The Oriental Insurance Company Limited v. Saina and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939** **MACA.NO. 472 OF 2015** **---------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.226/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 22.09.2014** **------------------** ## **APPELLANT(S)/3RD RESPONDENT :** **--------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE,KOCHI-18.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/PETITIONERS:** **------------------------** **1. SAINA,** **W/O.LATE VIDYADHARAN,CHUNDEKAT HOUSE, VELLAGALLUR, NOW RESIDING AT MULLAKKAL HOUSE, PARUTHIPRA,SHORNUR,OTTAPALAM TALUK,PIN-678320.** ## **2. KIRAN SYAM.M,(MINOR),** **S/O.LATE VIDYADHARAN, CHUNDEKAT HOUSE, VELLAGALLUR, NOW RESIDING AT MULLAKKAL HOUSE, PARUTHIPRA,SHORNUR,PIN-678320. OTTAPPALAM TALUK REPRESENTED BY HIS MOTHER 1[ST] RESPONDENT SAINA,PIN-678320 .** ## **3. SAROJINI,** **MULLAKKAL HOUSE,PARUTHIPRA, SHORNUR,OTTAPALAM TALUK, PIN-678320.** **R1-R3 BY ADV. SRI.K.B.ARUNKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.472 of 2015 ---------------------------------Dated this the 10[th] day of January, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.226 of 2012 of the Motor Accidents Claims Tribunal, Ottappalam by the insurer. One Vidyadharan sustained injuries in a road traffic accident on 17.11.2011 and he died on the next day. Legal representatives of the deceased preferred the above claim petition and the learned tribunal awarded an amount of Rs.45,57,450/(Rupees forty five lakh fifty seven thousand four hundred and fifty only) with interest and cost as compensation. Being aggrieved by that, the insurer preferred this appeal. ## 2. The claimants who are the legal representatives of the deceased contended that the deceased was working as a Clerk in the Canara Bank and was getting an amount of Rs.31,733/- per month. He was 43 years at the time of accident. The insurer admitted the insurance of the vehicle. The driver and owner of the ## M.A.C.A. No.472 of 2015 2 vehicle were set ex parte. The wife of the deceased was examined as PW1 and Exts.A1 to A14 were marked from her side. PW2 supported the evidence of PW1. Respondent did not adduce any oral and documentary evidence. 3. Learned counsel appearing for the appellant contended that the award of the tribunal towards loss of consortium, funeral expenses are in violation of the decision of the Apex Court in **National Insurance Company** v. **Pranay Sethi 2017 (4) KLT 662 (SC).** The learned tribunal awarded an amount of Rs.1,00,000/towards love and affection, which is also against the direction issued by the Apex Court **Pranay Sethi's** case. 4. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** held that the injured in a motor accidents claim petition is entitled to get just amount of compensation which reads as follows: - (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. M.A.C.A. No.472 of 2015 3 To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 5. It is true that the learned tribunal followed the direction issued by the apex court in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2)KLT 802(SC).** The income of the deceased was Rs.31,733/- per month. His gross salary was calculated as Rs.3,80,796/- per year. The learned tribunal relied the decision in **Rajesh** v. **Rajbir Sing 2013 (3) KLT 89 (SC).** In addition to that, 30% of the annual income of the deceased was calculated, the multiplier was taken as 14 and 10% was deducted towards income tax. There is no illegality in the M.A.C.A. No.472 of 2015 4 calculation towards loss of dependancy and the learned counsel appearing on both sides have no dispute with regard to that point. 6. 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 M.A.C.A. No.472 of 2015 5 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. 7. Learned tribunal awarded an amount of Rs.1,00,000/- towards loss of consortium and an amount Rs.25,000/- towards funeral expenses. No amount was awarded for loss of estate. In view of the decision of the Apex Court in **Pranay Sethi (Supra),** the appellant is entitled to get an amount of Rs.15,000/- for funeral expenses, Rs.40,000/- for loss of consortium and ## M.A.C.A. No.472 of 2015 6 Rs.15,000/- for loss of estate. No amount was awarded for loss of estate, hence the legal representatives are entitled to get Rs.15,000/- for loss of estate. Hence, the excess amount awarded for funeral expenses and loss of consortium has to be deducted and Rs.15,000/- to be awarded towards loss of estate. The balance Rs.55,000/(125000-70000) has to be deducted from the award amount. 8. The learned tribunal awarded an amount of Rs.1,00,000/- towards love and affection, which is just and no interference on that head is necessary in view of the decision reported in **Bhogireddi Varalakshmi and others** v. **Mani Muthupandi and others 2017 ACJ 1391.** Accordingly, the legal representatives of the deceased are entitled to get a total compensation of Rs.45,02,450/- (45,57,450-55,000) (Rupees Forty Five Lakh Two Thousand Four Hundred and Fifty only) with 9% interest per annum from the date of petition till realisation with proportionate cost. The other findings of the tribunal are confirmed. The insurer is directed to M.A.C.A. No.472 of 2015 7 satisfy the award within a period of thirty 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 M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge