Allowed

Kadar Banu v. the United India Insurance Company Ltd.

Kerala HC26 Jun 2018MACA/1559/2018

Case brief

AI extract

What is this about?

Appeal against Motor Accidents Claims Tribunal award. Court enhanced compensation to Rs.19,01,000 based on Supreme Court guidelines from National Insurance Company v. Pranay Sethi and Dixit Kumar, adjusting income and conventional heads.

What did the court decide?

Award enhanced by Rs.3,20,000/- to total Rs.19,01,000/- with 9% interest; insurer directed to pay within 30 days or face 12% penalty.

Kadar Banu Vs the United India Insurance Company Ltd. — 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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TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940

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MACA.NO. 1559 OF 2018

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AGAINST THE AWARD IN O.P.(M.V.)NO.7/2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 31-03-2017

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APPELLANT(S)/PETITIONERS :

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1 KADAR BANU, W/O. LATE RAISUDDIN BARA, BONPUR, UTTARPARA, PIPLON GRAM PANCHAYATH P.O., PIPLON, MANTESWAR, BURDWAN DISTRICT.

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2 KASHMIRA BARA,MINOR,AGED 10 YEARS, D/O. LATE RAISUDDIN BARA, BONPUR, UTTARPARA, PIPLON GRAM PANCHAYATH P.O, PIPLON, MANTESWAR, BURDWAN DISTRICT.

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3 ARJU BARA, MINOR, AGED 6 YEARS, S/O. LATE RAISUDDIN BARA, BONPUR, UTTARPARA, PIPLON GRAM PANCHAYATH P.O, PIPLON, MANTESWAR, BURDWAN DISTRICT. APPELLANTS 2 AND 3 REPRESENTED BY NATURAL GUARDIAN MOTHER 1ST APPELLANT.

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4 HASENARA BIBI BARA, W/O. MECHAR UDDIN BARA, BONPUR, UTTARPARA, PIPLON GRAM PANCHAYATH P.O, PIPLON, MANTESWAR, BURDWAN DISTRICT.

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5 MECHAR UDDIN BARA, BONPUR, UTTARPARA, PIPLON GRAM PANCHAYATH P.O., PIPLON, MANTESWAR, BURDWAN DISTRICT.

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BY ADV.SRI.A.N.SANTHOSH

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RESPONDENT(S)/3^RD RESPONDENT : ----------------------------

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THE UNITED INDIA INSURANCE COMPANY LTD., SREEKUMAR BUILDING, SOUTH JUNCTION, CHALAKUDY-680 307. REP. BY ITS BRANCH MANAGER.

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BY SRI.JOHN JOSEPH VETTIKAD

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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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------------------------

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M.A.C.A No.1559 of 2018

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Dated this the 26^th day of June, 2018

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J U D G M E N T

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This appeal is preferred against the award in O.P.(M.V.) No.7 of 2014 of the Motor Accidents Claims Tribunal, Irinjalakuda by the dependants of the deceased Raisuddin Bara. Appellants case in the lower court was that, on 10.06.2013 at 7.30 p.m., while the deceased was walking through the western side of the Kodakara-Aloor road, a motorcycle KL-8/AA-7419 driven in a rash and negligent manner knocked down the deceased, as a result he sustained serious injuries and while undergoing treatment, he succumbed to the injuries on 12.06.2013. The learned Tribunal awarded compensation of Rs.15,81,000/- (Rupees Fifteen Lakhs Eighty One Thousand only) with 9% interest and proportionate cost. Being aggrieved by that, the dependants of the deceased preferred this appeal.

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In the lower court, the driver and owner of

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the vehicle were ex parte. The insurer admitted the

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M.A.C.A No.1559 of 2018 2

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insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A6.

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Apex Court in National Insurance

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Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]

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held as follows:

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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

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M.A.C.A No.1559 of 2018 3

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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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Learned counsel appearing for the appellant contended that the deceased was a construction worker and was getting Rs.15,000/- per month, but the learned Tribunal took Rs.6,000/- as the monthly income and 50% of the monthly income was added towards future prospects, which is very meagre.

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Apex Court in Dixit Kumar and Ors. Vs.

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M.A.C.A No.1559 of 2018 4

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Om Prskash Goel [2017 ACJ 2057] held that, just amount has to be taken as monthly income while awarding compensation. Considering the standard of living and price index, I fix his monthly income as Rs.7,500/-. If 40% of the monthly income is added towards future prospects in view of Pranay Sethi (Supra), then the total monthly income comes to Rs.10,500/-. The deceased was aged 24 years at the time of accident and the multiplier is 18. There are five dependants hence 1/4^th has to be deducted. Therefore, the appellants are entitled to get a total dependency compensation of Rs.17,01,000/- (10500x12x18x3/4). The learned Tribunal awarded Rs.12,96,000/- on that head, the balance is Rs.4,05,000/-.

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In view of the decision in Pranay Sethi (Supra), 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. In this case, the learned Tribunal awarded Rs.25,000/- for Funeral expenses,

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M.A.C.A No.1559 of 2018 5

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Rs.30,000/- for Loss of Estate and Rs.1,00,000/- for Loss of Consortium. Hence an amount of Rs.10,000/- from Funeral expenses, Rs.15,000/- from Loss of estate and Rs.60,000/- from Loss of consortium (total Rs.85,000/-) have to be deducted from the award amount. The balance is Rs.3,20,000/- (4,05,000-85,000). Accordingly, the appellants are entitled to get an enhanced compensation of Rs.3,20,000/- (4,05,000-85,000) (Rupees Three Lakh Twenty Thousand only) with 9% interest and proportionate cost in addition to Rs.15,81,000/- (Rupees Fifteen Lakhs Eighty One Thousand only) awarded by the learned Tribunal. The insurer is directed to 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.

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M.A.C.A is disposed of as above.

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Sd/- P.D. RAJAN, JUDGE

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/True Copy/

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P.A. To Judge

Kadar Banu v. the United India Insurance Company Ltd.

Case brief

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Kadar Banu v. the United India Insurance Company Ltd.

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