Shahul Hameed and others v. P. Nagaraju Naidu and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** **MACA.No. 2793 of 2014** **--------------------------** **AGAINST THE AWARD IN OPMV 473/2006 of M.A.C.T.,KOLLAM DATED 30-11-2010 --------------------------------------------------------** ## **APPELLANT(S)/PETITIONERS:-** **--------------------------** **1 SHAHUL HAMEED, KUNNUMPURATHU VEEDU, (CHIRAYIL PADINJATTATHIL), NEERAVIL, PERINAD P.O., KOLLAM.** **2 REHIYANATH,** **OF DO...DO....** - **3 SHIJU OF DO....DO.....** **BY ADV.SRI.K.SUBASH CHANDRA BOSE** **RESPONDENT(S)/RESPONDENTS:-:** **-----------------------------** **1. P. NAGARAJU NAIDU, S/O.SUBHA NAIDU, 17-2-391/2 SAIDABAD, HYDERABAD, ANDHRAPRADESH - 500 059.** **2. SREE BALRAJ, S/O.SOMANATH, 10.4 565/1/9 VIJAYANAGAR COLONY, HYDERABAD, ANDHRAPRADESH - 500 059.** ## **3. THE DIVISIONAL MANAGER,** **IFFCO TOKIO GENERAL INSURANCE CO.LTD., 2ND FLOOR, UMA CHAMBERS, HYDRABAD, ANDHRAPRADESH - 500 059.** **R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **hmh** ## **P.D.RAJAN, J.** ...................................................... **M.A.C.A.Nos. 2793 & 2794 of 2014** ...................................................... **Dated this the 21[st] day of March, 2018** ## **JUDGMENT** These appeals are preferred against the award in OP(MV) Nos. 473/2006 and 472/2006 of the Motor Accident Claims Tribunal, Kollam by dependants of the deceased. On 26.12.2005 at 9 AM, the deceased Laiju and Shibu were riding a motor cycle bearing Reg.No.KL-09/M 8297 through Brownpally Secundrabad Railway Station road and when they reached in front of Centinary High School, a pick up van bearing Reg.No.AP II W 9130 driven in a rash and negligent manner, hit against the motor cycle, as a result the rider and pillion rider in the motor cycle sustained serious injuries and they succumbed to the injuries. In the circumstances, the legal representatives of the deceased Laiju preferred OP(MV) 472/2006 and the legal representatives of the deceased Shibu preferred OP(MV) No. 473/2006. The learned Tribunal awarded Rs. 6,54,500/- in OP (MV) No. 472/2006 and Rs. 6,46,200/- in OP(MV) No.473/2006. Being dissatisfied by M.A.C.A.Nos. 2793 & 2794 of 2014 : 2 : the award amounts, the dependants of the deceased preferred these appeals. 2. In the lower Court the driver and owner of the offending vehicle were set ex-parte. Insurer admitted the insurance of the vehicle and there is no dispute with regard to the accident. The claimants were examined as PW1 and PW2 and their documents were marked as A1 to A37. Respondents did not adduce any oral or documentary evidence. 3. The learned counsel appearing for the appellants contended that the deceased in OP(MV) No. 472/2006, Laiju was a Naik in Military Service, Medium Regiment, Seconderabad in AndhraPradesh, and was getting Rs.10,000/as his monthly income and the deceased in OP (MV) No. 473/2006, Shibu is a Gunner (GD) in Military Service, Medium Regiment, Seconderabad in AndhraPradesh and was getting Rs.10,000/- per month. But the lower Court took Rs.7,585/and Rs.6,273/- as the income of the pre-revised scale. The 6[th] pay commission was implemented from 1/1/2006 and they were the beneficiaries of the revised pay scale, which was not considered by the learned Tribunal. The future prospects of the M.A.C.A.Nos. 2793 & 2794 of 2014 : 3 : deceased has to be calculated while awarding just amount as compensation. 4. The learned counsel appearing for the insurer has no objection in awarding just compensation, in view of the settled principle laid down by the Apex Court. He has no objection in taking the salary drawn at the time of accident. ## Apex Court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 ]** 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, M.A.C.A.Nos. 2793 & 2794 of 2014 : 4 : 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 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 this case, the standardization, increase in the price hike and future prospects of the deceased and claimants have to be considered while fixing the dependency compensation. Apex Court in _**K.S.R.T.C. v. Susamma Thomas [ 1994 (1) KLT 67 (SC)]**_ , _**U.P. State Road Transport Corporation v. Trilok Chandra [ 1996 (2) KLT 218 (SC)**_ **and New India Assurance Co.Ltd v. Charlie [ 2005 (3) KLT 227 (SC)]** settled the principle of multiplier M.A.C.A.Nos. 2793 & 2794 of 2014 : 5 : method in awarding just amount as compensation. The multiplier was settled by the Apex Court in **Sarla Verma v.Delhi Transport Corporation [2012 (2) KLT 802 (SC)]** which was followed in **Pranay Sethi's case** (supra). 6. In OP (MV) No. 472/2006, the deceased was 27 years of age and multiplier is 17. The deceased in OP(MV) 473/2006 was 24 years of age and multiplier is 18. Ext.A3 is the extra ordinary gazette notification of Government of India, published on 30.08.2008, in which the Ministry of Defence in its resolution accepted the recommendation of 6[th] Central Pay Commission, with modification, they implemented the revised pay structure of pay bands and grade pay as well as pension with effect from 01.01.2006. The accident was on 26.12.2015. After 5 days of the accident, the revised 6[th] Central Pay Commission was implemented in the defence department. The increased salary includes annual increment and other benefits. In view of the pay scale, the revised salary was not considered by the learned Tribunal. In this situation considering Ext.A3 notification, the dependants M.A.C.A.Nos. 2793 & 2794 of 2014 : 6 : are entitled to get the increased benefits. According to the salary hike for awarding just compensation, a slight increase is necessary. 7. Therefore in view of **Pranay Sethi** 's case (supra) the salary is rounded as Rs.10,000/- for assessing compensation in OP (MV) 472/2006, along with that future prospects Rs.5,000/- has to be added, the multiplicand is Rs.15,000/-. In OP (MV) 473/2006 the deceased Shibu was getting Rs.6,503/- on the date of accident. Considering the pay commission recommendation, he is also entitled to get an increase in the salary and I take it as Rs.9,000/- as the monthly income for calculating just compensation along with that 50% has to be added. In view of **Pranai Sethi'** s case (supra) the income will be Rs.13,500/. 8. Accordingly following amount is awarded as compensation in OP (MV) 472/2006. The lower Tribunal awarded following amount as compensation: Rs. 25,000/for transport to the hospital, Rs. 5,000/- for pain and M.A.C.A.Nos. 2793 & 2794 of 2014 : 7 : sufferings, Rs. 6,14,466/- for loss of dependency and for love and affection Rs. 10,000/-. Considering future prospects and depreciation in money value the above amounts need modification. The monthly income taken in this case is Rs.15,000/- including 50% of future dependency. The dependency compensation is Rs.15,000 X 12 X 17 = Rs.30,60,000/-. The deceased was a bachelor 50% is to be deducted in view of **Sarla Verma's** case (supra). The balance is Rs.15,30,000/-. The Tribunal awarded Rs.6,54,466. he balance is Rs.15,30,000 - 6,54,466 = Rs.8,75,534/-. Along with that they are entitled to get additional Rs. 15,000/- for loss of estate. Therefore the total enhanced compensation is Rs. 8,90,534/-. 9. In OP(MV) 473/2006, the lower Tribunal awarded Rs. 10,000/- for transport to the hospital, Rs. 5,000/- for pain and sufferings, Rs. 6,21,126/- for loss of dependency and for love and affection Rs. 10,000/-. In this case also the dependents are entitled to get just amount as compensation. The monthly income taken in M.A.C.A.Nos. 2793 & 2794 of 2014 : 8 : this case is Rs.13,500/- including 50% of future dependency in view of **Pranay Sethi's** case (supra). Following amount is awarded for dependency Rs. 13500 X 12 X 18 = Rs. 2,916,000/-. The deceased was a bachelor, 50% is to be deducted in view of **Sarla Verma's** case (supra). The balance compensation amount is Rs.14,58,000/-. The Tribunal awarded Rs.6,46,126, which was rounded as Rs.6,46,200/-. The balance amount is Rs.14,58,000 - 6,46,200=Rs.8,11,800/-. In addition to that they are entitled to get additional Rs.10,000/- for funeral expenses and Rs. 15,000/- for loss of estate. The total compensation is Rs.8,36,800/-. 10. In M.A.C.A 2794/2014, insurer is directed to pay additional compensation of Rs. 8,90,534/- ( Rupees Eight lakh Ninety thousand Five hundred and thirty four only) with 7% interest and proportionate cost in addition to the award amount of Rs. 6,54,500/- . 12. In M.A.C.A. 2793/2014, insurer is directed to pay additional compensation of Rs.8,36,800/- (Rupees Eight lakh Thirty six thousand and Eight hundred only) M.A.C.A.Nos. 2793 & 2794 of 2014 : 9 : with 7% interest and proportionate cost, in addition to the award amount of Rs. 6,46,200/-. The additional compensation will be satisfied within two months from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. These appeals are disposed of as above. Sd/- **P.D.RAJAN, JUDGE** hmh // True copy // Sd/PA to Judge