Remanded

Cholamandalam Ms General Insurance Company Limited v. Hamsa v

Kerala HC4 Dec 2018MACA/3469/2015

Case brief

AI extract

What is this about?

Insurance company appealed against Motor Accidents Claims Tribunal award in fatal accident. Held Tribunal failed to consider future prospects and non-pecuniary losses correctly. Award set aside and matter remitted for fresh consideration.

What did the court decide?

Award remitted to lower court for fresh consideration; parties directed to appear; liberty to adduce fresh evidence.

Cholamandalam Ms General Insurance Company Limited Vs… — 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 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940

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MACA.No. 3469 of 2015

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AGAINST THE AWARD IN OPMV 1789/2014 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 11-09-2015

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APPELLANT/3RD RESPONDENT:

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CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED KOZHIKODE NOW REPRESENTED BY ITS DEPUTY MANAGER CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI II

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BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENTS/RESPONDENTS:

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1 HAMSA V

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VALIYATTIL HOUSE, POKKUNNU PO, KINASSERY, KOZHIKODE, PIN 673320

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2 SUHARABI W/O. HAMSA, VALIYATTIL HOUSE, POKKUNNU PO, KINASSERY, KOZHIKODE, PIN 673320

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3 HAFSATH W/O.LATE JAMSHEER, VALIYATTIL HOUSE, POKKUNNU PO, KINASSERY, KOZHIKODE, PIN 673320

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4 ADINAN JAMSHEER (MINOR) S/O.LATE JAMSHEER, VALIYATTIL HOUSE, POKKUNNU PO, KINASSERY, KOZHIKODE, PIN 673320

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5 HANNA FATHIMA (MINOR) D/O.LATE JAMSHEER, VALIYATTIL HOUSE, POKKUNNU PO, KINASSERY, KOZHIKODE, PIN 673320

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BY ADV. SRI.O.D.SIVADAS

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 3469 of 2015

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JUDGMENT

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This appeal is preferred against the award in OP(MV) No.1789/2014 of Principal Motor Accidents Claims Tribunal, Kozhikode by the insurer of the offending vehicle. On 23.08.2014 at 3.30 pm, the deceased Jamsheer was driving a goods autorickshaw from Kozhikode to Adivaram, when he reached at the place of occurrence, a mini lorry KL-58-B-1527 driven in a rash and negligent manner hit against the autorickshaw. As a result, he sustained serious injuries. While undergoing treatment, he succumbed to the injuries. The learned Tribunal awarded compensation of Rs.26,15,000/- with 9% interest and proportionate cost. Being aggrieved by that, the insurer preferred this appeal.

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The accident was not disputed by the driver and owner in the lower court. They were set ex-parte. The insurer admitted the insurance of the vehicle. Claimants are legal representatives of the deceased and they did not adduce any oral evidence, but their documents were marked as Exts.A1 to A10.

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MACA.No. 3469 of 2015

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The learned counsel appearing for the

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appellant contended that huge amount was awarded towards loss of love and affection, pain and suffering and mental agony. Hence, the excess amount awarded by the Tribunal has to be reduced.

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In fatal accident case, 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 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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MACA.No. 3469 of 2015

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5. 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 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

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MACA.No. 3469 of 2015

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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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Claimants in the lower court stated that the

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deceased was getting Rs.26,000/- per month as a driver, but no evidence has been adduced in the lower court to prove the income. In the absence of such evidence regarding income, the learned Tribunal took Rs.10,000/- per month for calculating dependency compensation. The multiplier of 17 was also taken. The insurer has no dispute with regard to the above points. A perusal of the judgment shows that future prospects as stated in Pranay Sethi's case (supra) was not considered in this matter. Moreover, compensation towards pain and suffering, mental agony, loss of consortium and love and

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MACA.No. 3469 of 2015

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affection were not properly considered by the Tribunal. In the circumstance, the award of the Tribunal is hereby set aside and the matter is remitted to lower court for fresh consideration. The amount, if any, paid by the insurer in the lower court shall be adjusted towards final compensation. Both parties are directed to appear before the Tribunal on 15.01.2019. Both parties are at liberty to adduce fresh evidence with respect of their contention.

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Sd/-

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P.D.RAJAN JUDGE

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bng/11.12.18

Cholamandalam Ms General Insurance Company Limited v. Hamsa v

Case brief

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Cholamandalam Ms General Insurance Company Limited v. Hamsa v

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