Allowed

Subhalaja v. S.Najim

Kerala HC25 Jun 2018MACA/2175/2012

Case brief

AI extract

What is this about?

The High Court enhanced the motor accident compensation awarded by the Tribunal. It applied the National Insurance Company v. Pranay Sethi guidelines to increase the multiplicand by 40% for future prospects and adjusted conventional heads, directing the insurer to pay the enhanced amount. The coal case was not mentioned in the text, so 'other' is used for the third subject.

What did the court decide?

Enhanced compensation of Rs. 2,99,000 with 7.5% interest and costs awarded; insurer directed to pay within thirty days with 12% default interest.

Subhalaja Vs S.Najim — 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. 2175 OF 2012

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AGAINST THE AWARD IN O.P.(M.V.) NO.1294/2009 OF THE FIRST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM DATED 18-05-2012

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APPELLANT(S)/CLAIMANTS :

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1 SUBHALAJA, AGED 37 YEARS,

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W/O.SURESHKUMAR, KUTTIKKATTUKIZHAKKATHIL,

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PUNUKKANNUR, MUNDAKKAL, PERUMPUZHA P.O., KOLLAM.

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2 ADARSH, AGED 12 YEARS,

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S/O.SURESH KUMAR, DO. DO.

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(R2 MINOR. 1^ST RESPONDENT MOTHER IS REPRESENTED BY THE 2^ND RESPONDENT)

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BY ADVS.SRI.V.JAYAPRADEEP

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SMT.M.HEMALATHA

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SMT.V.V.RISANI

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RESPONDENT(S)/RESPONDENTS:

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1. S.NAJIM,

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S/O.SHAHUL HAMEED, ANCHUVILA KIZHAKKATHIL, NORTH MYNAGAPPALLY, KARUNAGAPPALLY, KOLLAM.

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2. SHIHAB P.S.,

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S/O.SHARAFUDEEN, KADOONKAL PUTHEN VEEDU,

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PULIYOOR VANCHI SOUTH,

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EDAKULANGARA, KARUNAGAPPALLY.

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3. THE MANAGER,

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ORIENTAL INSURANCE CO.LTD., AMARJYOTHI COMPLEX,

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KADAPPAKKADA, KOLLAM.

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R3 BY ADV. SRI.A.R.GEORGE

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BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)

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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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-----------------------M.A.C.A No.2175 of 2012

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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.1294 of 2009 of the 1^st Additional Motor Accidents Claims Tribunal, Kollam by dependants of the deceased Suresh Kumar. The learned Tribunal awarded compensation of Rs.6,85,000/- (Rupees Six Lakhs Eighty Five Thousand only) with 7.5% 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 26.09.2009 at 12.15 p.m., while the deceased was standing near his auto rickshaw on the side of Kannanalloor-Kundara public road at that time, a lorry KL-2/U-7461 driven in a rash and negligent manner hit against the deceased and his auto rickshaw as a result, he sustained serious injuries and while undergoing treatment at District Hospital, Kollam, he succumbed to the injuries on the same day. The driver and owner of the

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M.A.C.A No.2175 of 2012 2

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lorry were ex parte and the insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A16.

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Learned counsel appearing for the appellant contended that the deceased was an auto driver at the time of accident and was getting Rs.7,000/- per month. He had two auto rickshaws, one of the auto rickshaw was driven by him and the other vehicle was driven by a paid driver and thereby he was getting a substantial income. Even then, the Tribunal took Rs.5,000/- as his monthly income for calculating dependency compensation.

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Learned counsel appearing for the insurer contended that just amount was awarded and no interference is necessary.

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Apex Court in National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)] 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

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M.A.C.A No.2175 of 2012 3

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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 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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M.A.C.A No.2175 of 2012 4

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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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It is true that the dependants of the deceased

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are entitled to get just amount as compensation. Even though, the appellants contended that the deceased was getting Rs.7,000/- per month, no evidence has been adduced by them to prove the income. They produced Ext.A5, A6 and A7 A.M.V.I. Reports to prove the damages to the vehicle. RC particulars of the above two vehicles

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were not furnished, in the circumstance, the learned Tribunal rightly took Rs.5,000/- as his monthly income. In view of Pranay Sethi (Supra) the appellant is entitled to get 40% (5,000x40%=2000) of increase in the income considering his future prospects. Then, the multiplicand will be Rs.7,000/- (5000+2000). The deceased was aged 34 years and the multiplier is 16. There are two dependants hence, 1/3^rd has to be deducted. Accordingly, the appellants are entitled to get Rs.8,96,000/-

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M.A.C.A No.2175 of 2012 5

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(7000x12x16x2/3) towards Loss of dependancy. The Tribunal awarded Rs.6,40,000/- on that head and the balance is Rs.2,56,000/-.

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In view of 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. It reads as follows:

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In this case, the learned Tribunal awarded Rs.7,000/- for Funeral Expenses, Rs.5,000/- for Loss of Estate and Rs.15,000/- for Loss of Consortium. Hence, an additional amount of Rs.8,000/- is awarded for Funeral Expenses, Rs.10,000/- towards Loss of Estate and Rs.25,000/- is awarded for Loss of consortium. The total enhanced compensation comes to Rs.2,99,000/- (Rupees Two Lakhs Ninety Nine Thousand only). Accordingly, the appellants are entitled to get an enhanced compensation of

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M.A.C.A No.2175 of 2012 6

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Rs.2,99,000/- (Rupees Two Lakhs Ninety Nine Thousand only) with 7.5% interest and proportionate cost in addition to Rs.6,85,000/- (Rupees Six Lakhs Eighty Five 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

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Subhalaja v. S.Najim

Case brief

What is this about?

What did the court decide?

Subhalaja v. S.Najim

Case brief

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What did the court decide?

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