Dismissed

National Insurance Company Ltd. v. Saraswathy.T.P

Kerala HC23 Nov 2018MACA/110/2015

Case brief

AI extract

What is this about?

The High Court dismissed an insurance appeal filed against a Motor Accidents Claims Tribunal award. The insurer contested the entitlement of the deceased's legal representatives to dependency compensation. The court held the new contention was not in order as it contradicted the lower court record.

What did the court decide?

The appeal filed by the insurer was dismissed, and the Tribunal's award of Rs. 3,18,000 was upheld.

National Insurance Company Ltd. Vs Saraswathy.T.P — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940

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M.A.C.A.No. 110 of 2015

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AGAINST THE AWARD IN OPMV 2361/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 01-09-2014

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APPELLANT:

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NATIONAL INSURANCE COMPANY LTD

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COCHIN REGIONAL OFFICE, REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.

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BY ADVS. SRI.LAL GEORGE SMT.LAKSHMI V.PARAMESWARAN

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RESPONDENTS:

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1 SARASWATHY.T.P AGED 48 YEARS

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D/O.LATE PADMANABHAN, PADINJARE KOTTAD HOUSE, NETTOOR PO, VIA.MARADU, COCHIN - 682 304

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2 MURALI K.P. KUNJUMON AGED 44 YEARS S/O.LATE PADMANABHAN, PADINJARE KOTTAD HOUSE, NETTOOR PO, VIA.MARADU, COCHIN - 682 304.

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3 A. BALAKRISHNA VADHYAR S/O.ANANDHA VADHYAR, DEVI NIVAS, WARD NO.17, WEST OF X-RAY JUNCTION, CHERTHALA P.O, PIN - 688 524

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4 B. RAMESH S/O.BALAKRISHNA VADHYAR, DEVI NIVAS, WARD NO.17, WEST OF X-RAY JUNCTION, CHERTHALA P.O, PIN - 688 524.

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BY ADVS.

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SRI.R.KRISHNAKUMAR (CHERTHALA)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No. 110 of 2015

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JUDGMENT

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This appeal is preferred against the award in op(mv) No.2361 of 2002 of the Motor Accidents Claims Tribunal, Ernakulam . On 29-01-2012 at 10.15 am, one Valsala met with an accident while she was walking through the side of the Alappuzha - Ernakulam NH Road, and she died on the way to the hospital, the learned Tribunal awarded Rs.3,18,000/(Three Lakhs eighteen Thousand Only) as compensation to the legal representatives of the deceased. Being aggrieved by that, the insurer preferred this appeal.

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The accident was not disputed by the respondents in the lower court. Claimants case was that on 29-01-2012 at 10.15 am, the deceased Valsala was walking along the western side of the Alappuzha - Ernakulam NH road, a car KL/32 A/6217 driven in rash and negligent manner hit against the deceased and she sustained serious injuries. Immediately she was removed to Lakeshore Hospital, Nettoor, but she died on the way to the hospital. The driver and owner of the vehicle filed a written statement and contested the matter. R3 admitted the insurance of the vehicle. The claimants did not adduce any oral evidence, but their documents were marked

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M.A.C.A.No. 110 of 2015

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as Exts. A1 to A5.

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Appellant contended that the respondents 1 and 2 are not dependents of the deceased and they are not entitled to get dependency compensation. The deceased was a spinster. Therefore, the amount awarded towards the dependency compensation is to be reduced. He relied on the decision in Manjuri Bera V. Oriental Insurance Company Ltd. 2008 (2) KLT 873 (SC).

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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

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not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got

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M.A.C.A.No. 110 of 2015

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better job and earned more income also have to be considered by the tribunal.

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5. Apex court in National Insurance Company V.

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Pranay Sethi [2017 (4) KLT 662 (SC)] held as follows:

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61. In view of the aforesaid analysis, we proceed to record our conclusions:-

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(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.

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(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.

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(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.

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(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

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M.A.C.A.No. 110 of 2015

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the necessary method of computation. The established income means the income minus the tax component.

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(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.

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(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

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(vii) The age of the deceased should be the basis for applying the multiplier.

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(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.

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The deceased was a spinster aged 55 years at the time of her death. Claimants stated that the deceased was

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getting Rs.7,500/- per month, but no evidence has been taken in the lower Court to prove the income. In the absence of any evidence, notional income was taken by the Tribunal. Even though, the appellant contended that claimants are not entitled to get compensation towards dependency, in view of decision in Manjuri Bera (supra), such a contention was not taken in the lower court. I have gone through the written statement, no pleadings are found in the written statement . If

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M.A.C.A.No. 110 of 2015

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that be the position, the appellant has taken new contention in this appeal, which is against the pleadings and evidence. There is no merit in the above contention, and this appeal is dismissed.

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Sd/-

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P.D.RAJAN, nak JUDGE

National Insurance Company Ltd. v. Saraswathy.T.P

Case brief

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National Insurance Company Ltd. v. Saraswathy.T.P

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