Partly allowed

Abdul Shukkur and Ors. v. T.K.Jayaprakashan & Another

Kerala HC1 Nov 2018MACA/483/2011

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded by the Motor Accidents Claims Tribunal for a death caused by a KSRTC bus accident. The Court applied guidelines from National Insurance Company to increase compensation based on the deceased's income, age, and multiplier, directing payment of the difference by the owner andRTC.

What did the court decide?

Respondents directed to pay additional compensation of Rs. 2,86,960 with 9% interest and costs within 30 days.

Abdul Shukkur and Ors. Vs T.K.Jayaprakashan & Another — 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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THURSDAY ,THE 01ST DAY OF NOVEMBER 2018 / 10TH KARTHIKA, 1940

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M.A.C.A.No. 483 of 2011

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AGAINST THE AWARD IN OPMV 1737/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 22-12-2010

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APPELLANTS/PETITIONERS:

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1 ABDUL SHUKKUR, S/O KASIMKUNJU VELLAKUZHATHU VEETIL, NEAR MANNENCHERY, AMBANAKULANGARA TEMPLE, KOMALAPURAM VILLAGE, ALAPPUZHA.

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2 NASIMA, W/O. ABDUL SHUKUR, MOTHER OF DESEASED,-DO-

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3 SHABINA, D/O. ABDUL SHUKUR, -DO-

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BY ADV. SRI.N.ASHOK KUMAR

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RESPONDENTS/RESPONDENTS:

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1 T.K.JAYAPRAKASHAN, THAKIDIVELIYIL, KODENTHURUTHY VILLAGE, CHERTHALA, EZHUPUNNA.P.O - 688 548.

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2 THE MANAGING DIRECTOR K.S.R.T.C, THIRUVANANTHAPURAM, PIN - 6895 001. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No. 483 of 2011 2

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JUDGMENT

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This appeal is preferred against the award in OP(MV) 1737 of 2007 of the Motor Accidents Claims Tribunal, Kottayam by the legal representatives of the deceased Showhith . On 14.4.2005, the deceased met with an accident and the learned Tribunal awarded Rs.2,80,787/with 7.5% interest and cost as compensation. Being aggrieved by that, they preferred this appeal.

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On 14.4.2005, at 12.30 pm, the deceased Showhith was travelling on a motor cycle No.KL4F15 as pillion rider through KottayamKumarakom road. When he reached at the place of occurrence, a K.S.R.T.C bus No.KL15/3037 driven in a rash and negligent manner hit against the motor cycle. As a result, he sustained serious injuries and while undergoing treatment, he succumbed to the injuries. The accident was due to the rash and negligent driving of the driver of KSRTC. The driver was ex parte. The owner filed a written statement. Claimant did not adduce any oral evidence, but their documents were marked as Exts.A1 to A11.

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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

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M.A.C.A.No. 483 of 2011 3

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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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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 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

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M.A.C.A.No. 483 of 2011 4

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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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(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 a salesman-cum-commission agent in a

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jewellery shop and was getting Rs.3,300/- per month. The Motor Accidents Claims Tribunal took only Rs.1500/- in the absence of any

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evidence. In view of Dixit Kumar and Ors. Vs. Om Prskash Goel

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M.A.C.A.No. 483 of 2011 5

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2017 ACJ 2057 his income is taken as 3300/-. The deceased was 23 years and the multiplier is 18. The total dependancy compensation is Rs.9,97,920/- (4620x12x18). The deceased was unmarried, 50% is to be deducted and the balance is Rs.4,98,960/-. The learned Tribunal awarded Rs.2,34,000/-, the balance amount is Rs.2,64,960/- (4,98,9602,34,000). In addition to that, Rs.12,000/- towards funeral expenses and additional Rs.10,000/- towards loss of estate are granted. The total enhancement compensation is Rs.2,86,960/ - (Rupees Two lakhs eighty six thousand nine hundred and sixty) in addition to the award amount. The owner of the vehicle, 2^nd respondent is directed to pay enhanced compensation of Rs.2,86,960/- with 9% interest and cost, in addition to the award 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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SD/-

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P.D.RAJAN JUDGE

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ACM / 5.11.2018

Abdul Shukkur and Ors. v. T.K.Jayaprakashan & Another

Case brief

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Abdul Shukkur and Ors. v. T.K.Jayaprakashan & Another

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