Sree Devi and others v. P.K. Muhammed and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** ## **WEDNESDAY, THE 26TH DAY OF SEPTEMBER 2012/4TH ASWINA 1934** ## **MACA.No. 2296 of 2008 ( )** **------------------------OPMV.1185/2002 of M.A.C.T., PALAKKAD** ## **APPELLANT(S)/PETITIONERS:** **------------------------** **1. SREEDEVI, S/O. LATE SRI R.KRISHNAPRASAD, AGED 41, KRISHNASREE, KALLIKKAD, THIRUVELLAYI PALAKKAD.** **2. U.KRISHNA THULASSI, D/O. LATE SRI R. KRISHNAPRASAD, KRISHNASREE KALLIKKAD, THIRUVELLAYI, PALAKKAD.** **3. U.SREENATH,S/O.LATE SRI.R.KRISHNAPRASAD KRISHNASREE, KALLIKKAD, THIRUVELLAYI PALAKKAD.** ## **4. K.THULASEEBHAI,** **W/O. LATE SRI. RADHAKRISHNA MENON, KRISHNASREE KALLIKKAD, THIRUVELLAI, PALAKKAD. (MINOR APPELLANTS 2 & 3 ARE REPRESENTED BY THEIR MOTHER, THE 1ST PETITIONER AS NEXT FRIEND AND GUARDIAN)** ## **BY ADV. SMT.BINDU GEORGE** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. P.K.MUHAMMED, AGE AND FATHER'S NAME NOT KNOWN, POTTAKKATTIL HOUSE, KADUGATTUKUNDU POST KALPAKANCHERRY, MALAPPURAM DISTRICT.** **2. UNITED INDIA INSURANCE CO.LIMITED P.B.NO.533, WHITE LINES BUILDING, KALLAI ROAD CALICUT-2.** **MACA.No.2296/2008** **2** ## **3. K.IBRAHIM, AGE AND FATHER'S NAME NOT** **KNOWN, KUTTUKATTIL HOUSE,** **POST KALPAKANCHERRY, MALAPPURAM. (DELETED)** **RESPONDENT NO.3 IS DELETED FROM PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 22.3.2012 IN I.A.No.694/2012 IN MACA NO.2296/2008)** **BY ADV. SRI.MATHEWS JACOB (SR.) BY ADV. SRI.P.JACOB MATHEW FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.HEMA & P.S.GOPINATHAN, JJ. -----------------------------------------M.A.C.A.No.2296 OF 2008 ------------------------------------------Dated this the 26[th] day of September, 2012** ## **J U D G M E N T ~~~~~~~~~~~** ## P.S.Gopinathan, J. Appellants are the legal heirs of late Krishnaprasad, who lost his life in a road accident that occurred at 3.30 p.m., on 21.3.2002, along Kozhikode - Palakkad road. The deceased was driving car bearing Reg. No. PY01-3142. It was hit against by a lorry bearing Reg.No.KL10/M9158 owned, insured and driven by the respondents. As a result of the accident, late Krishnaprasad, who was working as an Assistant Administrative Officer, employed in National Insurance Company, sustained severe injuries to which he succumbed while undergoing treatment. Another passenger in the car also sustained injuries. The appellants moved O.P.No.1185/2002 before the Motor Accidents Claims Tribunal, Palakkad, seeking an amount of Rs.35 lakhs as compensation with an allegation that they were dependents of the deceased Krishnaprasad and that the accident occurred because of the rash and negligent driving of the 3[rd] respondent and hence all the respondents are liable to compensate. The other injured filed a petition as O.P.No.878/2002. 2 M.A.C.A.No.2296/2008 2. Respondents 1 and 3 remained exparte. The 2[nd] respondent filed a written statement admitting the insurance of the lorry, but denying the negligence attributed against the 3[rd] respondent. It was further contended that the accident occurred because of the negligence of the deceased in driving the car. The other averments in the petition regarding the age of the deceased, occupation, income and relationship with the appellants were put to strict proof. It was further contended that the claim made by the appellants is excessive and without any basis. 3. The Tribunal below enquired the petition along with O.P.No.878/2002. On the side of the appellants, PWs 1 to 4 were examined. Exts.A1 to A30 were marked. No evidence was adduced by the 2[nd] respondent. On appraisal of the materials on record, the Tribunal arrived at a finding that the accident occurred because of the negligence of the 3[rd] respondent in driving the lorry and therefore, the 2[nd] respondent as insurer is liable to compensate the appellants. The Tribunal allowed a sum of Rs.13,11,700/-. The details are as follows: M.A.C.A.No.2296/2008 3 - Loss of dependency Rs.12,79,200/Loss of consortium Rs.10,000/Loss of Love and affection Rs.15,000/Loss of estate Rs.2,500/Funeral expenses Rs.5,000/--------------Total Rs.13,11,700/============ Aggrieved by the inadequacy of the compensation awarded, this appeal is preferred. 4. We have heard Smt.Bindu George, the learned counsel appearing for the appellant and senior counsel Sri.Mathews Jacob appearing for the 2[nd] respondent. Perused the impugned award as well as the evidence on record. 5. As mentioned earlier, the Tribunal arrived at a finding that the accident occurred because of the rash and negligent driving of the lorry. As against that finding, no appeal is preferred by the 2[nd] respondent. Therefore, that finding has become final and we are disposing the appeal treating that the dispute is only regarding quantum. M.A.C.A.No.2296/2008 4 6. It is brought out by the evidence on record that late Krishnaprasad was employed as an Assistant Administrative Officer in National Insurance Company. As regards the age of the deceased, there is a little inconsistency in the evidence. Appellants pleaded that he was aged 45 years. In the postmortem certificate, it is mentioned as 46 years. From the bar, the learned counsel for the appellants submitted that as per the school admission register, late Krishnaprasad was aged 47 years. Therefore, we find that as on the date of accident, he was aged 47 years. Ext.A4 was produced as the pay slip. Ext.A14 was produced as the salary certificate. Going by Ext.A4 and A14, we find that gross salary is shown as Rs.19,862/-. It is by adding a sum of Rs.2,680/- as depreciation allowance towards the salary. From the arguments advanced from the bar, it is disclosed that late Krishnaprasad had availed car loan and had been using a motor car for attending the office and that Rs.2,680/- was given as depreciation allowance for using the car. Therefore, we find that the depreciation allowance cannot be added to the income of late Krishaprasad. Barring that, we find that the gross salary of late Krishnaprasad can be determined at Rs.17,182/-. M.A.C.A.No.2296/2008 5 Evidence was adduced by the appellants that late Krishaprasad had better prospects and he is likely to be retired as a Senior Divisional Manager. That is the evidence of PW4. But we notice that no material is produced before the Tribunal regarding the chances of promotion, stagnation, if any, position in the seniority list etc. and when he would get promotion. The evidence of PW4 is not supported by any authenticated document. Therefore, we find that the evidence of PW4 on that aspect cannot be fully relied upon. Our attention was canvassed by the learned counsel for the appellants to the decision reported in Sarala Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. We had also gone through the decisions reported in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994(1) KLT 67 (SC) ] and U.P.State Road Transport Corporation v. Trilok Chandra [1996(2)KLT 218(SC) referred in Sarala Verma. Being guided by the above precedents of the Apex Court, we are of opinion that late Krishnaprasad being aged 47 years, the appellants are entitled to claim the compensation for loss of dependency by counting chances for future prospects. Since there is no specific data before us, we find that, for the purpose of determination of compensation, the M.A.C.A.No.2296/2008 6 monthly income of late Krishnaprasad can be calculated at Rs.20,000/-. 7. It is admitted by the learned counsel for the appellants that late Krishnaprasad was an assessee under the Income Tax and and he is liable to pay income tax. Regarding the income tax paid by late Krishnaprasad, no evidence was let in. Therefore, we are persuaded to have some guess work. It is also admitted that the deceased was liable to pay profession tax regarding which no evidence was adduced. At the time of argument, the learned counsel for the appellant filed a statement calculating loss of dependency at Rs.19,60,569/-. To arrive at such amount 30% of the income was added towards future prospects. 1/4 was deducted for personal expenditure. Income tax was deducted at a rate prevailing in 2001-2002. Going by the statement we couldn't make out any head or tail out of it. We are of opinion that an average of 20% can be deducted from the amount we calculated earlier towards income tax and net monthly income can be determined at Rs.16,000/-. Regarding the deduction towards personal expenditure, according to the learned counsel for the appellants, 1/4[th] is to be deducted. On the other hand, the plea M.A.C.A.No.2296/2008 7 of the 2[nd] respondent is to deduct 1/3[rd] , with an argument that the 4[th] appellant is the mother of late Krishnaprasad and there is no evidence adduced to show that the late Krishnaprasad was the only son of the 4[th] appellant and she was depending upon him and that there are only three dependents and that since Krishnaprasad was using a car, personal expenditure would have been more. We find merit in the submission made by the learned counsel for the 2[nd] respondent. Taking into account of the fact that late Krishnaprasad was working as the Assistant Administrative Officer and that he had been using the car for attending the office, we find that it would be appropriate to deduct 1/3[rd] towards the personal expenditure. By doing so, we find that to determine the compensation, the monthly loss of dependency can be determined at Rs.10,700/- (rounded - 16,000x2/3). The Tribunal had adopted a multiplier of 13. Having regard to the age of the deceased, we find that the multiplier adopted by the Tribunal is correct. If calculated so, we find that a sum of Rs.16,69,200/- would be reasonable compensation instead of Rs.19,60,569/- calculated by the learned counsel. Deducting the amount already awarded, we find that the appellants are entitled to a further sum of Rs.3,90,000/- 8 M.A.C.A.No.2296/2008 towards loss of dependency. As regards the compensation awarded on other counts, we find that the 1[st] appellant is entitled to an additional sum of Rs.5,000/- towards loss of consortium and that the appellants are entitled to another sum of Rs.5,000/towards loss of estate. Compensation awarded by the Tribunal on the other heads are fair and reasonable. In total, the appellants are entitled to an additional sum of Rs.4,00,000/- (rupees four lakhs only) as compensation. 8. In the result, this appeal is allowed and the 2[nd] respondent is directed to pay a further sum of Rs.4,00,000/(rupees four lakhs only) as additional compensation with interest at the rate of 7.5% p.a from the date of petition till deposit. The 2[nd] respondent is directed to deposit the same within three months. The appellants shall share the additional amount in the ratio as determined by the Tribunal. The appellants are entitled to get their cost to the extent to which they have succeeded. ## **(K.HEMA, JUDGE)** ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/27/9**