Syamalakumaran and others v. Kunhi Muhammed, Moideenkutty and United India Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940** **M.A.C.A.No. 1190 of 2015** ## **AGAINST THE AWARD IN O.P.(MV).NO.1035/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 16-06-2014** ## **APPELLANTS/PETITIONERS:** **------------------------------------------** - **1 SYAMALAKUMARAN,** **S/O. NAKAPPAN, AGED 57 YEARS, KANAKULANGARA VEEDU, VAROD P.O., KOTTAYI, PALAKKAD DISTRICT.** ## **2 VIJAYALAKSHMI,** - **W/O. SYAMALAKUMARAN, AGED 52 YEARS, KANAKULANGARA VEEDU, VAROD P.O., KOTTAYI, PALAKKAD DISTRICT.** ## **3 SIVAPRASAD,** - **S/O. SYAMALAKUMARAN, AGED 29 YEARS, KANAKULANGARA VEEDU, VAROD P.O., KOTTAYI, PALAKKAD DISTRICT.** - **4 PRIYANKA, D/O. SYAMALAKUMARAN, AGED 25 YEARS, KANAKULANGARA VEEDU, VAROD P.O., KOTTAYI, PALAKKAD DISTRICT.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** ## **RESPONDENTS/RESPONDENTS :** **------------------------------------------------** ## **1. KUNHI MUHAMMED,** **AGE NOT KNOWN, THUVOOR, MALAPPURAM P.O., PIN - 676 501, KERALA** ## **2. MOIDEENKUTTY,** **S/O. MUHAMMED, AGED 58 YEARS, KOOTHUPARAMBU VEEDU, PAYAPULLU, THUVVUR P.O., MALAPPURAM DISTRICT - 676 501** ## **3. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, KILIYAMANIL PLAZA, UP HILL,** - **MALAPPURAM - 676 505 KERALA.** - **R3 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-042018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Bb** ## **P.D.RAJAN, J. ----------------------------------M.A.C.A.No.1190 of 2015 -----------------------------------Dated this the 6[th] day of April, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P. (MV).No.1035 of 2010 of the Motor Accidents Claims Tribunal, Palakkad, by the legal representatives and the dependents of the deceased Krishna Prasad. The deceased sustained injuries in a motor accident on 13.8.2009, while undergoing treatment, he succumbed to the injuries, after 72 days of the accident, i.e. on 5.11.2009. The learned Tribunal awarded compensation of Rs.7,45,000/- with 9% interest and cost. Being dissatisfied by that, the dependents preferred this appeal. 2. There is no dispute with regard to the accident by the respondents. The claimants' case in the lower court was that the deceased was riding a motor cycle from Palakkad to Kozhikode through NH213 and when he M.A.C.A.No.1190 of 2015 : 2 : reached at Kayaramkode, the offending vehicle bearing Reg.No.KL14B 3321 driven in a rash and negligent manner, hit against the deceased, who was riding the motor cycle bearing Reg.No.TN-37-E-7213 and he sustained serious injuries. The driver and owner of the lorry did not defend the case. The insurer admitted the insurance of the vehicle. The claimants examined PWs 1 and 2 and produced Exts.A1 to A24 in support of their claim. Respondents did not adduce any evidence. The third party evidence was marked as X1 and X1(a). 3. The learned counsel appearing for the appellants contended that the deceased was 27 years at the time of accident. He was an Electrician and was getting a monthly income as Rs.6,000/-, but the learned Tribunal took only Rs.5,000/- as monthly income. The multiplier 13 was taken after considering the age of the mother. But, in view of the decision reported in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2) KLT 802(SC)** , the correct multiplier is 17. Meagre amount was awarded by the Tribunal. The dependents are entitled to get just M.A.C.A.No.1190 of 2015 : 3 : amount. The learned counsel appearing for the insurer submitted that just amount was awarded by the Tribunal and no interference is necessary. 4. Apex Court in **General Manager, Kerala State Road Transport Corporation** v. **Susamma Thomas 1994 (1) KLT 67 (SC)** held that “in fatal accident action, measure of damages is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death” in which, paragraph 9 reads as follows: 9. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.” 5. Therefore, while assessing damages for compensation to the dependents of the deceased, the court M.A.C.A.No.1190 of 2015 : 4 : has to take into account many factors like life expectancy of the deceased and the dependents and the amount that the deceased could have been contributed to them during the remaining part of his life. This position was reiterated by the Apex Court in **Sarla Verma's** Case (supra). Besides the above decision in **Susamma Thomas's Case** (supra), Apex Court also referred the decision in **U.P.State Road Transport Corporation and Others** vs. **Trilok Chandra and Others (1996) 4 SCC 362** . Therefore, the dependents are entitled to get just amount. 6. The deceased had obtained certificate from Government of Kerala, Technical Institute for the course of Electrician and Wireman, therefore, for calculating dependency, the multiplicant of Rs.6,000/- is reasonable. Apex Court in **Dixit Kumar and Others** vs. **Om Prakash Goel 2017 ACJ 2057** held that in the absence of any contra evidence, the Tribunal cannot reduce income to a lower side without any proper evidence. 7. The principle adopted in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** M.A.C.A.No.1190 of 2015 : 5 : ## was 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 M.A.C.A.No.1190 of 2015 : 6 : 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. 8. In view of the above decision, 40% of the income has to be added along with the income of the deceased, considering his future prospects. If that be the position, 40% of the income i.e., Rs.2,400/- (6000x40%) has to be added. Then, the total income will be Rs.8,400/-. In the instant case, the multiplier adopted is 17. Accordingly, the claimants are entitled to get Rs.8,56,800/- (8400x12x17/2) for loss of dependency. Along with that, appellants are entitled to get enhancement on the other heads. The M.A.C.A.No.1190 of 2015 : 7 : learned counsel appearing for the appellants submitted that the deceased was admitted in a hospital for 72 days and a bystander was appointed during that period. No amount was awarded for bystander expenses, damages to clothing, transport to hospital and pain and suffering. 9. The pain and suffering suffered by the injured cannot be assessed in terms of money. Even then, considering the nature of treatment and pain suffered by the deceased, he is entitled to get just amount on that head. For loss of estate the Tribunal awarded Rs.5,000/and for funeral expenses Rs.25,000/- was awarded. In view of **Pranay Sethi's** Case (supra), appellants are entitled to get additional Rs.10,000/- for loss of estate, but Rs.10,000/- has to be deducted from funeral expenses. In addition to that, the appellants are entitled to get additional amount Rs.7,000/- for bystander expenses, Rs.2,000/- to damages to clothing, Rs.1,000/- to transport to hospital, Rs.25,000/- to pain and suffering. Since there is a variation for the amount awarded for funeral expenses and loss of estate, that amount has to be adjusted with the M.A.C.A.No.1190 of 2015 : 8 : award of the Tribunal. The learned Tribunal awarded Rs.3,90,000/- towards loss of dependency. The balance is Rs.4,66,800/- (8,56,800 –3,90,000). Hence, the appellants are entitled to get a total of Rs. **5,01,800/-** . (4,66,800+10,000+7,000+2,000+1,000+25,000 - 10,000). Hence, in addition to the amount of Rs.7,45,000/-, the insurer is directed to pay Rs. **5,01,800/-** as enhanced compensation with 7% interest from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award 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. Sd/- **P.D.RAJAN JUDGE.** Bb/10/4/2018 _[True copy]_ _P.A to Judge_