United India Insurance Company Limited v. Bindu G. Varghese and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940** **MACA.No. 344 of 2015** **AGAINST THE AWARD IN OPMV 870/2010 of MACT,PATHANAMTHITTA DATED 25-09-2014** ## **APPELLANT/RESPONDENT** **UNITED INDIA INSURANCE COMPANY LIMITED PATHANAMTHITTA, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA" HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/ PETITIONERS:** **1. BINDU G.VARGHESE W/O. LATE BINU ALEX, VALIYATHU THEJUS, AYYAMKOICKAL MURI, ERATHU VILLAGE, MANAKKALA P.O., ADOOR TALUK, PIN 689320.** **2. BIBY ELZA BINU (MINOR) D/O. LATE BINU ALEX, VALIYATHU HOUSE, AYYAMKOICKAL MURI, ERATHU VILLAGE, MANAKKALA P.O., ADOOR TALUK NOW REPRESENTED BY HER MOTHER 1ST RESPONDENT, PIN 689320.** **3. ALEYAMMA PAPPACHAN W/O. LATE PAPPACHAN @ T.J.PAPPI, VALIYATHU PUTHEN VEEDU, AYYAMKOICKAL MURI, ERATHU VILLAGE, MANAKKALA P.O., ADOOR TALUK, PIN-689320.** **R1,2,3 BY ADV. SRI.T.K..BIJU (MANJINIKARA) (CAVEATOR)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **bng** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.344 & 1095 of 2015 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 23[rd] day of July, 2018 ## **JUDGMENT** These appeals are preferred against the award in O.P(MV) No.870/2010 of the Motor Accidents Claims Tribunal, Pathanamthitta. On 09.07.2010 at 6.30 pm, the deceased Binu Alex was riding a motor cycle KL02-M-5028 from Adoor to Manakkala with a pillion rider, when they reached at the place of occurrence, another car KL02-M-6777 driven in a rash and negligent manner hit against the motor cycle, as a result, the rider and the pillion rider sustained serious injuries, while undergoing treatment both of them died and the legal heirs and dependents of Binu Alex preferred OP(MV) Nos.870/2010. The learned Tribunal awarded Rs.41,91,903/- with 9% interest and proportionate cost, being aggrieved by that, dependents of the deceased Binu Alex preferred M.A.C.A No. 1095/2015 and the insurer preferred M.A.C.A No.344/2015. 2. In the lower court, the driver and owner of the vehicle were set ex-parte. The insurer admitted the insurance of the vehicle. The legal heirs and dependents of the pillion rider preferred OP(MV) Nos.871/2010. Both OP(MV) ## **M.A.C.A Nos.344 & 1095 of 2015** **-2-** Nos.870/2010 and 871/2010 were tried jointly. The evidence consist of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A33. Respondents did not adduce any oral or documentary evidence. The learned Tribunal awarded the following amount as compensation in OP(MV) Nos.870/2010. 1. Loss of dependency Rs.39,00,000/2. Loss of estate Rs.10,000/3. Transport to Hospital Rs.5,000/4. Damage to clothes Rs.1,000/---5. Bystanders expenses 6. Medical expenditure Rs.15,903/7. Funeral expenses Rs.25,000/8. Pain and sufferings Rs.10,000/9. Loss of love, affection and old age support Rs.1,25,000/10. Loss of consortium Rs.1,00,000/11. Extra nourishment ----- **Total Rs.41,91,903/-** 3. In M.A.C.A No.1095/2015, the learned counsel appearing for the appellant contended that the deceased was working as a cleaning supervisor in Emirates Flight Catering Company, Dubai and was getting 3183 durhams. Apart from the salary, the company provided transport allowance of 403 durhams and the total income was 3586 durhams per month. ## **M.A.C.A Nos.344 & 1095 of 2015** **-3-** The learned Tribunal took Rs.25,000/- as his monthly income. The deceased was aged 40 years at the time of accident and the award of the Tribunal is very low. 4. The learned counsel appearing for the appellant in M.A.C.A No.344/2015 contended that there was no evidence to show that the deceased was permanently employed at Dubai. He passed S.S.L.C and fitter course from ITI. They relied on the decision reported in _**Valsamma v. Binu Jose (2014 (1) KLT 10)**_ and pray to reduce the compensation according to the Indian standards. Moreover, the award towards funeral expense and loss of consortium are very high. 5. While adverting to the above argument, it is better to rely the decision reported by the apex court in _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ wherein it was 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._ ## **M.A.C.A Nos.344 & 1095 of 2015** **-4-** _(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 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_ ## **M.A.C.A Nos.344 & 1095 of 2015** **-5-** _every three years._ 6. It is true that the employment in gulf countries is not certain and there is likelihood of terminating the services of such employees at any time. In case of such uncertain employees the observation made by this court in _**Valsamma**_ _**v. Binu Jose** 'case (supra)_ is correct and this court held as follows: _“It may be mentioned here that employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a government service there. If he is a permanent employee there, then that can be taken as permanent income and that may be useful to assess the compensation payable to the dependents of the victim on that basis. In the case of a nonpermanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such circumstances, we will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during he relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon. Considering the facts and circumstances in this case, this decision is not binding.”_ ## **M.A.C.A Nos.344 & 1095 of 2015** **-6-** 7. In this case, one of the claimants was examined as PW1 and co-worker was examined as PW2. The evidence of PW1 shows that the deceased got a permanent job at Dubai and was getting 3183 durhams per month. She produced Ext.A15 salary certificate issued from Emirates Flight Catering Company, Dubai. It shows that the deceased Binu Alex, the holder of Indian Passport was sponsored employee by the company from 11.04.1994 to 10.07.2010 and holding the position of their team member in that company and his monthly emoluments are 3183 durhams, apart from his salary he was provided with company transport allowance of 403 durhams. The Senior Human Resource Manager, Admistration of System, Emirates Flight Catering Company certified the above salary. In Ext.A29 passport it shows that he was employed in Dubai and was permitted to continue in the Emirates Flight Catering Service till 15.03.2011. It is clear that he was permanently employed at Dubai and getting good salary as certified in Ext.A15. No uncertainty found in Exts.A29 and A15, in such a situation, it is not safe to reduce the income for the purpose of assessing compensation under the head of loss of dependency. The learned Tribunal took Rs.25,000/- as ## **M.A.C.A Nos.344 & 1095 of 2015** **-7-** the monthly income for calculating dependency, which is just and reasonable. In view of _**Pranay Sethi**_ 'case (supra), while the deceased was having permanent job and was 40 to 50 years of age, the addition towards future prospects should be 30%. Rightly the Tribunal took 30%, in addition to Rs.25,000/and no interference is necessary. The amount towards loss of dependency at the rate of Thirty Nine lakhs is confirmed. 8. The appellant in M.A.C.A No.344/2015 contended that excess amount was awarded towards funeral expense and loss of consortium. According to _**Pranay Sethi'**_ case (supra), the amount towards loss of estate and funeral expense are Rs.15,000/- each and loss of consortium is Rs.40,000/- only. The learned Tribunal awarded Rs.10,000/towards loss of estate, Rs.25,000/- towards funeral expense and Rs.1,00,000/- towards loss of consortium. The appellant is entitled to get Rs.15,000/- towards loss of estate. Therefore, the excess amount of Rs.65,000/- has to be deducted from the total award amount of Rs.41,91,903/-. The balance amount is Rs.41,26,903/- (Rs.41,91,903-65,000). The insurer, who is the appellant in M.A.C.A No.344/2015 is directed to satisfy the award of Rs.41,26,903/- with 9% interest from the date of ## **M.A.C.A Nos.344 & 1095 of 2015** **-8-** petition and proportionate cost 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 partly allowed, as above. Sd/- **P.D.RAJAN JUDGE** bng