Allowed

Saraswathiamma v. Beena Guruvayoorappan

Kerala HC2 Nov 2018MACA/91/2015

Case brief

AI extract

What is this about?

The High Court enhanced compensation award for legal heirs in a fatal motor accident case. Applying Pranay Sethi guidelines, the Court fixed monthly income at Rs.5,000 and awarded an additional Rs.1,69,000 towards loss of dependancy and conventional heads, totaling enhanced compensation.

What did the court decide?

Enhanced compensation of Rs.1,69,000 awarded with 9% interest and proportionate cost; insurer directed to pay within thirty days.

Saraswathiamma Vs Beena Guruvayoorappan — 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 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940

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MACA.NO. 91 OF 2015

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AGAINST THE AWARD IN O.P.(M.V.) NO.1032/2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 04-04-2013

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APPELLANTS/PETITIONERS :

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1 SARASWATHIAMMA, AGED 59 YEARS W/O.LATE VASUDEVAN, KOZHIKKARA PADINJAAREA VEETIL, KUMARANELLUR, KUMARANELLUR.P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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2 KOJIPATI SATHYANARAYANA, AGED 41 YEARS, S/O.LATE KOJIPATI VASUDEVAN NAIR, KOZHIKKARA PADINJAAREA VEETIL, KUMARANELLUR, KUMARANELLUR P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.

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3 K.P.SREENIVASAN, AGED 38 YEARS S/O.LATE KOJIPATI VASUDEVAN NAIR, KOZHIKKARA PADINJAAREA VEETIL, KUMARANELLUR, KUMARANELLUR P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADVS. SRI.BINOY VASUDEVAN

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SMT.P.G.BABITHA

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RESPONDENTS/RESPONDENTS :

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1 BEENA GURUVAYOORAPPAN, AGE NOT KNOWN, W/O GURUVAYOORAPPAN, AMRITHA BHAVAN, AAANEAR KSRTC, MANJAKKALAM, PALAKKAD TOWN, PALAKKAD-678101.

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2 MANOJ K., AGED 41 YEARS S/O.GOPALAKRISHNAN, GREESHMA,VALIYAPADAM, C.N.PURAM P.O, PALAKKAD DISTRICT-678105.

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MACA.NO. 91 OF 2015 2

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3 THE NEW INDIA ASSURANCE CO.LTD PALAKKAD-678101.

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BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.NO. 91 OF 2015

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JUDGMENT

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This appeal is preferred against the award in O.P.(M.V.) No.1032 of 2010 of the Motor Accidents Claims Tribunal, Palakkad by the legal heirs of the deceased Vasudevan Nair. On 03.11.2008 at 7.15 p.m., the deceased was travelling in a bus KL-09/V-9865, when he reached at Walayar, the bus stopped, when deceased was alighting, the 2^nd respondent driven the vehicle in a rash and negligent manner, as a result the deceased thrown out of the bus and sustained serious injuries, while undergoing treatment, he succumbed to the injuries. The Tribunal awarded Rs.2,22,200/- (Rupees Two Lakh Twenty Two Thousand Two Hundred only) as compensation. Being aggrieved by that, the legal heirs preferred this appeal.

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The accident was not disputed by the respondents in the lower court. Insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A14.

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MACA.NO. 91 OF 2015

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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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Apex Court in National Insurance Company V.

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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

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MACA.NO. 91 OF 2015

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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 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

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MACA.NO. 91 OF 2015

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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 working as a Canteen worker at Malabar Cements and getting Rs.6,000/- per month, but no evidence has been adduced to prove the income, therefore, the Tribunal took Rs.3,000/- for calculating compensation. Hence, I fix his monthly income as Rs.5,000/- and award the following amounts as enhanced compensation.

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Loss of dependancy Rs.2,80,000/- (5000x12x7x2/3). Tribunal awarded Rs.1,68,000/-, the balance is Rs.1,12,000/-. In view of Pranay Sethi (Supra) 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. Hence, in addition to that, an additional amount of Rs.10,000/- is awarded towards Loss of Estate, Rs.35,000/- is awarded towards Loss of consortium and Rs.12,000/- is awarded towards Funeral expenses. The total enhanced compensation is Rs.1,69,000/- (Rupees One

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MACA.NO. 91 OF 2015

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Lakh Sixty Nine Thousand only). Accordingly, the appellants are entitled to get an enhanced compensation of Rs.1,69,000/-

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(Rupees One Lakh Sixty Nine Thousand only) with 9% interest and proportionate cost in addition to the award amount of Rs.2,22,200/- (Rupees Two Lakh Twenty Two Thousand Two Hundred only). The insurer is directed to satisfy the award within a period of thirty 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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M.A.C.A is disposed of as above.

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Sd/-

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P.D. RAJAN, JUDGE

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/True Copy/ P.A. To Judge

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Saraswathiamma v. Beena Guruvayoorappan

Case brief

What is this about?

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Saraswathiamma v. Beena Guruvayoorappan

Case brief

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