Aparna Thampy v. Upendran Umesh & Ors

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA THURSDAY, THE 27TH DAY OF NOVEMBER 2014/6TH AGRAHAYANA, 1936 MACA.No. 2017 of 2014 () ------------------------- AGAINST THE AWARD IN OPMV 295/2000 of M.A.C.T.,PUNALUR DATED 17-052005 APPELLANT(S)/3RD PETITIONER IN THE O.P:: ----------------------------------------------- APARNA THAMPY D/O.THAMPY, MANGALASSERY VEEDU, VADAMON P.O. ANCHAL, KOLLAM DISTRICT (NOW RESIDING AT NANDANAM KALAIKIZHKKU, MANNADY P.O., ADOOR) BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S)/RESPONDENTS 2 TO 7 AND PETITIONERS 1, 2 & 4 IN THE O.P:: ------------------------------------------ 1. UPENDRAN UMESH S/O.UPENDRAN, KOTTAKKAVILA VEEDU, NADUVILAKKARACHERRY MAYYANADU VILLAGE, KOLLAM, PIN: 691 001. 2. M/S.ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, KOLLAM, PIN: 691 001. 3. LEELA DEVI, W/O.SREEDHARAN PILLAI, PEEDIKAVILA VEEDU, PUNUKANNOOR ALUMMODU P.O., MUKTHATHALA, KOLLAM PIN: 691 577. 4. RADHAMONY, PEEDIKAVILA VEEDU, PUNUKANNOOR, ALUMMOODU P.O. MUTHATHALA, KOLLAM, PIN: 691 577 5. VENUGOPAL, PEEDIKAVILA VEEDU, PUNUKANNOOR, ALUMMOODU P.O. MUKTHATHALA, KOLLAM, PIN: 691 577. 6. RAJAGOPAL, PEEDIKAVILA VEEDU, PUNUKANNOOR, ALUMMOODU P.O. MUKTHATHALA, KOLLAM, PIN: 691 577. 7. AMBILY .S., W/O.LATE THAMPY, MANGALASSERY VEEDU, VADAMON P.O. ANCHAL, KOLLAM DISTRICT, PIN: 691 306. 8. ANANTHAKRISHNAN, S/O.LATE THAMPY, MANGALASSERY VEEDU, VADAMON P.O. ANCHAL, KOLLAM DISTRICT, PIN: 691 306. 9. B.BHAVANI, W/O.PURUSHOTHAMAN, MANGALASSERY VEEDU, VADAMON P.O. ANCHAL, KOLLAM DISTRICT, PIN: 691 306. R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW R BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.A.NO. 2017 OF 2014** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 27TH DAY OF NOVEMBER, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. This appeal is filed by the appellant who was a minor at the time when the application for compensation was filed as O.P.(MV) No.295/2000. The victim is the father of the appellant. The application was filed by the mother on behalf of the appellant, appellant's brother Ananthakrishnan and the mother of the deceased, Smt. Bhavani. Now the mother and the other claimants have not joined in the appeal and they have been arrayed as respondents 8 to 10. 2. The deceased died in a motor vehicle accident on 9.2.2000 while riding a scooter. The offending vehicle is a lorry bearing registration No.KL/3/B/2832 which hit on the scooter and he succumbed to the injuries on the same day. He was aged 40 years at the time of accident and was working as Sales Promoter with New Indian Express and according to the appellant, he was getting a monthly salary of Rs.10,000/-. The appellant was only 4 years of age at the time of accident. The award is dated MACA No.2017/2014 -2- ## 17.5.2005 and after attaining majority this appeal is filed. 3. We find from the award that the Tribunal has calculated the loss of income at Rs.5,40,000/- by taking the net annual income of the deceased as Rs.36,000/-. One third was deducted for personal expenses. The items of heads of compensation are as follows: Loss of income : Rs.5,40,000/(2 x 4500 x 12 x 15/3) Transport to Hospital : Rs. 3,000/Funeral expenses : Rs. 5,000/Pain and suffering : Rs. 10,000/Loss of consortium : Rs. 15,000/Loss of love and affection : Rs. 20,000/Total Rs.5,93,000/=========== 4. Shri Anchal C. Vijayan, learned counsel for the appellant invited our attention to the finding by the Tribunal with regard to the fixation of monthly income. It is submitted that Ext.A11 will show that the deceased was assured a monthly salary of Rs.6,500/- inclusive of all allowances and he was also entitled for commission on sales promotion which aspect has been spoken to by the mother of the appellant who was examined as P.W.1 and P.W.2 who was the Manager of New Indian Express at the relevant time even though he left the organisation later. The relevant portions of their MACA No.2017/2014 -3- deposition have been brought to our attention and it is submitted that the same can be accepted as there was no challenge on it. 5. The discussion contained in paragraph 13 of the judgment shows that as on the date of death, the deceased was working as Sales Promotor in New Indian Express, Thiruvananthapuram office. He was drawing a monthly salary of Rs.6,500/- inclusive of all allowances as supported by Ext.A11. The version of P.W.2 was that a Sales Promotor is supposed to enroll new subscribers and canvass copies for various publications brought out by the Indian Express Group. Before the deceased joined the New Indian Express, he was working with Kerala Kaumudi. On completion of five years as Sales Promotor, they get promotion as Sales Inspector and the minimum salary of Sales Inspector is Rs.15,000/-, inclusive of allowances. It is also observed by the Tribunal that in addition to the salary of Rs.6,500/reflected in Ext.A11, he was entitled to get agency advertisement and agency commission of around Rs.2,500/- per month. After assessing evidence, the Tribunal was of the view that the deceased was getting monthly a total sum of Rs.9,000/-. In paragraph 15, reference was made to the passport, Ext.A14 as well as Ext.A12 E.S.I. Corporation identity card. Ext.A13 shows that he was a B.com. Graduate. It was held MACA No.2017/2014 -4- that on completing the fixed number of years, viz. Five years, his salary would have been Rs.15,000/- per month. In paragraph 17, after stating that the the monthly income can be taken as Rs.9,000/- for arriving at the compensation, Rs.4,500/- has been adopted. 6. Shri Anchal C. Vijayan, learned counsel for the appellant submitted that the Tribunal has committed a gross mistake in fixing only Rs.4,500/- as monthly income. According to the learned counsel, the evidence of P.W.1, the mother of the appellant coupled with the evidence of P.W.2 will show that the deceased was receiving sales commission of a total amount of Rs.2,500/- per month. Therefore, the total monthly salary can easily be arrived at Rs.9,000/-. Further, in the light of the evidence of P.W.2, it is submitted by the learned counsel for the appellant that since the deceased was entitled for a promotion as Sales Inspector, to which post Rs.15,000/- is the assured payment, this Court will be right in adding more amount towards future prospectus of the deceased, going by the principles stated by the Apex Court in various decisions. He relied upon **Oriental Insurance Company Limited v. Jashuben and others** {(2008) 4 SCC 162} and **New India Assurance Co. Ltd. v. Gopali and others** (2012 ACJ 2131) in this context. MACA No.2017/2014 -5- 7. Shri Mathews Jacob, learned Senior Counsel for the Insurance Company submitted that there is nothing to show that the deceased was receiving commission beyond the payment of Rs.6,500/-. It is also submitted that unlike a permanent job, herein he was a Sales Promotor and therefore the payment to him, going by Ext.A11, will be on an average of Rs.6,500/-. Therefore, it is submitted that the test laid down in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 - SC) cannot help the appellant. 8. We have bestowed our attention to the various aspects. It is evident from Ext.A11 that the deceased was having a monthly income of Rs.6,500/- on an average which is inclusive of all allowances. The question is whether it can be termed as a salary. Of course, the conditions of service are not evident from Ext.A11. But these aspects have been spoken to by P.W.2. But the difficulty will be that P.W.2 was not part of the organisation when he deposed before the Tribunal. Therefore, unless there was documentary support to show that automatically the deceased will get a promotion on completion of five years as Sales Promotor, this Court will not be justified in accepting that he will be promoted as Sales Inspector after the fixed period and will be entitled for a salary at Rs.15,000/- per month. MACA No.2017/2014 -6- Apart from that, the commission payable to him is really variable. Only if he gets proper turnover by way of collecting advertisements and other business as agent, he will be getting an amount of Rs.2,500/- as commission. Of course, Shri Vijayan submitted that Rs.2,500/- is the minimum amount offered, but the same is also not part of the conditions provided in Ext.A11. Therefore, whether as on the date of death he was receiving Rs.2,500/- as commission for advertisements made, was a factor which should have been supported by documentary evidence and the same could have been easily made available from the part of the management, if the said documents were summoned. Since the said element is a variable one, unless there is evidence in concrete form, this Court will not be justified in straight away accepting that the monthly remuneration of the deceased would be Rs.9,000/- as found by the Tribunal. The Tribunal has accepted the plea of the claimants that he was entitled for promotion after five years which also, we find, cannot be definitely said on the basis of the evidence now available before the Tribunal. Therefore, it is only safe to accept Rs.6,500/as monthly income. Of course, there is a fervent plea by the learned counsel for the appellant that this Court can add more amount towards future prospects. Learned counsel invited our attention to the remuneration he was MACA No.2017/2014 -7- receiving while he was in Kerala Kaumudi and the difference in the amount he was getting at the time of death while working in the New Indian Express. But, as we have observed earlier, the clear and definite service conditions are not before the court and therefore only by way of speculation we will be able to add something more to the salary of Rs.6,500/-. 9. In this context, we will refer to paragraph 24 of the decision of the Apex Court in **Sarla Verma's case** (2010 (2) KLT 802 - SC) wherein the Apex Court held as follows: “Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.) the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in a rare and exceptional cases involving special circumstances.” Therefore, in this case, going by the above dictum, what is discernible from Ext.A11 is that he was getting a fixed salary of Rs.6,500/- and there is no provision for annual increment also, going by the said certificate. A departure can be taken only if special circumstances are proved convincingly, which according to us, are absent here. In that view of the matter, we will be justified in taking Rs.6,500/- as the monthly income of the deceased, for calculating monthly contribution instead of Rs.4,500/- MACA No.2017/2014 -8- fixed by the Tribunal. 10. As far as the aspect of loss of consortium is concerned, as rightly pointed out by the learned counsel for the insurance company, since the widow of the deceased is not an appellant herein, we will not be justified in enhancing the same. Since four claimants were there, 1/4[th] will have to be deducted towards personal expenses of the deceased. But we refix the total compensation in the following manner, after enhancing the compensation for loss of income, funeral expenses, loss of love and affection as far as the appellant is concerned and compensation for loss of estate: Loss of income - Rs.8,77,500/- ( 6500 x 12 x 15 x 3) 4 Funeral expenses - Rs. 25,000/Pain and suffering - Rs. 10,000/Loss of estate - Rs. 30,000/Loss of consortium - Rs.1,00,000/Loss of love & affection - Rs.1,00,000 ------------------Total - Rs.11,42,500/=========== It is submitted by the learned Senior Counsel for the Insurance Company relying upon the decision of a Division Bench of this Court in **New India** MACA No.2017/2014 -9- ## **Assurance Co. Ltd. v. K.V. Sree Devi and other** s (1991 ACJ 610) that the widow and other claimants will not be entitled for the benefit of this judgment. In the light of the following dictum laid down in paragraph 6 of the above judgment, the learned Senior Counsel is well justified in advancing the said argument: “The first petitioner being a major on the date of the accident as also on the date of the petition she should have filed the petition within six months. As the petition is admittedly filed beyond the period of six months, it is barred by limitation so far as the first petitioner is concerned and the fact that the second petitioner is a minor will not save the limitation so far as the 1[st] petitioner is concerned.” No appeal is filed by the widow. The appellant filed it as she is a major. The said appeal as far as her rights are concerned, is maintainable. The appellant will be entitled for 1/4[th] of the compensation excluding the compensation for love and affection of Rs.1 lakh which she will be entitled in full. 11. There are three claimants, apart from the mother of the deceased. It is seen from the award that the mother of the deceased is given a consolidated sum of Rs.50,000/- as share. Therefore, the total compensation MACA No.2017/2014 -10- after reducing Rs.50,000/-, will be Rs.9,92,500/- and the appellant will be entitled for 1/3[rd] of the said amount, along with interest at 9% per annum for the enhanced amount of compensation. The amount granted towards loss of love and affection at Rs.1 lakh will be added to the same, since the same is granted exclusively for the appellant. Thus, the compensation due to the appellant will be Rs.Rs.4,30,833/-. The appeal is allowed as above. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(P.V. ASHA, JUDGE)** **kav/**