Sony Thomas and others v. Divisional Manager, National Insurance Co. Ltd. (MACA No. 3382 of 2017) and National Insurance Co. Ltd. (MACA No. 566 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** **MACA.No. 3382 of 2017** **AGAINST THE AWARD IN OPMV 1544/2015 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM DATED 22-06-2017** ## **APPELLANTS/PETITIONERS:** - **1 SONY THOMAS AGED 54 YEARS, KALLUKULAM HOUSE, RUBY NAGAR P.O, CHENGANACHERRY, KOTTAYAM** - **2 JESSAMMA GEORGE AGED 49 YEARS, RESIDING AT KALLUKULAM HOUSE, RUBY NAGAR P.O, CHENGANACHERRY, KOTTAYAM** - **3 JOFFIN SONY AGED 20 YEARS, KALLUKULAM HOUSE, RUBY NAGAR P.O, CHENGANACHERRY, KOTTAYAM** - **4 JEANNA MARY SONY (MINOR) AGED 6 YERS, REPRESENTED BY HER MOTHER AND NEXT FRIEND,JESSAMMA GEORGE, AGED 49 YEARS, RESIDING AT KALLUKULAM HOUSE, RUBY NAGAR P.O, CHENGANACHERRY, KOTTAYAM** **BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL** ## **RESPONDENT/3RD RESPONDENT:** **DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD. KOTTAYAM-686 001.** **BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2019, ALONG WITH MACA.566/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos. 3382 of 2017 & 566 of 2018 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** **MACA.No. 566 of 2018** **AGAINST THE AWARD IN OPMV 1544/2015 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM DATED 22-06-2017** ## **APPELLANT/3RD RESPONDENT IN O.P(MV) NO.1544 OF 2015:** **NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENTS/PETITIONERS IN O.P(MV) NO.1544 OF 2015:** - **1 SONY THOMAS AGED 56 YEARS, KALLUKULAM HOUSE, RUBY NAGAR (PO), CHANGANASSERY, KOTTAYAM - 686 103.** - **2 JESSAMMA GEORGE AGED 51 YEARS, W/O.SONY THOMAS, KALLUKULAM HOUSE, RUBY NAGAR (PO), CHANGANACHERRY, KOTTAYAM - 686 103.** - **3 JOFFIN SONY AGED 22 YEARS, S/O. SONY THOMAS, KALLUKULAM HOUSE, RUBY NAGAR (PO) CHANGANACHERRY, KOTTAYAM - 686 103.** - **4 JEANNA MARY SONY (MINOR) REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, 2ND PETITIONER JESSAMMA GEORGE, AGED 51 YEARS, W/O. SONY THOMAS, KALLUKULAM HOUSE, RUBY NAGAR (PO) CHANGANACHERRY, KOTTAYAM - 686 103.** ## **BY ADV. SRI.ABRAHAM JOHN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2019, ALONG WITH MACA.3382/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos. 3382 of 2017 & 566 of 2018 3 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) No.1544/2015 of Motor Accident Claims Tribunal, Kottayam. Appellants in M.A.C.A No.3382/2017 are the legal representatives of the deceased Abin Sony, who sustained serious injuries in a motor accident, subsequently he died at the place of occurrence itself. They claimed Rs.40,00,000/- as compensation under various heads, but the Motor Accident Claims Tribunal awarded compensation of Rs.21,00,000/-. Hence, they preferred M.A.C.A No.3382/2017. Being aggrieved by that award amount, the insurer preferred M.A.C.A No.566/2018. 2. It would be relevant and useful to refer the facts leading to the accident. Claimants case in the lower court was that on 27.05.2015 at 17.05 hrs, the deceased Abin Sony was travelling in a motor cycle KL 36/E-2790, when he reached at Choondacherry, a tipper lorry KL-35/D-1823 driven in a rash and negligent manner hit against the motor cycle. As a result, he fell down and the tipper lorry run over the rider and the pillion rider. The accident was due to the rash and MACA.Nos. 3382 of 2017 & 566 of 2018 **==> picture [8 x 8] intentionally omitted <==** negligent driving of the lorry by its driver. The owner and driver were set ex-parte in the lower court. The insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A10. Respondents documents were marked as Exts.B1 to B5. 3. The deceased Abin Sony was aged 22 years. He was final year student in B.Tech engineering degree at St. Joseph Engineering College, Pala. He was a very brilliant student and expected good prospects. The first petitioner, Sony Thomas is his father, the second petitioner, Jessamma George is his mother, the third and fourth petitioners, Joffin Sony and Jeanna Mary Sony, are his siblings. Claimants contended that the deceased had very bright future in his education, they brought up him with a great expectation. The learned counsel appearing for the appellants in M.A.C.A No.3382/2017 contended that the income taken by the Motor Accident Claims Tribunal is very low. After his education, he was offered with good job and produced Ext.A10 employment letter. MACA.Nos. 3382 of 2017 & 566 of 2018 5 4. The learned counsel appearing for the insurer, who is the appellant in M.A.C.A No.566/2018 contended that excess amount was awarded by the Tribunal. Moreover, 50% was added towards future prospects, which is against the decision of apex court in _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)] .**_ 5. In death case, the assessment 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 MACA.Nos. 3382 of 2017 & 566 of 2018 6 ## considered by the tribunal. ## 6. 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 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._ MACA.Nos. 3382 of 2017 & 566 of 2018 7 _(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. It is an admitted fact that the deceased was an Engineering student at St. Joseph College of Engineering and Technology, Pala. Ext.A7 is the Grade Card issued from the Mahatma Gandhi University. Ext.A8 is the conduct certificate. Ext.A10 is the employment letter which shows he was offered with job as Associate Trainee at Focus De Career Education Private Enterprises. Ext.A10 shows that his employment was accepted by the company and they agreed to give Rs.2,40,000/- per annum. Therefore, his monthly income will be Rs.20,000/-, but they have not proved that income. The learned Tribunal took Rs.12,000/- as his income notionally. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057),**_ the Tribunal is bound to take just amount as his monthly income. Considering the educational qualification and merit of the deceased, his income is taken as Rs.15,000/- per month. In addition to that, 40% is added towards future MACA.Nos. 3382 of 2017 & 566 of 2018 8 prospects in view of _**Pranay Sethi**_ (supra). Then the monthly income will be Rs.21,000/-. The multiplier is 18. The deceased was a bachelor, 50% has to be deducted. The dependency compensation is Rs.21,000x12x18/2=Rs.22,68,000/-. The learned Tribunal awarded Rs.19,44,000/- and the balance amount is Rs.3,24,000/-. The Tribunal awarded Rs.25,000/towards funeral expense, hence Rs.10,000/- has to be deducted and awarded Rs.10,000/- towards loss of estate, hence Rs.5,000/- has to be added. Therefore, total Rs.5,000/has to be deducted from that amount. The balance amount is Rs.3,19,000/-. In view of the decision of apex court in _**Magma General Insurance Co. Ltd. v. Nanuram alias Chuhru Ram and others [ 2018 ACJ 2782]**_ , they are entitled to get Rs.40,000/- each towards consortium and Rs.50,000/- each towards love and affection. Therefore, Rs.1,60,000/- is awarded towards loss of consortium and Rs.1,00,000/towards love and affection. Appellants in M.A.C.A No.3382/2017 are entitled to get enhanced compensation of Rs.5,19,000/- (Rupees Five Lakhs Nineteen Thousand only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award MACA.Nos. 3382 of 2017 & 566 of 2018 **==> picture [8 x 9] intentionally omitted <==** within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. Hence, both M.A.C.A No.3382/2017 and M.A.C.A No.566/2018 are partly allowed, as above. Sd/- **P.D.RAJAN JUDGE** bng/06.02.2019