Gracy, widow of Anto v. P.D. Jose and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934 MACA.No. 1212 of 2012 () -----------------------OPMV.1204/2006 of M.A.C.T.,THRISSUR APPELLANTS/PETITIONERS: ----------------------------------- 1. GRACY, WIDOW OF ANTO 2. BENIN CRINT, S/O.LATE ANTO 3. BENIN CLINT, S/O.LATE ANTO, 4. BENECIA BINTA (MINOR), D/O.LATE ANTO, 5. JOSEPH C.B., S/O.BERNARD, (MINOR 4TH APPELLANT REPRESENTED HEREIN BY HER GUARDIAN MOTHER THE IST APPELLANT).ALL ARE RESIDING AT CHIRAMAL HOUSE, ELTHURUTH P.O., THRISSUR. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. P.D.JOSE, RESIDING AT PULIKKOTTIL HOUSE, P.O.CHITTATTUKARA THRISSUR-680511. 2. SAJEEVAN, S/O.CHANDRAN, RESIDING AT KOOTALA HOUSE, P.O.KANJANY THRISSUR-680612. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, CITY HEIGHTS BUILDING, SOUTH CHALAKKUDY THRISSUR-680307. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 1-11-2012, THE COURT ON 14-11-2012 DELIVERED THE FOLLOWING: # **K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A. No.1212 of 2012 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 14[th] day of November, 2012 ## **JUDGMENT** ## Joseph Francis J., This appeal is filed by the petitioners 1 to 4 and the son of the deceased 5[th] petitioner in O.P.(M.V.) No.1204 of 2006 on the file of M.A.C.T., Thrissur. 2. The case of the petitioners in the O.P.(M.V.) is as follows. The first petitioner is the widow and petitioners 2 to 4 are the children and the 5[th] petitioner is the mother of deceased Anto, who died in a motor accident which took place on 24.5.2006 at about 3 P.M. The deceased was riding a scooter bearing reg. No.KL08/W-8331 through Thrissur- Kanjany public road. When the _M.A.C.A. No.1212 of 2012_ **==> picture [14 x 10] intentionally omitted <==** scooter reached near Olari village office, a bus bearing reg. No.KL8/R-8430 driven by the second respondent came in a rash and negligent manner and hit against the scooter, while overtaking another. Anto was thrown into the road and suffered serious injuries. He was taken to Mother Hospital, Thrissur but succumbed to his injuries on the same day while undergoing treatment. The accident was due to the rash and negligent driving of the second respondent. First respondent was the owner of the bus and third respondent was the insurer. The petitioners claimed Rs.31,50,000/as compensation. 3. Respondents 1 and 2 remained ex-parte. Third respondent filed a written statement admitting the policy of the bus and contended that the accident was due to the negligence of the deceased and that the compensation claimed is excessive. Before the Claims Tribunal PW1 was examined and Exts.A1 to 16 and B1 were marked. The Claims Tribunal on considering the evidence on record found that the accident was due to the rash and negligent driving of the second respondent and awarded a compensation of _M.A.C.A. No.1212 of 2012_ **==> picture [14 x 10] intentionally omitted <==** Rs.24,53,600/- to the petitioners together with interest at the rate of 8% from 29.6.2006 till the date of realisation from the respondents and the third respondent was ordered to pay the amount as the insurer. Being dissatisfied with the quantum of compensation awarded the petitioners 1 to 4 and the son of the deceased fifth petitioner filed this appeal. 4. Heard learned counsel for the appellants and learned counsel for the Insurance Company. 5. Learned counsel for the appellants submitted that there are five dependents for the deceased and applying the principles laid down in **Sarla Verma v. Delhi Transport Corporation** (2010(2) KLT 802 SC), only 1/4 should have been deducted towards personal expenses instead of 1/3 deducted by the Claims Tribunal. Learned Counsel for the appellants submitted that the Tribunal erred while calculating the prospective income of the deceased and instead of accepting proved evidence via. Ext.A15 salary deduction certificate, the Tribunal calculated prospective income applying a straight formula of 30%. Ext.A15 would prove, beyond any doubt, _M.A.C.A. No.1212 of 2012_ **==> picture [14 x 10] intentionally omitted <==** that the deceased would have earned much more than that was calculated by the Tribunal. Learned counsel for the appellants invited our attention to the decision reported in **K.P. Madhusudhan and others v. Administrative Officer and another** (2011(4) SCC 689), in which it was held that : _“8. In_ _**Sarla Verma** judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcome of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances._ _9. We are of the opinion that the rule of thumb evolved in_ _**Sarla Verma** is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same._ _10. The present case stands on different factual basis where there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to_ _M.A.C.A. No.1212 of 2012_ **==> picture [14 x 10] intentionally omitted <==** _get a raise in income in the future, a fact which was corroborated by evidence on record. Thus, we are of the view that the present case comes within the “exceptional circumstances” and not within the purview of the rule of thumb laid down by_ _**Sarla Verma** judgment. Hence even though the deceased was above 50 years of age, he shall be entitled to increase income due to future prospects_ _**.”**_ ## Learned counsel for the Insurance Company supported the award ## passed by the Claims Tribunal. 6. The Claims Tribunal awarded compensation under various heads as follows: |**_Sl._**<br>**_No._**|**_Head of claim_**|**_Amount_**<br>**_claimed_**<br>**_(Rs.)_**|**_Amount_**<br>**_awarded_**<br>**_(Rs.)_**|**_Basis vital_**<br>**_details in a_**<br>**_nut shell_**| |---|---|---|---|---| |1|Medical and miscellaneous expenses|5,000||| |2|Funeral expenses|10,000|5,000|| |3|Transportation expenses|2,000||| |4|Extra nourishment|2,000||| |5|Damage to clothing & articles|1,000||| |6|Pain and suffering|15,000|12,000|| |7|Loss of estate|10,000|5,000|| |8|Loss on dependency|30,00,000|23,81,600|| |9|Loss of earning power|||22900x12x13<br>x2/3| |10|Loss of love and affection|40,000|25,000|| |11|Loss of consortium|40,000|25,000|| ## _M.A.C.A. No.1212 of 2012_ :6: **==> picture [413 x 85] intentionally omitted <==** **----- Start of picture text -----**<br> |||||| |---|---|---|---|---| |Sl.|Head of claim|Amount|Amount|Basis vital| |No.|claimed|awarded|details in a| |(Rs.)|(Rs.)|nut shell| |12|Loss of expectancy of life|25,000| |TOTAL|31,50,000|24,53,600| **----- End of picture text -----**<br> 7. There is no dispute that at the time of accident Anto was aged 49 years and he was working as Assistant Manager, State Bank of Travancore, Chemmanpatha Branch. According to the appellants monthly income of the deceased was Rs.22,905/-. Ext.A9 is the salary certificate dated 6.6.2006 showing the salary details of Anto which reads as follows: **==> picture [230 x 113] intentionally omitted <==** **----- Start of picture text -----**<br> |||| |---|---|---| |Basic salary|:|Rs.18,240.00| |D.A.|:|Rs. 3,480.19| |H.R.A.|:|Rs. 1,185.60| |Total salary|:|Rs.22,905.79| |= = = = = = = = = =| **----- End of picture text -----**<br> 8. Ext.A14 is the details showing the perks of deceased Anto and Ext.A15 is the tax deduction statement details. The deceased was not eligible for pension after retirement. Rs.16,600/- was deducted towards income tax from the salary of the deceased for the _M.A.C.A. No.1212 of 2012_ **==> picture [14 x 10] intentionally omitted <==** period of 1.4.2005 to 31.3.2006. The Claims Tribunal found that as per the principles laid down in **Sarla Verma v. Delhi Transport Corporation,** 30% enhancement is to be given towards the salary considering the prospects of promotion and increase in salary. The Claims Tribunal observed that we have also to see that whatever his income increases, the income tax even at the rate of 30% is to be deducted. The Claims Tribunal considering all these aspects together took Rs.22,900/- as monthly income of the deceased without any deduction. At the time of accident deceased Anto had only 10 years service more. But the Claims Tribunal took 13 as the suitable multiplier, as the deceased was aged below 50 years. In Ext.A15 nothing is stated about the income tax payable on the increase in salary. Therefore based on Ext.A15 it is not possible to assess actual salary after deducting tax. When the annual income is in the taxable range, the actual salary should be actual salary less tax. Therefore, Ext.A15 cannot be relied for the purpose of assessing the actual salary less tax. The Claims Tribunal deducted 1/3 from the salary of Rs.22,900/- towards personal expenses of the _M.A.C.A. No.1212 of 2012_ **==> picture [14 x 10] intentionally omitted <==** deceased. In the decision reported **Sarla Verma v. Delhi Transport Corporation,** it was held that where the deceased was married, the deduction towards personal and living expenses of the deceased should be ¼ where the number of dependent family members is 4 to 6. In the present case, the number of dependent family members is 5. Therefore, only ¼ need be deducted towards personal and living expenses of the deceased. Calculating on that basis, the appellants are entitled to get Rs.26,79,300/(22900x12x13x3/4) as compensation for loss of dependency in the place of Rs.23,81,600/- awarded by the Tribunal. The compensation awarded under other heads is reasonable and therefore we are not interfering with that part of the award. Thus, the appellants are entitled to get Rs.2,97,700/- as additional compensation. Accordingly this appeal is allowed in part and the appellants are allowed to realise Rs.2,97,700/- as additional compensation together with interest at the rate of 7.5% per annum from 29.6.2006 till the date of realisation from the respondents and the third _M.A.C.A. No.1212 of 2012_ **==> picture [14 x 10] intentionally omitted <==** respondent is directed to deposit the amount within three months from this date. Out of the additional compensation awarded Rs.50,000/- should be granted to the fifth appellant and the remaining amount should be apportioned among the appellants 1 to 4 equally. There is no order as to costs. ## **SD/** **K.T. SANKARAN,** **(JUDGE)** **SD/ M. L. JOSEPH FRANCIS, (JUDGE)** dl/