Allowed

Krishnakumari.E.and Others v. T.R.Balakrishnan and Others

Kerala HC18 Jun 2018MACA/668/2009

Case brief

AI extract

What is this about?

The Kerala High Court enhanced death compensation to Rs. 8,27,000 plus interest. The court fixed monthly income at Rs. 14,000 (after adding 40% to base Rs. 10,000) for a 22-year-old house surgeon. It awarded Rs. 25,000 for loss of estate and funeral expenses against the insurer.

What did the court decide?

Total compensation enhanced to Rs. 8,27,000 plus 9% interest from date of award; insurer directed to pay within 30 days.

Krishnakumari.E.and Others Vs T.R.Balakrishnan and Others — 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 18TH DAY OF JUNE 2018 / 28TH JYAISHTA, 1940

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MACA.No. 668 of 2009

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AGAINST THE AWARD IN OPMV 2891/2002 of MACT,THRISSUR DATED 02-03-2006

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APPELLANTS/PETITIONERS

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1 KRISHNAKUMARI.E.,WIDOW OF GOVINDA WARRIER

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2 ARUN G, S/O.LATE GOVINDA WARRIER

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3 ASHA.G., D/O.LATE GOVINDA WARRIER .

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ALL ARE RESIDING AT EDAKKUNNI WARRIAM, P.O., PAZHUVIL, THRISSUR DISTRICT

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BY ADVS SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP

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RESPONDENTS/RESPONDENTS:

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1. T.R.BALAKRISHNAN, RESIDING AT THAZATH HOUSE, P.O.PURANATTUKARA, THRISSUR DISTRICT.

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2. MANOJ T.R, S/O.RAMAKRISHNAN, RESIDING AT THAZATH HOUSE, P.O.PURANATTUKARA, THRISSUR DISTRICT.

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3. THE NATIONAL INSURANCE COMPANY LIMITED, AMBIKA ARCADE, THRISSUR.

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R3 BY ADV. SRI.JOE KALLIATH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2018, 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.668 of 2009

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- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18^th day of June, 2018

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JUDGMENT

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This appeal is preferred against the award in OP(MV) No.2891/2002 of the Motor Accidents Claims Tribunal, Thrissur by the dependents of the deceased Dr.Anoop. On 16.08.2002 at 7.15 am, an MBBS Doctor, who was doing house surgency, sustained serious injuries in a motor accident, while he was riding a motor cycle along Pazhuvil to Thrissur public road, as a result the deceased sustained serious head injuries, while undergoing treatment he succumbed to the injuries at Medical College Hospital, Thrissur. The learned Tribunal awarded Rs.7,52,000/- with 7% interest and proportionate cost. Being aggrieved by that, dependents and legal representatives preferred this appeal.

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In the lower court the driver and owner were set ex-parte. The insurer admitted the insurance of the offending vehicle KL 8A/414 bus. Claimants evidence consist of oral testimony of PW1 and Exts. A1 to A14.

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M.A.C.A No.668 of 2009

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Respondents did not adduce any evidence.

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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 also have to be considered by the tribunal.

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Apex court in National Insurance

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M.A.C.A No.668 of 2009

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

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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. (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

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M.A.C.A No.668 of 2009

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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 doing house surgency after his MBBS degree, which was not disputed by the insurer. The learned Tribunal took Rs.5,000/- as his monthly income, since he was doing house surgency and was getting stipend. Dependents claimed Rs.10,000/- as his monthly income for calculating compensation. In view of V. Mekala

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v. M.Malathi and another (2014 (11) SCC 178) Apex

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court fixed Rs.10,000/- as the monthly income to a victim, who is a brilliant student holding the first rank in the school.

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M.A.C.A No.668 of 2009

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If that be the position, Rs.10,000/- is just and reasonable income claimed by dependents which is fixed as the monthly income. In view of Pranay Sethi (Supra), 40% has to be added along with the income considering the future prospects. If that be the position, the total income will be Rs.14,000/- per month. The deceased was aged 22 years and the multiplier is 18. The deceased was a bachelor, half is to be deducted from the total compensation. Therefore total dependency compensation to a bachelor is Rs.7000x12x18 =Rs.15,12,000/-. The learned Tribunal awarded Rs.6,60,000/for dependency compensation. The balance is Rs.8,52,000/-. In view of Pranay Sethi (Supra), dependents are entitled to get Rs.15,000/- for loss of estate and funeral expense. The learned Tribunal awarded Rs.5,000/- towards funeral expenses and Rs.50,000/- towards loss of estate. Hence, additional Rs.10,000/- towards funeral expense is awarded and Rs.35,000/- has to be deducted from the loss of estate. In short Rs.25,000/- has to be deducted from the total

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M.A.C.A No.668 of 2009

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compensation. After deducting Rs.25,000/- from the total, the balance amount is Rs.8,27,000/-. Just amount was awarded towards other heads. In addition to the award amount, dependents are entitled to get additional compensation of Rs.8,27,000/- (Rupees Eight Lakh Twenty Seven Thousand only) with 9% interest from the date of award with proportionate cost. The insurer is directed to satisfy 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. There is delay of 848 days in filing the appeal and the appellants are not entitled to get interest for that period.

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This appeal is disposed of, accordingly.

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Sd/- P.D.RAJAN

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bng

Krishnakumari.E.and Others v. T.R.Balakrishnan and Others

Case brief

What is this about?

What did the court decide?

Krishnakumari.E.and Others v. T.R.Balakrishnan and Others

Case brief

What is this about?

What did the court decide?

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