Kerala High Court

Sumathy vs V.S.Babu on 25 February, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942

                       MACA.No.2268 OF 2008

AGAINST THE AWARD IN OPMV 481/2003 DATED 12-05-2008 OF MOTOR
          ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA

APPELLANT/S:

      1        SUMATHY, W/O LATE SIVAN
               KARANATH HOUSE, KANAKAMALA DESOM & POST,
               KODAKARA VILLAGE, MUKUNDAPURAM TALUK,, THRISSUR
               DISTRICT.

      2        VISHNU (MINOR) AGED 15 YEARS
               S/O.LATE SIVAN, REPRESENTED BY HIS GUARDIAN,
               MOTHER SUMATHY, KARANATH HOUSE, KANAKAMALA,
               DESOM & POST, KODAKARA VILLAGE, MUKUNDAPURAM,
               TALUK, THRISSUR DISTRICT.

      3        KOUSALYA M/O.LATE SIVAN KARANATH
               HOUSE, KANAKAMALA DESOM & POST,, KODAKARA
               VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

               BY ADVS.
               SRI.P.V.BABY
               SRI.A.N.SANTHOSH

RESPONDENT/S:

      1        V.S.BABU
               VANPARAMBIL HOUSE, THANISSERY P.O.

      2        VISWAMBHARAN SO.LATE VELAYUDHAN
               CHIRAYUMMEL HOUSE, ANATHADAM,, MANAKULANGARA P.O

               R1 BY ADV. SRI.K.S.BHARATHAN

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 M.A.C.A. No. 2268 of 2008              2




                           P.V.KUNHIKRISHNAN, J
                        ----------------------------------
                         M.A.C.A. No. 2268 of 2008
                            --------------------------------
                   Dated this the 25th day of February, 2021


                                 JUDGMENT

The appellants are the legal heirs of the deceased Sivan. They

filed O.P.(M.V.) No.481/2003 before the Motor Accidents Claims

Tribunal, Irinjalakuda claiming compensation for the death of Sivan

in a motor accident at Kanakamala on 24.2.2003. The 1 st appellant is

the wife of the deceased. The 2 nd appellant is the son of the

deceased Sivan and 3rd appellant is the mother. The deceased Sivan

was aged 33 years at the time of the death.

2. The short facts is that the deceased Sivan was riding a

motor cycle bearing No.KL-7/L 6657 and at the place of accident,

the tipper lorry bearing No.KRE 8248 driven by the 2 nd respondent

rashly and negligently hit on the motor cycle. The rider sustained

fatal injury to which he succumbed within hours. The 1 st respondent

is the owner of the tipper lorry involved in the accident. The vehicle

was not insured with any insurance company at the time of the

accident. Therefore, the 1st and 2nd respondents are liable to pay

compensation.

3. The Tribunal after considering the entire facts and

circumstances awarded a compensation of Rs.3,10,000/- with 7%

interest per annum. Aggrieved by the quantum of compensation,

this appeal is filed.

4. Heard learned counsel for the appellant and respondents.

5. The counsel for the appellant submitted that the notional

income fixed by the Tribunal is only Rs.2,000/- and the counsel

submitted that in the light of the judgment of the Apex Court in

National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT

662 (SC)], the appellants are entitled an addition of 40% of the

income of the deceased towards future prospects because the

deceased was only aged 33 at the time of accident. The appellants

submitted that deceased Sivan was a businessman and fixation of

notional income as Rs.2,000/- by the Tribunal is too low. The counsel

also submitted that the amount awarded for the funeral expenses,

loss of estate and loss of consortium is too low. The counsel for the

respondent submitted that the Tribunal after considering

the entire oral and documentary evidence, passed just

and reasonable compensation and there is nothing to interfere with

the compensation awarded by the Tribunal.

6. It is true that the notional income fixed by the Tribunal is

only Rs. 2,000/-. The deceased Sivan was aged 33 years at the time

of the death. Even a coolie will get more than Rs. 2,000/- as monthly

income. In the light of the Apex Court decision in

Ramachandrappa v. The Manager, Royal Sundaram Alliance

Insurance Company Limited [AIR 2011 SC 2951], the notional

income can be fixed as Rs. 3,000/-. Moreover, in National

Insurance Company's case (supra), the Apex Court observed that

an addition of 40% of the establishment income of the deceased

towards future prospects also is to be calculated while fixing

compensation. The relevant portion of the judgment of the Apex

Court is extracted hereunder :

59. "Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under S.168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state t hat the legal representatives of a

deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be in apposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and strictness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and unequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable."

7. The deceased in this case was only 33 years at the time of

accident. Therefore, the monthly income can be fixed as Rs.4,200/-

In the light of the above, the amount that is payable to the

appellants can be re-calculated like this :

Rs.4,200 x12x16x2/3 = Rs.5,37,600/-

8. The amount already paid by the Tribunal is Rs.2,72,000/-.

The balance enhanced amount to be paid is Rs.2,65,600/-. As far as

the funeral expenses, loss of estate and loss of consortium, I think

no interference is necessary. Therefore, the appellant is entitled an

enhanced compensation of Rs. 2,65,600/- with interest at the rate of

7% from the date of application.

Therefore, the appeal is allowed in part. The appellants are