The Oriental Insurance Company Limited v Bindhu B, Baijy B (minor), Bibin L.B. (minor) and Pankajakshi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940 MACA.No. 768 of 2015** **AGAINST THE AWARD IN OPMV 524/2013 of ADDL MACT-IV,PATHANAMTHITTA DATED 05-07-2014** ## **APPELLANT/3RD RESPONDENT** **THE ORIENTAL INSURANCE COMPANY LIMITED, THIRUVALLA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE,METRO PALACE,KOCHI-18.** **BY ADV.SRI.MATHEWS JACOB (SR.)** ## **RESPONDENTS/PETITIONERS:** **1. BINDHU B, MOOLACKAL CHIRAYIL HOUSE,CHOOLATHERUVU.P.O,MUTHUKULAM VILLAGE,KARTHIKAPPALLY TALUK,PIN-688320.** **2. BAIJY.B(MINOR), MOOLACKAL CHIRAYIL HOUSE,CHOOLATHERUVU.P.O,MUTHUKULAM VILLAGE,KARTHIKAPPALLY TALUK,PIN-688320.** **3. BIBIN LAL.B,(MINOR), MOOLACKAL CHIRAYIL HOUSE,CHOOLATHERUVU.P.O,MUTHUKULAM VILLAGE,KARTHIKAPPALLY TALUK,PIN-688320.** **4. PANKAJAKSHI, MOOLACKAL CHIRAYIL HOUSE,CHOOLATHERUVU.P.O,MUTHUKULAM VILLAGE,KARTHIKAPPALLY TALUK,PIN-688320.** **R1-R4 BY ADV. SRI.T.K.KOSHY R1-R4 BY ADV. SRI.SABU I.KOSHY R1-R4 BY ADV. SRI.ABE RAJAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **bng** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.768 of 2015 & Cross Objection No.138 of 2015 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 1[st] day of June, 2018 ## **JUDGMENT** This appeal is preferred against the award in O.P.(MV)No.524/2013 of the Addl. Motor Accidents Claims Tribunal-IV, Pathanamthitta by the insurer. One U. Biju sustained injuries in a motor accident on 26.04.2013 and the learned Tribunal awarded Rs.12,92,000/- with 9% interest and proportionate cost as compensation. Being aggrieved by that, the insurer preferred this appeal. 2. There is no dispute with regard to the accident. The driver and owner of the vehicle have no dispute with regard to the accident. The insurer admitted the insurance of the vehicle. Dependents and legal representatives of the deceased did not adduce any oral evidence, but their documents were marked as Exts.A1 to A6. 3. The learned counsel appearing for the insurer, who is the appellant in this case contended that ## **M.A.C.A. No. 768 of 2015 & Cross Objection No.138 of 2015** **-2-** excess amount was awarded by the Tribunal towards dependency, 50% of the future prospects added along with income, which is against the decision rendered by the apex court in _**National Insurance Company v. Pranay Sethi [2017 (4) KLT 662 (SC)].**_ Moreover, the award of compensation towards funeral expense, loss of consortium and love and affection are very high. Hence the above amount has to be reduced in view of _**Pranay Sethi**_ case (supra). 4. Dependents filed cross objection No.138/2015 and contended that the deceased was a coolie engaged in tarring work of the road under PWD contractor Rajesh Muthukulam and was getting monthly income of Rs.16,000/-, but the learned Tribunal took only Rs.5,000/- for calculating compensation. Now a days, the average daily wage rate for road construction workers are very high. Therefore, the monthly income has to be fixed at the rate of Rs.16,000/- per month. ## **M.A.C.A. No. 768 of 2015 & Cross Objection No.138 of 2015** **-3-** 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 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_ **M.A.C.A. No. 768 of 2015 & Cross Objection No.138 of 2015** **-4-** _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. In death cases, dependents of the deceased are entitled to get just amount as compensation. 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 ## **M.A.C.A. No. 768 of 2015 & Cross Objection No.138 of 2015** **-5-** 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 this context, I have considered whether the income Rs.5,000/- taken by the Tribunal for a coolie, working as tarring worker is sustainable in law. Apex court considered the same issue in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd**_ (2011 (13) SCC 236). In the above case, the monthly income for a coolie was taken as Rs.4,500/-. In another decision of the apex court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance**_ ## **M.A.C.A. No. 768 of 2015 & Cross Objection No.138 of 2015** **-6-** _**Company Ltd (2014 (2) SCC 735),**_ the monthly income of vegetable vendor was taken as Rs.6,500/- per month. Considering the standard of living and increase in the price index, a coolie is entitled to get just amount as his monthly income. If that be the position, I take Rs.6,000/- as his monthly income and 40% to be added along with the income for calculating the future prospects. The income will be Rs.8,400/-. The deceased was aged 39 years and the multiplier is 15. There are four dependents, hence ¼ is to be deducted. The total dependency compensation will be Rs.8,400x12x15x3/4=Rs.11,34,000/-. The learned Tribunal awarded Rs.9,00,000/-. The balance amount is Rs.2,34,000/-. 8. In view of the _**Pranay Sethi**_ case (supra), the first cross objectioner is entitled to get Rs.15,000/- towards funeral expenses, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards loss of estate. The learned Tribunal awarded Rs.25,000/towards funeral expenses, Rs.1,00,000/- towards for loss of consortium and Rs.5,000/towards loss of estate. Hence, Rs.60,000/- has to be **M.A.C.A. No. 768 of 2015 & Cross Objection No.138 of 2015** **-7-** deducted from the above said amount. The balance amount is Rs. 1,74,000/- (Rs.2,34,000-60,000). 9. The learned counsel appearing for the insurer contended that Rs.2,50,000/- awarded towards loss of love and affection (Rs.1,00,000/- each for petitioners 2 and 3 and Rs.50,000/- for the 4[th] petitioner) has to be deducted. While adverting to the above argument, it is true that the apex court has not adverted to the above aspect in the above decisions. Since no discussion was there with regard to the conventional amount towards love and affection, it is not fair to interfere in the finding of the Tribunal, since it was awarded after considering the various factors like age of the claimants and their attachments towards the deceased. In the circumstance, I am not interfering in the finding of the Tribunal with regard to award towards loss of love and affection and the amount awarded for Rs.2,50,000/- is confirmed. 10. In the circumstance, in addition to the award amount, Rs.1,74,000/- is awarded as enhanced ## **M.A.C.A. No. 768 of 2015 & Cross Objection No.138 of 2015** **-8-** compensation. Hence this appeal and the cross appeal are partially allowed. Cross Objectioners are entitled to get enhanced compensation of Rs.1,74,000/- (Rupees One Lakh Seventy Four Thousand only) with 9% interest from the date of petition till realisation with proportionate cost in addition to the award amount. 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. This appeal and cross objection are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng