Allowed

Eldhose C.Cherian v. Babu.K.

Kerala HC25 Jun 2018MACA/215/2016

Case brief

AI extract

What is this about?

The Karnataka High Court allowed an appeal against a Tribunal award in a motor accident claim. The court enhanced the compensation to ₹10,47,781 by correcting the income assessment and applying Supreme Court principles from Pranay Sethi and Dixit Kumar, directing enhanced conventional heads.

What did the court decide?

Compensation enhanced to ₹10,47,781 with 9% interest and proportionate cost; insurer directed to pay within 30 days or face 12% default interest.

Eldhose C.Cherian Vs Babu.K. — 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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MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940

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MACA.NO. 215 OF 2016

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AGAINST THE AWARD IN O.P.(M.V.) NO.618/2013 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 22-08-2015

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APPELLANT(S)/PETITIONERS :

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1 ELDHOSE C.CHERIAN,

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S/O.LATE CHERIAN @ ELIAS, CHOLLATTU HOUSE, THRIKKALATHOOR POST, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK.

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2 BASIL.C.CHERIAN

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S/O.LATE CHERIAN @ ELIAS, CHOLLATTU HOUSE, THRIKKALATHOOR POST, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK.

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BY ADVS.SRI.MATHEW JOHN (K)

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SRI.DOMSON J.VATTAKKUZHY

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RESPONDENT(S)/RESPONDENTS:

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1. BABU.K.,

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S/O.KEMPARAJU, HOUSE NO.20, HADONAHALLI POST, GANGASANDRA VILLAGE, DODDABALLAPURA TALUK, BENGALOORU DISTRICT, KARNATAKA STATE, 561208.

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2. C.C.RAVI,

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S/O.CHIKKAMARIYAPPAN, HOUSE NO.11, CHENNAPURA VILLAGE, HOSKOTE TALUK, BANGALORE, KARNATAKA-562114.

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3. IFFCO-TOKIO, GENERAL INSURANCE CO.LTD., CORPORATE OFFICE, 4TH & 5TH FLOOR, IFFCO TOWER, PLOT NO.3, SECSTOR-29, GURGAON, HARYANA-122001.

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R3 BY ADVS. SRI.MATHEWS JACOB (SR.)

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SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25-06-2018, 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.215 of 2016

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Dated this the 25^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.618 of 2013 of the Motor Accidents Claims

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Tribunal, Muvattupuzha by the dependants of the deceased Cherian. The learned Tribunal awarded compensation of Rs.9,37,545/- (Rupees Nine Lakh Thirty Seven Thousand Five Hundred and Forty Five only) with 9% interest and proportionate cost. Being aggrieved by that, the claimants preferred this appeal.

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Claimants case in the lower court was that on 20.04.2013, while the deceased was walking through the side of Muvattupuzha- Perumbavoor M.C. Road and when he reached at Trikkalathoor Sangamampadi, at that time a motorcycle KA-53/EA-4067 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. The driver and owner were ex parte. The insurer admitted the insurance

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M.A.C.A No.215 of 2016 2

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of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A11. Respondent did not adduce any oral or documentary evidence.

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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

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M.A.C.A No.215 of 2016 3

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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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Learned counsel appearing for the appellants

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contended that the deceased was a coolie and was getting Rs.15,000/- per month, but a meagre amount of Rs.5,000/- was taken by the Tribunal as his monthly income for calculating compensation. The dependants are entitled to get just amount as compensation.

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M.A.C.A No.215 of 2016 4

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Learned counsel appearing for the insurer contented that just amount was awarded by the Tribunal and no interference is necessary. Moreover, the learned Tribunal awarded an excess amount towards funeral expenses.

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Apex Court in Dixit Kumar and Ors. Vs.

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Om Prskash Goel [2017 ACJ 2057] held that, in the absence of any contra evidence, the income stated by the claimant has to be considered. Hence, in view of Dixit Kumar (Supra), I take Rs.6,000/- as his monthly income. The deceased was aged 58 years at the time of accident and the multiplier is 9. In view of Pranay Sethi (Supra) Rs.600/- (6000x10%) has to be added along with income and the income will be Rs.6,600/-. There are two dependants and 1/3^rd has to be deducted. Hence, the appellants are entitled to get Rs.4,75,200/(6600x12x9x2/3) towards loss of dependency. The learned Tribunal awarded Rs.3,59,964/- on that head and the balance is Rs.1,15,236/-. In View of Pranay Sethi (Supra) reasonable figures on conventional heads,

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M.A.C.A No.215 of 2016 5

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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 an amount of Rs.25,000/- towards Funeral Expenses and Rs.10,000/- towards Loss of Estate. Therefore, an amount of Rs.5,000/- has to be deducted. Accordingly, the appellants are entitled to get an enhanced compensation of Rs.1,10,236/- (115236-5000) (Rupees One Lakh Ten Thousand Two Hundred and Thirty Six only) with 9% interest and proportionate cost in addition to Rs.9,37,545/- (Rupees Nine Lakh Thirty Seven Thousand Five Hundred and Forty Five 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

Eldhose C.Cherian v. Babu.K.

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Eldhose C.Cherian v. Babu.K.

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