Partly allowed

The National Insurance Co. Ltd. v. T.K.Vijayan

Kerala HC26 Jun 2018MACA/1229/2017

Case brief

AI extract

What is this about?

The High Court allowed the Motor Accident Claims Appeal filed by the insurer against the Tribunal's award. Applying the guidelines in National Insurance Company v. Pranay Sethi, the Court modified the total compensation to Rs. 16,79,800/- by recalculating dependency, funeral expense, loss of estate, and loss of consortium, directing payment with 9% interest.

What did the court decide?

Award modified from Rs. 17,34,300/- to Rs. 16,79,800/-; insurer directed to pay with 9% interest from date of petition within 30 days.

The National Insurance Co. Ltd. Vs T.K.Vijayan — Insurance | 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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TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940

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MACA.No. 1229 of 2017

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OP(MV) NO. 1229/2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA

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APPELLANT/3R RESPONDENT.

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THE NATIONAL INSURANCE CO. LTD. KAYAMKULAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI - 35.

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BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN

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RESPONDENTS/CLAIMANTS:

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1. T.K.VIJAYAN,

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S/O.KRISHNAN, VINU BHAVANAM, IKKADU, KODUMON.P.O., PATHANAMTHITTA, PIN 691555.

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2. VINU.V. S/O.VIJAYAN, VINU BHAVANAM, IKKADU,

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KODUMON.P.O., PATHANAMTHITTA, PIN 691555.

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3. VIJI.N., W/O.BINUKUMAR, MANDARATHIL, CHAYALODU P.O., EZHAMKULAM, PIN 691556.

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4. GOURI, W/O.RAMAKRISHNAN, PUTHUPARAMBIL, KOKKATHODU P.O., KONNI, PIN 689691.

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R1 TO R4 BY ADV. SRI.A.N.SANTHOSH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D.RAJAN, J

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- - - - - - - - - - - - - - - - - - - M.A.C.A No.1229 of 2017

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- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26^th day of June, 2018

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JUDGMENT

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This appeal is preferred against the award in OP(MV) No.1229/2014 of the Motor Accidents Claims Tribunal, Pathanamthitta by the insurer. On 04.06.2014, the deceased Vijayamma was a pillion rider in a scooter KL-26-B-8027 from Chakkalamukku to Kodumon, when she reached at the place of occurrence the vehicle capsized and Vijayamma sustained serious injuries, while undergoing treatment she succumbed to the injuries. The learned Tribunal awarded Rs.17,34,300/- as compensation. Being aggrieved by that amount, the insurer preferred this appeal.

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There was no dispute with regard to the accident in the lower court by respondents. The insurer admitted the insurance of the vehicle. The driver and owner of the vehicle were set ex-parte. Claimants are the legal heirs and dependents of the deceased. They produced Exts.A1 to A9 as their documentary evidence.

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M.A.C.A No.1229 of 2017

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The learned counsel appearing for the

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insurer contended that the deceased was a tailor by profession and the learned Tribunal took Rs.10,000/- for calculating dependency compensation, along with that 50% was added towards future prospects and excess amount was awarded towards funeral expense, loss of consortium and love and affection.

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Apex court in National Insurance

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Company V. 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

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M.A.C.A No.1229 of 2017

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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 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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In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be

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M.A.C.A No.1229 of 2017

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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 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.

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It is admitted by both parties that the deceased was a tailor by profession. Considering the nature of work, the Tribunal took Rs.10,000/- as her monthly income, but claimants demanded Rs.15,000/- per month and monthly contribution was Rs.12,000/-. After considering the pleadings, the learned Tribunal took

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M.A.C.A No.1229 of 2017

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Rs.10,000/-, I think it is just and reasonable considering the present increase in price index and standard of living. In view of Pranay Sethi' case (supra), dependents are entitled to get 10% increase towards future prospects. If that be the position, the multiplicand will be Rs.11,000/-. The total dependency compensation is Rs.11,000x12x11x3/4= Rs.10,89,000/-. The learned Tribunal awarded Rs.11,38,500/-. Hence, Rs.49,500/- has to be deducted from dependency compensation.

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Apex court in Pranay Sethi (Supra) held that claimants are entitled to get Rs.15,000/- towards funeral expense, Rs.15,000/- towards loss of estate and Rs.40,000/- towards loss of consortium and no amount was fixed for love and affection. In the circumstance, Rs.10,000/- from funeral expense and Rs.10,000/- from loss of consortium have to be deducted. No amount was awarded for loss of estate, hence Rs.15,000/- is awarded towards loss of estate. Therefore, Rs.54,500/(Rs.49,500+500) has to be deducted from the total award amount. So, the dependents are entitled to get

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M.A.C.A No.1229 of 2017

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Rs.16,79,800/- (Rs.17,34,300-54,500) only. Hence, the award of Rs.17,34,300/- is modified to Rs.16,79,800/- as compensation. The insurer is directed to satisfy the modified compensation of Rs.16,79,800/- (Rupees Sixteen Lakh Seventy Nine Thousand and Eight Hundred only) with 9% interest from the date of petition till realisation with 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.

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This appeal is partly allowed.

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Sd/- P.D.RAJAN

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JUDGE

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bng

The National Insurance Co. Ltd. v. T.K.Vijayan

Case brief

What is this about?

What did the court decide?

The National Insurance Co. Ltd. v. T.K.Vijayan

Case brief

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What did the court decide?

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