Remanded

Babu v. Jalayakshmi Rajagopal

Kerala HC21 Dec 2018MACA/2379/2017

Case brief

AI extract

What is this about?

The High Court preferred two motor accident claims appeals. In one, compensation was directed for remittal to assess disputed vehicle ownership. In the other, raises regarding enhanced compensation were noted based on Supreme Court guidelines.

What did the court decide?

The award in the owner's appeal was set aside and the matter remitted to the Tribunal for fresh evidence on ownership; other appeal disposed of.

Babu Vs Jalayakshmi Rajagopal — 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 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940

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MACA.No.1472 of 2017

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AGAINST THE AWARD IN OPMV 1283/2014 of MACT, IRINJALAKUDA DATED 23-02-2017

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APPELLANT/1ST RESPONDENT:

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JAYALAKSHMI RAJAGOPAL W/O. RAJAGOPAL CHOPULLY HOUSE, IRINJALAKKUDA P.O, THRISSUR DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER RAJASEKARAN S/O. BHANUMATHI AMMA, CHOPPULLY HOUSE, PERINJANAM DESOM, KODUNGALLUR TALUK, TRISSUR DISTRICT.

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BY ADV. SRI.T.N.MANOJ

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RESPONDENTS/PETITIONERS AND 2ND RESPONDENT:

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1 BABU S/O. THOMAS, PULICKAN HOUSE, PRIYADARSHINI HALL ROAD, IRINJALAKUDA DESOM AND VILLAGE, THRISSUR DISTRICT - 680121.

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2 NIMINI W/O. BABU, DO .. DO.. DO..

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3 JACOB BABU S/O. BABU, DO.. DO.. DO..

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4 KIAN N.S S/O. SIVADASAN, NADUPARAMBIL HOUSE, THELAPPILLY DESOM, PORATHISSERY VILLAGE, KARUVANNOOR P.O THRISSUR DISTRICT - 680301.

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BY ADV. SRI.A.N.SANTHOSH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2018, ALONG WITH MACA.2379/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.Nos.1472 & 2379 of 2017

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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 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940

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MACA.No. 2379 of 2017

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AGAINST THE AWARD IN OPMV 1283/2014 of MACT, IRINJALAKUDA DATED 23-02-2017

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APPELLANTS/PETITIONERS:

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1 BABU S/O.THOMAS, PULICKAN HOUSE,PRIYADARSHINI HALL ROAD,IRINJALAKUDA DESOM, VILLAGE & P.O.,MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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2 NIMINI

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W/O.BABU,PULICKAN HOUSE,PRIYADARSHINI HALL ROAD,IRINJALAKUDA DESOM, VILLAGE & P.O.,MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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3 JACOB BABU

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S/O.BABU,PULICKAN HOUSE,PRIYADARSHINI HALL ROAD,IRINJALAKUDA DESOM, VILLAGE & P.O.,MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH

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RESPONDENTS/RESPONDENTS:

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1 JALAYAKSHMI RAJAGOPAL W/O.RAJAGOPAL,CHOPPULLY HOUSE,IRINJALAKUDA P.O., THRISSUR - 680 121.

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2 KIRAN N.S., S/O.SIVADASAN N.N.,NADUPARAMBIL HOUSE,THELAPPILLY DESOM,PORATHISSERY VILLAGE, KARUVANNUR P.O.,THRISSUR DISTRICT - 680 711.

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BY ADV. SRI.T.N.MANOJ

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2018, ALONG WITH MACA.1472/2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.Nos.1472 & 2379 of 2017

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JUDGMENT

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These appeals are preferred against the award in OP(MV) No.1283/2014 of the Motor Accidents Claims Tribunal, Irinjalakuda. One Thomas Babu sustained injuries in a motor accident while riding a motor cycle and he succumbed to injuries while undergoing treatment. The Motor Accident Claims Tribunal awarded compensation of Rs.32,40,000/- with 9% interest and proportionate cost to the legal representation of the deceased and directed the owner and driver to satisfy the award. Being aggrieved by that, the owner of the offending vehicle preferred M.A.C.A No.1472/2017 and the legal representatives of the deceased preferred M.A.C.A No.2379/2017.

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It would be relevant and useful to refer the facts leading to the accident highlighted in the lower court by the claimants. The case is that on 13.09.2014 at 2.00 pm, the deceased was riding a motor cycle KL-45-K-1543 through the Irinjalakuda - Tana public road at that time an autorickshaw KL-45-J-7075 driven in a rash and negligent manner hit against the motor cycle, as a result the deceased was thrown

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MACA.Nos.1472 & 2379 of 2017

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away and sustained serious injuries. While undergoing treatment at Co-operative Hospital, Irinjalakuda, he succumbed to the injuries.

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The first respondent filed a written statement and disputed the accident and the amount claimed by the legal representatives. She contended that on 20.07.2014 she sold the vehicle to Mr. Nidhin, S/o.Thilakan, Adiparambil House, Arippalam, Poomangalam and he is the RC owner of the offending vehicle. He was not made as a party, therefore, the first respondent is not liable to pay compensation to the claimants. The second respondent also filed a written statement and disputed the accident. The claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A18. A copy of the RC was marked as Ext.B1.

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The learned counsel, Adv. T.N Manoj, appearing for the appellant in M.A.C.A No.1472/2017 contended that the original owner of the vehicle is a necessary party, which was not considered by the learned Tribunal. The name and address of the owner of the vehicle was specifically mentioned in the additional written statement and he is a necessary party for imposing liability on the owner of the vehicle.

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MACA.Nos.1472 & 2379 of 2017

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The learned counsel, Adv. A.N. Santhosh, who

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is appearing for the respondents 1 to 3, contended that they have filed M.A.C.A No.2379/2017 for enhanced amount of compensation against the award amount. The learned counsel contended that the deceased was a Post Graduate Decree holder in M.Tech in Geology and was working as Geologist and just amount was not awarded to the legal representatives of the deceased. Hence, they are entitled to get just amount as compensation.

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In death cases, 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 not live up to the estimated remaining period of their life

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MACA.Nos.1472 & 2379 of 2017

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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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Apex court in National Insurance Company

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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 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

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MACA.Nos.1472 & 2379 of 2017

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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 this context, it is better to examine the

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documents submitted by the claimants in the lower court. Ext.A12 certificate shows that he had obtained a Bachelor degree in Geology. Ext.A13 is his Masters Degree certificate in Applied Geology. Ext.A14 is the mark list of deceased in M.Tech. Ext.A15 certificate shows that deceased was one among the students shortlisted for attending SPG Job fair at Hyderabad. Ext.A16 is the certificate issued to the deceased

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MACA.Nos.1472 & 2379 of 2017

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for the participation in National Seminar in Petro fest 2010. Ext.A17 salary certificate should show that the deceased was receiving a consolidated sum of Rs.30,000/- as consultant geologist. Ext.A18 TDS certificate for the year 2014-2015 shows that sum of Rs.16,400/- was deducted towards TDS from 31.10.2013 to 31.03.2014. The total payment during this period is Rs.1,64,000/-. From the said certificate, it is also seen that from the period 30-4-2013 to 31-5-2013 a sum of Rs.3,177/- was deducted as TDS. From Ext.A18 it is also come out that TDS was deducted by Ajapa Integrated Project Management Consultants Pvt. Ltd. from 31-10-2013 to 31-32014, while TDS from 30-4-2013 to 31-5-2013 was deducted by RMSI Pvt. Ltd. Ext.A18 would prove that deceased was getting Rs.30,000/- per month at the time of his death. The learned Tribunal took Rs.20,000/- as the monthly income of the deceased who was a bachelor. In view of Pranay Sethi 's case (supra), 40% has to be added towards future prospects. The deceased is survived by the parents and young brother. Therefore, they are entitled to get just amount as compensation. The claimants have to prove the income in the lower court and if that income is proved there, they are

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MACA.Nos.1472 & 2379 of 2017

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entitled to get just amount as compensation.

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There is no insurance to the offending vehicle,

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therefore, the owner of the vehicle is liable to pay the compensation. The fourth respondent in the appeal M.A.C.A No.1472/2017 was the driver of the vehicle. It is pertinent to note that the above appellant took a contention in the lower court that one Nidhin is the owner of the vehicle and no opportunity was given to the appellant to prove the ownership of the autorickshaw. As per Ext.B1, it is found that Nidhin is the owner of the vehicle. The learned counsel appearing for respondents in the above appeal contended that the above transfer is a fraudulent one and the original owner is the appellant. Corroborative evidence is necessary to prove the facts alleged by both parties. If that be the position, the appellant in M.A.C.A No.1472/2017 is entitled to get an opportunity to prove his case. In the circumstances, the award passed by the Tribunal is hereby set aside and the case is remitted to lower court for fresh consideration. The appellant and respondents are directed to appear before the Tribunal on 14.02.2019. On such appearance, the Tribunal shall give an opportunity to both parties to adduce evidence and dispose

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MACA.Nos.1472 & 2379 of 2017

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the matters as per law.

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Hence, M.A.C.A No.1472/2017 and M.A.C.A

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No.2379/2017 are disposed of, as above.

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Sd/- P.D.RAJAN JUDGE

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bng/22.12.2018

Babu v. Jalayakshmi Rajagopal

Case brief

What is this about?

What did the court decide?

Babu v. Jalayakshmi Rajagopal

Case brief

What is this about?

What did the court decide?

What the court decided

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