Syamalakumari and guardians for minors Shilpa Sivan and Santhanu Sivan v. Prakash Unnithan and The Royal Sundaram Alliance Insurance Company Limited (MACA Nos. 80 of 2014 and 82 of 2014), High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** ## **MACA.No. 80 of 2014** **AGAINST THE AWARD IN OPMV 529/2008 of M.A.C.T.,PUNALUR** ## **APPELLANTS/PETITIONERS:** - **1 SYAMALAKUMARI, W/O. LATE SIVASANKARA PILLAI, PUTHUVELI PUTHEN VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** - **2 MINOR SHILPA SIVAN, AGED 12 YERS, D/O. LATE SIVASANKARA PILLAI, PUTHUVELI PUTHEN VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, REPRESENTED BY MOTHER SYAMALAKUMARI, W/O. LATE SIVASANKARA PILLAI, -DO-** - **3 MINOR SANTHANU SIVAN, AGED 10 YEARS, S/O. LATE SIVASANKARA PILLAI, PUTHUVELI PUTHEN VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, REPRESENTED BY MOTHER SYAMALAKUMARI, W/O. LATE SIVASANKARA PILLAI, -DO-** - **4 SATHYANADAN PILLAI, S/O. KRISHNA PILLAI, PUTHUVELI PUTHEN VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** - **5 OMANAMMA, W/O. SATHYANADAN PILLAI, PUTHUVELI PUTHEN VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS/RESPONDENTS:** - **1 PRAKASH UNNITHAN, S/O. GOPALAKRISHNAN UNNITHAN, 270, KRISHNAVILASOM, EZHNAKULAM, PARACODE, ADOOR, PATHANAMTHITTA DISTRICT - 691 554.** - **2 THE ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED SUNDARAM TOWER,46 WHITES ROAD,ROYAPPETTA,CHENNAI-600 014** **BY ADVS. SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2018, ALONG WITH MACA.82/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.NoS. 80 & 82 of 2014 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** **MACA.No. 82 of 2014** **AGAINST THE AWARD IN OPMV 540/2008 of M.A.C.T.,PUNALUR DATED 19-12-2013** ## **APPELLANTS/PETITIONERS:** **1 SYAMALAKUMARI W/O.LATE SIVASANKARA PILLAI, PUTHUVELIL PUTHEN VEEDU,CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. 2 MINOR SANTHANU SIVAN AGED 10 YEARS S/O.LATE SIVASANKARA PILLAI, PUTHUVELIL PUTHEN VEEDU,CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.(REPRESENTED BY MOTHER SYAMALAKUMARI,W/O.LATE SIVASANKARA PILLAI, PUTHUVELIL PUTHEN VEEDU,CHEPRA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT)** **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS/RESPONDENTS:** - **1 PRAKASH UNNITHAN S/O.GOPALAKRISHNAN UNNITHAN, 270, KRISHNAVILASOM, EZHANKULAM, PARACODE, ADOOR, KOLLAM DISTRICT-691 554.** - **2 THE ROYAL SUNDARAM ALLIANCE COMPANY LTD SUNDARAM TOWER, 46 WHITES ROAD, ROYAPPETTA, CHENNAI-600 014.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SMT.PREETHY R. NAIR SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2018, ALONG WITH MACA.80/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.NoS. 80 & 82 of 2014 3 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) Nos.529/2008 and 540/2008 of the Motor Accidents Claims Tribunal, Punalur by the legal representatives of the deceased Sivasankara Pillai and the guardian of minor Santhanu Sivan. On 31.01.2008 at 6.30 am, the deceased and other persons were travelling in a car KL-26/4873 from Thiruvananthapuram to Kottarakara through M.C road, when they reached at Pulimath Junction, the vehicle hit on the side wall of the road, as a result, the passengers sustained serious injuries and Sivasankara Pillai died while undergoing treatment at Medical College Hospital, Thiruvananthapuram. The learned Tribunal awarded compensation of Rs.8,01,000/in OP(MV) No.529/2008 and Rs.1,50,025/- in OP(MV) No.540/2008 with 7.5% interest and cost. Being aggrieved by that, the legal representatives of the deceased and the guardian of the minor preferred these appeals. 2. The accident was not disputed by the respondents in the lower court, but the first respondent denied the cause of accident. The second respondent admitted the insurance of the vehicle. The above cases were MACA.NoS. 80 & 82 of 2014 4 tried along with OP(MV) Nos.535/2008 and 538/2008. Claimants examined PW1 and PW2 and their documents were marked as Exts.A1 to A30. Respondents did not adduce any oral evidence. 3. The learned counsel appearing for the appellants contended that the deceased in OP(MV) No.529/2008 was working abroad as a crane operator and was getting Rs.40,000/- per month, but the learned Tribunal took Rs.6,000/- as the monthly income for calculating dependency compensation, which is very low. His family consist of two minor children, parents and his wife. Hence, appellants are entitled to get enhanced compensation. 4. The learned counsel appearing for the insurer contended that just amount was awarded by the Tribunal and no interference is necessary. 5. 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_ MACA.NoS. 80 & 82 of 2014 5 _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._ _(vii) The age of the deceased should be the basis for applying the multiplier._ _(viii) Reasonable figures on conventional heads, namely, loss_ MACA.NoS. 80 & 82 of 2014 6 _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._ 6. In fatal accident case, the measure 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 considered by the tribunal. 7. In M.A.C.A No.80/2014, there is no dispute with regard to the employment of the deceased. Ext.A8 is the pass port, which shows that he was working in Kuwait from 1999 MACA.NoS. 80 & 82 of 2014 **==> picture [8 x 9] intentionally omitted <==** onwards. Ext.A9 is the copy of visa and Ext.A10 is the salary certificate issued from Kuwait Reconstruction House, which shows that the deceased was getting 159 Kuwait Dinar. Even though, Ext.A9, A10, A11 and A13 were produced before the lower court, the above salary was not properly proved and the above documents were not counter signed by the Indian Embassy, Kuwait. In the absence of such counter signature, it is difficult to take that amount for calculating compensation, it is better to take just monthly income as per the Indian standard. There are five dependents, out of which two are minors. The learned Tribunal took Rs.6,000/- as his monthly income, but the appellants claimed Rs.40,000/- per month. The deceased was 42 years at the time of accident. Hence, as a crane operator, just income has to be taken. In view of _**Dixit**_ _**Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057),**_ this court take Rs.12,000/- as his monthly income. In addition to that, in view of _**Pranay Sethi**_ (supra), 25% is to be added towards future prospects. Hence the monthly income of Rs.15,000/- (Rs.12,000+3,000) is taken for calculating the dependency compensation. The total amount is Rs.15,000x12x14=Rs.25,20,000/-, out of which, 1/4[th] is to be MACA.NoS. 80 & 82 of 2014 8 deducted in view of _**Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104).**_ Then the amount is Rs.18,90,000/-. The learned Tribunal awarded Rs.7,56,000/and the balance amount is Rs.11,34,000/-. In addition to that Rs.30,000/- towards loss of consortium, Rs.10,000/- towards loss of estate, Rs.15,000/- towards funeral expense and Rs.25,000/- towards pain and suffering are awarded. Appellants are entitled to get enhanced compensation of Rs.12,14,000/- (Rupees Twelve Lakhs Fourteen Thousand only) with 9% interest and proportionate cost in addition to the award amount. 8. In M.A.C.A No.82/2014, the minor sustained comminuted fracture mandible and fracture shaft of femur. He was aged 10 years and was a student in 5[th] standard. The learned Tribunal awarded following amount as compensation. |1.|Transport to hospital and back|Rs.1,500/-| |---|---|---| |2.|Extra nourishment|Rs.1,200/-| |3.|Damage to clothing and other|| ||articles|Rs.1,000/-| |4.|Cost of medicine and|Rs.1,20,322/-| ||bystanders expenses|Rs.1800/-| |5.|Compensation for pain and|| ||suffering|Rs.8,000/-| |6.|Compensation for permanent|| MACA.NoS. 80 & 82 of 2014 9 disability and compensation for loss of earning power Rs.16,200/Total Rs.1,50,022/- **Rounded to Rs.1,50,025/-** Since he sustained fracture shaft of femur, he is entitled to get just amount as compensation. Hence the following amount is awarded as enhanced compensation. For pain and suffering Rs.17,000/-, for loss of amenities Rs.25,000/- and for permanent disability additional amount of Rs.25,000/- are awarded. The injured is entitled to get enhanced compensation of Rs.67,000/- (Rupees Sixty Seven Thousand only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the enhanced compensation of Rs.12,14,000/- in M.A.C.A No.80/2014 and Rs.67,000/- in M.A.C.A No.82/2014 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. These appeals are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng/18.12.18