/- and Rs.8008/- that is Rs.6006/- per month or Rs.72,072/- per annum. We find that the said conclusion is in conformity with the legal principle that about 50% can be added to the actual salary, by taking note of future prospects._ _44. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. He submitted that though the deceased was receiving Rs.4004/- per month at the time of death, as per the certificates issued by the employer (produced before High Court), on the basis of pay revisions and increases, his salary would have been Rs.32,678/- in the year 2005 and there is no reason why the said amount should not be considered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs.4004/- and Rs.8008/-, but the average of Rs.4004/-and Rs.32,678/-._ ``` MACA NO. 385 OF 2013 ``` ``` 10 ``` _45. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the nonexistence of such evidence at the time of accident.”_ 10. However, I am not inclined to accept the said contention. A careful reading of the observations referred to above would clearly indicate that the matters referred to therein were pertaining to the pay revisions, which came into effect years after the date of the accident. In paragraph 45, the Honourable Supreme Court specifically observed that, in that particular case, two pay revisions took place after the date of the accident, and the benefit of those pay revisions was sought when the matter ultimately came up before the Honourable Supreme Court. Therefore, it was observed that, ``` MACA NO. 385 OF 2013 ``` ``` 11 ``` had the claim petitions been finally decided at the stage of the Tribunal itself, it would not have been possible for the appellants to claim the benefit of the same. Thus, it is evident that this was one of the reasons that prompted the Honourable Supreme Court to discard those contentions. 11. Here, in the facts of this case, there is a clear distinction. As far as the pay revisions referred to in **Sarla Verma’s case (Supra)** are concerned, those were subject to certain contingencies. Of course, pay revisions are to take place at certain definite intervals. But, as the extent of enhancement in the salary depends upon the revision, which takes place periodically, the same cannot be ascertained as on the date of the accident. Thus, in short, the salary increase depends upon a contingency, namely, the revision of the pay scale consequent to the reports of the Commission appointed for the specific purpose in this regard. However, here, the specific case of the appellants is that the terms and ``` MACA NO. 385 OF 2013 ``` ``` 12 ``` conditions governing the service of the deceased contemplated an annual increment of 3%, which was certain. Irrespective of any contingency, the deceased was entitled to get such an increment automatically, provided he is in service. If the annual increment in the salary is certain, the same cannot be ignored while considering the question of additions to be made towards future prospects. When going through the computation of monthly income with the increment, as is discernible from Ext.A8, it can be seen that the actual increment during his entire service would be beyond 100%. 12. Thus, if the calculation of increments in the monthly income, as shown in Ext A8, is accepted, it would indicate the exact increase in the salary, the deceased would have received, had he been alive. In **Sureshchandra Bagmal Doshi’s** case, a Two Judges Bench of the Honourable Supreme Court considered the question as to whether the addition to be made towards future prospects in all cases should be confined to 50% as stipulated in **Pranay Sethi** ’s ``` MACA NO. 385 OF 2013 ``` ``` 13 ``` case. In the said decision, after referring to the observations made in **Pranay Sethi** ’s case, it was categorically held that there is no bar in taking future prospects at a higher level when the assessment is based on actual evidence, let in by the parties, to the satisfaction of the Court that the actual future prospects were higher than the standard percentage of increase contemplated in **Pranay Sethi’s** case. The relevant observations made by the honourable Supreme Court in the **Sureshchandra Bagmal Doshi’s** case (supra) are as follows: “11. We have the benefit of the Constitution Bench judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors., AIR 2017 SC 5157. While examining the observations in Sarla Verma (supra), the Constitution Bench gave its imprimatur to the addition of 50 per cent to actual salary of the deceased towards future prospects where the deceased had a permanent job and was below the age of 40 years, as in the present case. However, learned counsel for the appellant has brought to our notice a recent order passed by this Court in SLP (C) No.22134/2016 and other connected matters dated 22.11.2017 wherein while taking note of the views expressed by National Insurance Company Limited (supra), it has been observed that the percentage for calculating future rise in income is no bar to future prospects being taken at a higher level where the assessment is based on actual evidence led to the satisfaction of the Tribunal/the Court that the future ``` MACA NO. 385 OF 2013 ``` ``` 14 ``` prospects were higher than the standard percentage. Learned counsel, thus, submitted in the context of the evidence led in the present case that the two certificates dated 16.10.1998 and 8.7.2005 were proved in terms whereof the deceased's future prospects would have entitled her to a gross salary in the range of Rs.14,000 to Rs. 17,000 per month. No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led.” 13. It is also to be noted in this regard that, in the said decision, the Honourable Supreme Court took note of the observations made in S.L.P. No.22134/2016, wherein a similar view was taken. Moreover, in **Hem Raj v. Oriental Insurance Company Limited and Others [2018 ACJ 5]** , the said aspect was considered by the Honourable Supreme Court, and it was held that the view taken by this Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] is no bar to future prospects being taken at a ``` MACA NO. 385 OF 2013 ``` ``` 15 ``` level higher than 25% in case deceased was below 40 years if the evidence on record so warrants. The learned senior counsel vehemently contended that the observations made by the Honourable Supreme Court in the decisions referred to above were rendered by a Two Judges Bench, whereas **Pranay Sethi** ’s case was rendered by a Bench consisting of three Judges. Therefore, the observations made in **Pranay Sethi** ’s case have to prevail upon the other decisions. But, it is a well-settled position of law that when a subsequent decision of the Honourable Supreme Court explains or interprets the earlier Larger Bench decision, the High Court has to follow the said observations made in the subsequent decisions. This question was specifically considered while considering a similar issue by this Court in **Simi’s case** ( supra). In the said decision also, a learned Single Judge of this Court, after referring to **Hem Raj’s** and **Sureshchandra Bagmal Doshi’s** cases (supra), held that when there is specific evidence available on record, to substantiate the ``` MACA NO. 385 OF 2013 ``` ``` 16 ``` future prospects beyond 50% as contemplated under **Pranay Sethi** ’s case, nothing would preclude the Court from adopting the same. Thus, in the light of the aforesaid principles, I am of the view that, the observations made by the Honourable Supreme Court in **Pranay Sethi** ’s case are in the form of general principles where there is no or sufficient evidence available to establish the future prospects. In cases where the respective parties were able to demonstrate before the Tribunal or Court as to the increase in their salary, with convincing evidence, nothing would preclude the Tribunal/ Court concerned, from taking a different yardstick deviating from the standard addition as prescribed in **Pranay Sethi** ’s case. 14. Thus, when coming back to the facts of this case, the specific contention raised by the appellants is that, as per the terms and conditions of the service of the deceased, he was entitled to get a 3% increment per annum. The said ``` MACA NO. 385 OF 2013 ``` ``` 17 ``` submission was made placing reliance upon Ext.A8 details of the employment. The learned senior counsel, in this regard, opposes the said contention by pointing out that, as per Ext.A8, the annual increment @ 3% is contemplated only on the 3rd page of Ext.A8, which does not contain any endorsement as to its authenticity. On perusal of the Ext.A8, as produced before the Tribunal, it can be seen that the initial first page contains the seal and signature of the person who issued the same, but on the page where the yearly increment of 3% in the salary is mentioned, there is no such seal and signature. To be precise, the increment of 3% salary is contemplated on the 3rd and 4th pages of the said document, which do not contain any authentication as to its genuineness. No person was also examined to establish the terms and conditions governing the service of the deceased. Therefore, even though I am inclined to hold that the appellants would be entitled to get the compensation for loss of dependency determined based on the increments which ``` MACA NO. 385 OF 2013 ``` ``` 18 ``` the deceased was getting as part of his terms and conditions of employment, in the absence of any authentic document, the question of enhancement on the same cannot be decided in this appeal. Thus, for that limited purpose, the matter has to be remanded back to the Tribunal to enable the appellants to adduce evidence to substantiate the claim of increment and the enhancement in the salary in the form of annual increment of 3% or other hike in the salary. In such circumstances, this appeal is allowed, the award dated 08.07.2011 in O.P.(M.V.) No.241/2002 passed by the Additional Motor Accident Claims Tribunal, Ernakulam is hereby set aside, and the matter is remanded back to the Tribunal, only to consider the question of enhancement to be granted in the light of observations made by this Court in this judgment. To be precise, the question to be decided by the Tribunal after considering the matter afresh would be whether any enhancement in the compensation is to be awarded to the appellants. While considering the said issue, it shall be ``` MACA NO. 385 OF 2013 ``` ``` 19 ``` open for the parties to adduce such further evidence as they choose. The question of enhancement of compensation on the other heads raised by the appellants in this appeal also can be considered by the Tribunal while reassessing the compensation. Thus, the parties are directed to appear before the Tribunal on 11.12.2023. Considering the fact that this is a claim petition in the year 2002, every endeavour shall be taken by the Tribunal to dispose of the matter as expeditiously as possible, at any rate, within a period of six months from the date of appearance of all the parties. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` rpk/scs