SBI General Insurance Company Limited v. Mini Johny and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939** **AGAINST THE AWARD IN OP(MV) NO.166/2014 OF MACT PALA DATED 27-04-2015** ## **APPELLANT/3RD RESPONDENT** **SBI GENERAL INSURANCE COMPANY LIMITED REPRESENTED BY THE MANAGER, 301, NATRAJ, ANDHERI EAST, MUMBAI 400 069, JUNCTION OF WESTERN EXPRESS HIGHWAY & ANDHERI- KURLA ROAD.** **BY ADVS.SRI.C.J.SHAJI SMT.K.R.MONISHA SMT.CHITHRA CHANDRASEKHARAN** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 2:** ## **1. MINI JOHNY** **W/O.JOHNY GEORGE, VARICKAMANTHOTTIYIL HOUSE, KALLARA P.O., PIN: 686 611.** ## ***2. JERIN JOHN** **S/O.JOHNY GEORGE, VARICKAMANTHOTTIYIL HOUSE, KALLARA P.O., PIN: 686 611.(RECORDED)** ## **3. MERIN JOHNY D/O.JOHNY GEORGE,** **VARICKAMANTHOTTIYIL HOUSE, KALLARA P.O., PIN: 686 611. (2 AND 3 ARE REPRESENTED BY GUARDIAN AND NEXT FRIEND MINI JOHNY W/O.JOHNY GEORGE VARICKAMANTHOTTIYIL)** ## **4. GEORGE S/O.CHANDY** **VARICKAMANTHOTTIYIL HOUSE, KALLARA P.O., PIN: 686 611.** ## **5. LEELAMMA** **W/O.CHANDY, VARICKAMANTHOTTIYIL HOUSE, KALLARA P.O., PIN: 686 611.** **6. SAJEER, S/O.ALIYARUKUNJU PUTHENVELY, MUHAMMA, NOW RESIDING AT CCM APARTMENTS, ERATTUPETTA, PIN: 686 122.** ## **7. NOUFEL E.H.** **S/O.HAMEEDKUTTY ASAN, IIANJIKKATHARA HOUSE, PONNAD P.O., MANNAMCHERRY, ALAPPUZHA DISTRICT, PIN: 688 538.** **R1-R4 BY ADV. SRI.MANUEL KACHIRAMATTAM R1-R4 BY ADV. SMT.MERRY GEORGE** **(* IT IS RECORDED THAT 2ND RESPONDENT ATTAINED MAJORITY AND IS PERMITTED TO REPRESENTED BY HIMSELF IN FURTHER PROCEEDINGS AS PER ORDER DATED 03.2.2017 IN IA NO.4036/16 IN MACA NO.2319/15)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BNG** ## **P.D.RAJAN, J.** **- - - - - - - - - - - - - - - - - - -** M.A.C.A. Nos.2319 & 2440 of 2015 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 16[th] day of January, 2018 ## **JUDGMENT** These appeals are preferred against the award in O.P(MV) No.166/2014 of the Motor Accidents Claims Tribunal, Pala. M.A.C.A No.2319 of 2015 was preferred by the insurer and M.A.C.A No.2440 of 2015 was preferred by the dependents of the deceased Johny George, who met with an accident on 12.02.2014 at 10.45 am and the learned Tribunal awarded Rs.21,80,600/- as compensation with interest and cost. Being aggrieved by that, the insurer and dependents preferred the above appeals. 2. O.P.(MV) No.166/2014 was preferred by the wife, children and parents of the deceased Johny George. Their case is that, on 12.02.2014 at about 10.45 am, the deceased was driving KL-36/D-5104 to the workshop, at that time a tipper lorry bearing registration No.KL-04/Y7557 driven in a rash and negligent manner from the opposite side, hit against the autorikshaw. As a result, ## **M.A.C.A. Nos.2319 & 2440 of 2015** **-2-** Johny George sustained serious injuries and while undergoing treatment he succumbed to the injuries. The driver and the owner of the offending vehicle were set exparte. The insurer admitted the insurance of the vehicle. The Claimants were examined as PW1 and 2 and adduced documentary evidence of Exts. A1 to A12. Respondents marked Ext.B1 as their documentary evidence. 3. The appellant in M.A.C.A No.2319 of 2015 contended that the deceased was a rubber tapper as per the claim petition. He was earning Rs.12,000/- per month from rubber tapping. In the petition, it is mentioned that, he was also driving autorikshaw and earned another Rs.12,000/- per month. Even though, the above contentions were raised by the dependents, no documentary evidence have been produced before the Tribunal to prove the income. As per Ext.A12, he was getting only Rs.60,000/- during the year 2013-14. During the year 2012-13, he was getting Rs.53,000/- and in the year 2011-12, he was getting ## **M.A.C.A. Nos.2319 & 2440 of 2015** **-3-** Rs.54,200/-. If the above income is considered, the appellant is getting only below Rs.60,000/-. Therefore, the income taken by the Tribunal Rs.12,000/- is to be reduced to Rs.10,000/-. The learned Tribunal awarded excess amount for funeral expense, loss of estate and loss of consortium, in view of the decision of the apex court in _**National Insurance Company Limited v. Pranay Sethi [2017(4) KLT 662 (SC)]**_ appellant is entitled to get an amount of Rs.70,000/- alone. 4. The appellant in M.A.C.A No.2440/2015, who are the dependents of the deceased contended that, in addition to the tapping work, the deceased was earning money by driving his autorikshaw bearing registration No.KL36/D-5104. The accident occurred while he was driving the above said vehicle. The learned Tribunal considered the documentary evidence in Exts.A11 and A12, finally fixed the income as Rs.12,000/-. The dependent's claim was that the deceased was earning Rs.24,000/- per month. The reduction ## **M.A.C.A. Nos.2319 & 2440 of 2015** ## **-4-** of that amount in the absence of any contra evidence is against the decision of the apex court in _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ and _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735).**_ 5. There is no dispute with regard to the accident. The apex court in _**Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104)**_ case held that the dependents are entitled to get just amount as compensation. It is true that the deceased was driving the autorikshaw on the date of accident, he might have earned more income than from rubber tapping by driving the autorikshaw. Now a days, rubber tapping is totally stagnated and the price of the rubber is reduced from 2014 onwards and most of the rubber planters are not tapping the rubber due to reduction in the price of the rubber. There is every possibility for reduction of income from rubber tapping. Therefore, the deceased might have engaged full time in ## **M.A.C.A. Nos.2319 & 2440 of 2015** **-5-** driving his autorikshaw. The wages of the manual labourers are fixed as Rs.490/- per day by the Government of Kerala. The manual labour now a days are very high and he could have earned more from rubber tapping. If that criteria is adopted for a driver of the autorikshaw, he will earn minimum Rs.12,000/- as suggested by the Tribunal. The apex court in _**Syed**_ case (Supra) specifically held that in the absence of contra evidence with regard to income, the Tribunals have no right to reduce the income stated by the claimants in a petition for compensation. If that principle is adopted, there is no illegality in admitting Rs.12,000/- as the monthly income. In view of the _**Sarla Verma**_ case (supra) the correct multiplier 14 was taken. There are four dependents, ¼ was deducted. The insurer has no dispute with regard to these aspects. The learned counsel appearing for the insurer submitted that 30% was added in stead of 25% as directed in _**Pranay Sethi**_ case. ## **M.A.C.A. Nos.2319 & 2440 of 2015** **-6-** 6. The 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_ ## **M.A.C.A. Nos.2319 & 2440 of 2015** **-7-** _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 funeral_ ## **M.A.C.A. Nos.2319 & 2440 of 2015** **-8-** _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._ In view of the _**Pranay Sethi's**_ case (supra), the loss of dependency is as follows: Rs.12,000x25/100 = Rs.3,000/-. Therefore adding 25% along with income, the total loss is Rs.15,000/- (Rs.12,000+3,000). Therefore total loss of dependency is Rs.18,90,000/- (15,000x12x14x3/4). Hence, in addition to that, loss of consortium Rs.40,000/-, funeral expense Rs.15,000/- and loss of estate Rs.15,000/- are also added. The total amount is Rs.19,60,000/(Rs.18,90,000+40,000+15,000+15,000) along with that, the learned Tribunal awarded for transport to hospital Rs.10,000/-, pain and suffering Rs.25,000/- and love and affection Rs.50,000/-. Therefore total amount is Rs.20,45,000/(Rs.19,60,00+10,000+25,000+50,000). Therefore, the appellants are entitled to get total amount of Rs.20,45,000/- as compensation. In the circumstances, the ## **M.A.C.A. Nos.2319 & 2440 of 2015** **-9-** award amount of Rs.21,18,600/- is set aside and modified as compensation of Rs.20,45,000/- with 9% interest and proportionate cost. In view of the above discussion, both appeals, M.A.C.A Nos. 2319 and 2440/15 are disposed of, as above. Sd/- **P.D.RAJAN** **JUDGE** bng //True Copy// P.A to Judge