Allowed

Saraswathi v. Kishore

Kerala HC4 Jun 2018MACA/3257/2017

Case brief

AI extract

What is this about?

This Motor Accident Claims Appeal concerns the award of compensation to dependents of a deceased scooter rider killed by a bus. The High Court set aside the Tribunal's award, recalculated loss of dependency based on the deceased's age and admitted income, and granted enhanced compensation after deducting specific conventional heads.

What did the court decide?

Appellants are entitled to enhanced compensation of Rs. 3,70,00/- with 9% interest; insurer directed to pay within 30 days with 12% interest on default.

Saraswathi Vs Kishore — 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 4TH DAY OF JUNE 2018 / 14TH JYAISHTA, 1940

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MACA.No. 3257 of 2017

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AGAINST THE AWARD IN OPMV 1729/2015 of PRL. M.A.C.T.,KOZHIKODE DATED 05-042017

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APPELLANTS/PETITIONER

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1 SARASWATHI AGED 50 YEARS, W/O. LATE VIJAYA KUMAR, "SREESADAN", KARATTU MEETHAL HOUSE, VELLIPARAMBA P.O., VELLIPARAMBA AMSOM DESOM, KOZHIKODE TALUK, PIN-673008. (WIFE OF THE DECEASED).

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2 VAISHNA VIJAYA KUMAR, AGED 24 YEARS, D/O. LATE VIJAYA KUMAR, "SREESADAN", KARATTU MEETHAL HOUSE, VELLIPARAMBA P.O., VELLIPARAMBA AMSOM DESOM, KOZHIKODE TALUK, PIN-673008.

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3 SARAN VIJAYA KUMAR, AGED 21 YEARS, S/O. LATE VIJAYA KUMAR, "SREESADAN", KARATTU MEETHAL HOUSE, VELLIPARAMBA P.O., VELLIPARAMBA AMSOM DESOM, KOZHIKODE TALUK, PIN-673008.

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BY ADV.SRI.K.SHIBILI NAHA

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RESPONDENTS/RESPONDENTS:

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1. KISHORE S/O. RATHNAN, AGED YEARS, 111, THANDAMADATHIL HOUSE, FEROKE P.O., KOZHIKODE, (R.C.OWNER OF THE BUS KL-11AC 189), PIN- 673001.

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2. MUHAMMED IRSHAD K.P., AGED 29 YEARS, S/O. MOIDEENKOYA K.P., AMBALAPURATH HOUSE, PANAYAMTHATTU, KOLATHARA P.O., KOZHIKODE. (DRIVER OF THE BUS KL-11AC 189), PIN- 673001..

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3. NEW INDIA INSURANCE COMPANY LTD., FAIR MOUNT BUILDING, ERANHIPALARA P.O., KOZHIKODE-673006. (POLICY N0. 76130031140100007558 VALID FROM 29.07.2014 TO 28.07.2015).

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R3 BY ADV. SRI.N.S.MOHAMMED USMAN BY SRI.A.A.ZIYAD RAHMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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BNG

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P.D.RAJAN, J

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- - - - - - - - - - - - - - - - - - - M.A.C.A No.3257 of 2017

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- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4^th day of June, 2018

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JUDGMENT

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This appeal is preferred against the award in O.P (MV) No.1729/2015 of the Principal Motor Accidents Claims Tribunal, Kozhikode by dependents of the deceased Vijaya Kumar. On 24.01.2015 at about 2.20 pm, while the deceased was riding a scooter KL-11-P-2412, another vehicle KL-11-AC-189 driven in a rash and negligent manner hit on the back side of the scooter, as a result the deceased fell down and sustained serious injuries. Subsequently, he succumbed to the injuries at Medical College Hospital, Kozhikode. The learned Tribunal awarded Rs.5,15,000/- as compensation to dependents. Being aggrieved by that, dependents preferred this appeal.

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There is no dispute with regard to the accident. The owner was set ex-parte and the driver of the vehicle contested the matter by filing a written statement. The insurer admitted the insurance of the vehicle, but he

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M.A.C.A No.3257 of 2017

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denied the accident. Even though he denied the accident, no evidence has been adduced by him to substantiate his contention in the written statement. The first claimant was examined as PW1 and her documents were marked as Exts.A1 to A19. Respondents did not adduce any evidence.

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The learned counsel appearing for appellants contended that the deceased was aged 59 years at the time of accident and was conducting a Parallel College namely PSPM at Thaliroor, Calicut for the last 35 years. He was also conducting a stationery shop at Peruvayal Grama Panchayat and was a licensee of Milma Food Products. Appellants produced certain documents to prove the income, but those documents were not considered by the Tribunal.

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The learned counsel appearing for respondents contended that very high amount was awarded for loss of estate, funeral expense and loss of consortium and just amount was awarded under the other heads.

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M.A.C.A No.3257 of 2017

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In fatal accident case, the measure of

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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 expectancy, the chances that the deceased might have got better job and earned more income etc also have to be considered by the tribunal.

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Apex court in National Insurance

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Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]

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held as follows:

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61. In view of the aforesaid analysis, we proceed to record our conclusions:-

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M.A.C.A No.3257 of 2017

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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 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

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M.A.C.A No.3257 of 2017

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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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The deceased was aged 59 years, which was admitted by the insurer. It is an admitted fact that the deceased was conducting a Parallel College and the income taken by the Tribunal was very low. In the lower court, appellants contended that the deceased was getting Rs.16,000/- per month, but no evidence has been adduced to prove the income. In the absence of specific income, it is difficult to take huge amount. In view of the decision of the apex court in Syed Sadiq and others v.

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Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735), it is just and reasonable, to take Rs.10,000/- as his monthly income and following amount is awarded towards loss of dependency, ie., Rs.10,000x12x9=Rs.10,80,000/-. There are three

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M.A.C.A No.3257 of 2017

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dependents, 1/3^rd is to be deducted and the balance amount is Rs.7,20,000/-. The learned Tribunal awarded Rs.2,70,000/-, the balance amount for loss of dependency is Rs.4,50,000/-. In view of Pranay Sethi's case (supra), Rs.10,000/- from funeral expense, Rs.10,000/- from loss of estate and Rs.60,000/- from loss of consortium have to be deducted. The balance is Rs.3,70,000/-. Hence, in addition to the award amount, Rs.3,70,000/- is awarded as enhanced compensation. Appellants are entitled to get enhanced compensation of Rs.3,70,000/- (Rupees Three Lakh Seventy Thousand only) with 9% interest and proportionate cost. The insurer is directed to satisfy the award amount 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 disposed of, accordingly.

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Sd/P.D.RAJAN JUDGE

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bng

Saraswathi v. Kishore

Case brief

What is this about?

What did the court decide?

Saraswathi v. Kishore

Case brief

What is this about?

What did the court decide?

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