National Insurance Company Limited v. Benny C.J.

P.D. Rajan, J.:— This appeal is preferred against the award in OP (MV) No. 639 of 2010 of Additional Motor Accidents Claims Tribunal, Pathanamthitta by the insurer. First respondent in this appeal sustained injuries in a motor accident and the Motor Accident Claims Tribunal awarded compensation of Rs. 8,90,536/- and directed the insurer to satisfy the award amount. Being aggrieved by that, the insurer preferred this appeal.

2. It would be relevant and useful to mention the facts leading to this accident. On 21-11-2009 at 2.15 pm, the first respondent was travelling in a Tata Sumo KL-06/C-3000 through the Kozhencherry - Thiruvalla public road. When he reached in front of Mannil House, another bus KL-05-K-9511 driven in a rash and negligent manner hit against the car. As a result, he sustained serious injuries. The accident was due to the rash and negligent driving of the bus by the first respondent. Second respondent is the owner. The insurer admitted the insurance of the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Ext.A1 to A15.

3. The insurer contended that 50% was added towards future prospects, which is against the decision of the apex court in National Insurance Company v. Pranay Sethi [2017 (4) KLT 662 (SC)]. The injured was a Manager Cum Tourist guide in Vineetha Tourist Boat Service in Alappuzha. He is entitled to get 40% towards future prospects.

4. It is pertinent to note that the Apex court in National Insurance Company v. Pranay Sethi [2017 (4) KLT 662 (SC)] held as follows:

61. In view of the aforesaid analysis, we proceed to record our conclusions:—

(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.

(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.

(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.

(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.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(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.

5. The injured was aged 32 years at the time of the accident. He was working as a Manager Cum Tourist guide in vineetha Tourist Boat Service, Alappuzha. Ext.A11 salary certificate issued by the Medical Board, Pushpagiry Medical college Hospital, Thiruvalla shows 20% permanent disability. The insurer has no dispute with regard to the above above disability. The learned Tribunal relied the decision of the apex court in Syed Sadiq v. Divisional Manager, United India Insurance Company Ltd. ((2014) 2 SCC 735), while taking 50% towards future prospects.

6. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. There can be no uniform standard and yardstick provided for assessing such compensation. When two persons sustain similar injury, that can attract the same compensation, but the heads under which, compensation can be attributed are truly amazing. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case.

7. The first respondent was getting Rs. 10,000/- per month from Vineetha Tourist Boat and in view of National Insurance Company v. Pranay Sethi [2017 (4) KLT 662 (SC)] 40% has to be added towards future prospects. The compensation for the loss of earning capacity shall be Rs. 14,000 × 12 × 16 × 20/100 = 5,37,600/-. The learned Tribunal awarded Rs. 5,76,000/-. Hence a sum of Rs. 38,400/- has to be deducted. No appeal was preferred against the award or no cross objection has been preferred against this appeal by the injured. If that be the position, no further increase is necessary towards other heads. Hence the first respondent injured is entitled to get modified compensation of Rs. 8,52,136/- with 9% interest and proportionate cost. The insurer is directed to satisfy the award amount 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.

8. This appeal is disposed of, as above.