The Oriental Insurance Co. Ltd. v. Radhedevi K, Adarsh R. Prasad and Athulya R. Prasad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940** **MACA.No. 3351 of 2015** **AGAINST THE AWARD IN OP(MV) 1281/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 04-05-2015** **------------** ## **APPELLANT/3RD RESPONDENT IN THE OP** **THE ORIENTAL INSURANCE CO. LTD., MATTANCHERRY, REPRESENTED BY THE ASSISTANT MANAGER & AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV.SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS IN OP:** **1. RADHADEVI K W/O.LATE SIVAPRASAD, RAJI BHAVAN, THONNALLUR MURI, PANDALAM VILLAGE, PANDALAM PO-689 501.** **2. ADARSH R.PRASAD** **S/O.LATE SIVAPRASAD, -DO- -DO-** ## **3. ATHULYA R.PRASAD,** **D/O.LATE SIVAPRASAD, -DO- -DO-** **(RESPONDENTS/CLAIMANTS 2 & 3 MINORS ARE DECLARED MAJOR AS PER ORDER IN IA NO.3367/11 DT 19-8-2011 AND 4TH CLAIMANT BEFORE THE TRIBUNAL IS REPORTED DEAD)** **R1-R3 BY ADVS. SRI.K.S.SIVA KUMAR** **SRI.C.B.SREEKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.3351 of 2015 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 24[th] day of July, 2018 ## **JUDGMENT** This appeal is preferred against the award in O.P(MV) No.1281/2008 of the Motor Accidents Claims Tribunal, Pathanamthitta by the insurer. On 22.08.2008 at 3.00 pm, the deceased Sivaprasad sustained serious injuries in a motor accident, while he was travelling in a maruthi car KL-01/U0313 and he succumbed to the injuries on the same day. The learned Tribunal awarded compensation of Rs.15,22,600/with 9% interest and proportionate cost to dependents of the deceased. Being aggrieved by that, the insurer preferred this appeal. 2. In the lower court, accident was disputed by the driver and owner of the offending vehicle. Claimants case was that on 22.08.2008 at 3.00 pm, he was travelling in KL01/U-0313 along Pandalam - Adoor public road, when he reached at the place of occurrence, another vehicle KL 10AA 72 driven in a rash and negligent manner hit against the car, as a result, the deceased Sivaprasad and other passengers ## **M.A.C.A No.3351 of 2015** **-2-** sustained serious injuries. Immediately, they were removed to hospital and Sivaprasad succumbed to the injuries. They preferred OP(MV) Nos.1281/2008, 1481/2008 and 360/2009. The driver and owner were set ex-parte. The insurer admitted the insurance of the vehicle. 3. All claim petitions were tried jointly and OP(MV) No.1485/2008 was treated as the main case, in which the oral evidence of claimants were recorded. They examined PW1 and PW2 and their documents were marked as Exts.A1 to A34. Respondents did not adduce any oral evidence. The learned Tribunal awarded the following amount as compensation in this case. 1. Loss of dependency Rs.10,81,600/- 2. Partial loss of earnings ----3. Transport to Hospital Rs.5,000/4. Extra nourishment ------ 5. Bystander's expenses 6. Damage to clothes Rs.1,000/---- 7. Medical expenses 8. Funeral expenses 8. Funeral expenses Rs.25,000/9. Pain and sufferings Rs.10,000/10.Loss of lover and affection Rs.2,00,000/11. Loss of consortium Rs.1,00,000/12. Loss of estate Rs.1,00,000/- 13. Loss of amenities ----- ## **M.A.C.A No.3351 of 2015** **-3-** ## 10. Others ---- **Total Rs.15,22,600/-** 4. The learned counsel appearing for the appellant contended that the deceased was claimed to be the proprietor of a car workshop and was getting Rs.8,000/-, which was not proved in the lower court. The deceased was aged 47 years at the time of accident and 30% was added towards future prospects, which is also at higher side. Huge amount was awarded towards funeral expenses, loss of love and affection, loss of consortium and loss of estate. Hence, he prays to set aside and modify the award of the Tribunal. 5. The learned counsel appearing for the respondents/claimants contended that the deceased was conducting a workshop and was getting Rs.8,000/-, which was proved in the lower court by the oral evidence of PW1. Just amount was awarded towards love and affection and no interference in the award of the Tribunal is necessary. 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 **M.A.C.A No.3351 of 2015** **-4-** 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. 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_ ## **M.A.C.A No.3351 of 2015** ## **-5-** _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/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years._ 8. The oral evidence of PW1 shows that the deceased was conducting a workshop and was getting ## **M.A.C.A No.3351 of 2015** **-6-** Rs.8,000/- per month. She also produced Ext.A22 rent agreement and Ext.A23 is the licence issued from Pandalam Grama Panchayat. Ext.A24 is the agreement executed by the deceased with Assistant Executive Engineer, Electrical SubDivision, Pandalam and Ext.A25 is the provisional registration certificate issued by Assistant District Industries Officer, Adoor. These documentory evidences corroborate the oral evidence of PW1, who is the wife of the deceased. PW2 is the owner of the property, where the deceased was conducting a workshop and the rent fixed as Rs.200/- per month. In the light of corroborative oral and documentary evidence, there is no reason to reduce the monthly income from Rs.8,000/- to a lower level. Therefore, the contention advanced by the appellant/insurer is to be rejected. Apex court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735)**_ held that, in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. In the above case, the apex court relied on the decision in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd (2011 (13)**_ ## **M.A.C.A No.3351 of 2015** **-7-** _**SCC 236).**_ Therefore, the income of Rs.8,000/- taken by the Tribunal is confirmed. In view of _**Pranay Sethi's** case (supra)_ , 25% of the future prospects has to be added along with the monthly income, since the deceased was aged 47 years. Apex court in _**Pranay Sethi**_ (Supra) held that, where the deceased was between 40 to 50 years, 25% has to be added towards future prospects. If that be the position, the total income is Rs.10,000/- and the total dependency compensation is Rs.10,000x12x13x2/3=Rs.10,40,000/-. The learned Tribunal awarded Rs.10,81,600/-, hence an amount of Rs.41,600/- has to be reduced from the dependency compensation. 9. In view of _**Pranay sethi**_ (supra), claimants are entitled to get Rs.15,000/- towards funeral expenses, Rs.40,000/- towards loss of consortium and Rs.15,000/towards loss of estate. Hence, a sum of Rs.10,000/- from funeral expense and Rs.60,000/- from loss of consortium and Rs.85,000/- from loss of estate have to be deducted. Hence a sum of Rs.1,96,600/- has to be reduced from the total compensation. The total compensation amount is Rs.13,26,000/- (Rs.15,22,600- 1,96,600) with 9% interest and proportionate cost. The insurer is directed to deposit the ## **M.A.C.A No.3351 of 2015** **-8-** modified amount 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. This appeal is disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng