Sobha and Others v. P. Muhammed, Antony and National Insurance Company Limited, MACA No. 2518 of 2010

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939** **MACA.NO. 2518 OF 2010** **AGAINST THE AWARD IN O.P.(M.V.) NO.167/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA DATED 29-07-2010 --------------------------** ## **APPELLANTS/(PETITIONERS):** **------------------------** **1 SOBHA, W/O LATE VIJAYAKUMAR, VALIYANGATEE VEEDU, CHEENAPPULLE P.O., NARIKUNDE, THOMATTUCHAL VILLAGE, BATHERY TALUK, WAYANAD DISTRICT.** **2 VIPIN, S/O.LATE VIJAYAKUMAR, VILIYANGATTE VEEDU, CHEENAPPULLE P.O., NARIKUNDE,THOMATTUCHAL VILLAGE,, BATHERY TALUK, WAYAND DIST.(REPRESENTED BY POWER OF ATTORNEY HOLDER SOBHA, W/O.LATE VIJAYAKUMAR, VALIYANGATTE VEEDU, CHEENAPPULLE P.O., NARIKUNDE, THOMATTUCHAL VILLAGE, BATHERY TALUK, WAYANAD DISTRICT).** **3 ANOOP,S/O.LATE VIJAYAKUMAR,VALIYANGATTE VEEDU, CHEENAPPULLE P.O., NARIKUNDE, THOMATTUCHAL VILLAGE, BATHERY TALUK, WAYAND DISTRICT, (REPRESENTED BY POWER OF ATTORNEY HOLDER SOBHA, W/O.LATE VIJAYAKUMAR, VALIYANGATTE VEEDU, CHEENAPPULLE P.O., NARIKUND, THOMATTUCHAL VILLAGE, BATHERY TALUK, WAYANAD DISTRICT).** **4 VISHNU, AGED 17 YEARS,S/O.LATE VIJAYAKUMAR VALIYANGATTE VEEDU, CHEENAPPULLE P.O., NARIKUNDE, THOMATTUCHAL VILLAGE, BATHERY TALUK, WAYANAD DISTRICT, (MINOR, REPRESENTED BY MOTHER AND NATURAL GUARDIAN SOBHA THE 1[ST] APPELLANT)** **BY ADV.SRI.P.RAMAKRISHNAN** ## **RESPONDENTS (RESPONDENTS):** ## **-------------------------** **1. P.MUHAMMED, S/O MOIDEEN KOYA, POOLAKKAPARAMBIL HOUSE, NARIKUNDU P.O., AMBALAWAYAL, THAMATTUCHAL VILLAGEM, BATHERY TALUK, WAYANAD DISTRICT (DRIVER OF JEEP KL-12/A 540-DL, NO.1552/88/W)** **2. ANTONY, S/O.MANI, CHEENADUL HOUSE, NARIKUNDU P.O., AMBALAWAYAL, THAMATTUCHAL VILLAGEM, BATHERY TALUK, WAYANAD DISTRICT, (OWNER OF JEEP KL-12/A 540)** **MACA.NO. 2518 OF 2010 -2-** **3. NATIONAL INSURANCE COMPANY LIMITED, MAIN ROAD, P.O.KALPETTA (INSURER OF JEEP, KL-12/A540) R1 & R2 BY ADV. SRI.C.A.CHACKO R3 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.2518 of 2010 --------------------------------Dated this the 15[th] day of March, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.167 of 2007 of the Motor Accidents claims Tribunal, Kalpetta. One Vijayakumar sustained injuries in a motor accident on 08.10.2006 while undergoing treatment he succumbed to the injuries and the learned Tribunal awarded an amount of Rs.3,35,500/- (Rupees Three Lakh Thirty Five Thousand Five Hundred only) with interest and cost as compensation. Being dissatisfied with the award amount, the dependants of the deceased preferred this appeal. 2. There is no dispute with regard to the accident. The insurer admitted the insurance of the vehicle KL-12/A-540, in which the deceased was travelling. The driver and owner of the vehicle were set exparte in the lower court. Appellants examined PW1 and Exts.A1 to A8 were marked from their side. 3. Learned counsel appearing for the appellants ## M.A.C.A. No.2518 of 2010 2 contended that the deceased was an agriculturalist and was getting an amount of Rs.6,000/- per month, but the learned tribunal considered Rs.2,500/- as his monthly income hence he is entitled to get just amount as compensation in view of the decision of the Apex Court in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2)KLT 802(SC).** 4. It is true that the deceased was an agriculturist but no documents were produced in the lower court to prove his income. Apex Court in **Dixit Kumar and Ors.** v. **Om Prakash Goel (2017 ACJ 2057)** held that the reduction of income by the tribunal in the absence of evidence is unsustainable. Hence, in the absence of any contra evidence or any dispute by the insurer or other respondents, the tribunal has no right to reduce the income. In view of the above decision, the income stated by the claimants has to be considered and Rs.6,000/- is taken as his monthly income. Now a days, an agriculturist is entitled to get just amount as M.A.C.A. No.2518 of 2010 3 compensation. The principle of multiplier method was adopted in **General Manager, Kerala State Road Transport Corporation** v. **Susamma Thomas [1994 (1) KLT 67 (SC)** and in **New India Assurance Co. Ltd.** v. **Charlie 2005 (3) KLT 227 (SC).** It was subsequently considered in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2) KLT 802 (SC)** . 5. In this context, I may refer the decision of the Apex Court in **National Insurance Company** V. **Pranay Sethi** [ **2017 (4) KLT 622 (SC)],** certain modification was made for calculating compensation, in which the Apex Court 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 ## M.A.C.A. No.2518 of 2010 4 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 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/- M.A.C.A. No.2518 of 2010 5 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 6. However, in view of the decision in **National Insurance Company** V. **Pranay Sethi** [ **2017 (4) KLT 622 (SC) ]** it is pertinent to note that if the deceased was between the age of 40 to 50 years, additional 25% (6000x25%) has to be added along with the income. Hence, the income comes to Rs.7,500/- (6000+1500). There are four dependants, hence ¼[th] has to be deducted. The total dependency comes to Rs.9,45,000/(7500x12x14x3/4). The learned tribunal awarded an amount of Rs.3,00,000/- for Loss of dependency. The balance is Rs.6,45,000/-. As per the decision of the Apex Court in **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 an amount of Rs.10,000/- for Loss of Consortium and Rs.5,000/- for Funeral Expenses and no amount was awarded for Loss of Estate. Hence, an M.A.C.A. No.2518 of 2010 6 additional amount of Rs.55,000/- is awarded for Loss of Estate, Loss of Consortium and Funeral Expenses. Accordingly, the appellants are entitled to get Rs.7,00,000/(Rupees Seven Lakhs only) (6,45,000+55,000) with 7.5% interest and proportionate cost in addition to Rs.3,35,500/- (Rupees Three Lakh Thirty Five Thousand Five Hundred only) awarded by the learned tribunal. The insurer is directed to satisfy the award within 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. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy / P.A. To Judge NS