MACA NO. 2114 OF 2017

``` MACA NO. 2114 OF 2017 ``` 1 # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945 ``` ``` MACA NO. 2114 OF 2017 ``` ``` [AGAINST THE AWARD DATED 25.11.2016 IN OP(MV) NO.224 OF 2011 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ``` ## `MAVELIKKARA]` ## `APPELLANT/PETITIONERS 1 TO 3:` ``` 1REVATHI KAILASH KOZHISSERIL VEEDU, SOUTH MANKUZHI, PULLIKKANAKKU P.O. 2SREEHARI (MINOR) KAILASH KOZHISSERIL VEEDU, SOUTH MANKUZHI,PULLIKKANAKKU P.O. 3PONNAMMA KAILASH KOZHISSERIL VEEDU, SOUTH MANKUZHI,PULLIKKANAKKU P.O. (MINOR PETITIONER IS REPRESENTED BY HIS MOTHER, GUARDIAN AND NEXT FRIEND 1ST PETITIONER) BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN ``` ## `RESPONDENTS /RESPONDENTS & 4TH PETITIONER:` ``` 1ASHOKAN ADIKKATTU VEEDU, DESATHINAKAM MURI, KRISHNAPURAM-690533. 2SARAGADHARAN KADAYIL THEKKATHIL, KANDALLOOR, KAYAMKULAM- 690502. 3THE NEW INDIA ASSURANCE CO.LTD. REP. BY ITS BRANCH MANAGER, BRANCH OFFICE, KAYAMKULAM-690502. 4MOHANA CHANDRAN KAILASH KOZHISSERIL VEEDU, SOUTH MANKUZHI, PULLIKKANAKKU P.O.-690502. ``` ``` MACA NO. 2114 OF 2017 ``` **==> picture [7 x 9] intentionally omitted <==** ``` BY ADVS. R3 BY SRI.P.G.GANAPPAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2114 OF 2017 ``` 3 ## `JUDGMENT` ``` The appellants are the petitioners in OP(MV) No.224/2011 on the files of the Additional Motor Accidents Claims Tribunal, Mavelikkara. ``` ``` 2.The said claim petition was submitted by them seeking compensation for the death of One Binu Mohana Chandran, due to the injuries sustained in a Motor Accident that occurred on ``` ``` 12.08.2010. The accident occurred when the ``` ``` motorcycle ridden by him was hit by another vehicle bearing Reg.No.KL-29/B-3121 driven by the ``` ``` 1[st] respondent in a rash and negligent manner. The ``` ``` second respondent was the owner of the said ``` ``` vehicle, and it was insured with the 3[rd] respondent. ``` ``` 3.According to the claimants, the deceased ``` ``` was aged 33 years at the time of the accident, and he was working as an L.P School Assistant with a ``` ``` MACA NO. 2114 OF 2017 ``` **==> picture [7 x 9] intentionally omitted <==** ``` monthly income of Rs.17,826/-. The 1[st] appellant is ``` ``` the wife, the 2[nd ]appellant is the son, and the 3[rd] appellant is the mother of the deceased. The 4[th] ``` ``` respondent, who was the 4[th] petitioner in the claim petition, is the father of the deceased. The claim petition was submitted seeking a total compensation of Rs.22,66,000/-. ``` ``` 4.The owner and driver of the vehicle ``` ``` remained set ex parte. The 3[rd] respondent Insurance Company filed a written statement admitting the coverage of the policy but disputed the liability on various grounds. They also disputed the quantum of compensation and the negligence. ``` ``` 5.The evidence in this case consists of Exts.A1 to A11 from the side of the appellants, and no evidence was adduced by the respondents. After examining the materials placed on record, the Tribunal found that the accident occurred due to the negligence on the part of the 1[st] respondent and being the insurer of the said vehicle driven by the 1[st] respondent, the 3[rd] respondent was held ``` ``` MACA NO. 2114 OF 2017 ``` 5 `liable to pay the compensation. The quantum of compensation was fixed as Rs.38,00,374/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of the petition till the date of realization. Being aggrieved by the quantum of compensation, this appeal is filed by the appellants.` ``` 6.Heard Sri.George Varghese Perumpallikuttiyil, learned counsel appearing for the appellants and Sri.P.G.Ganappan, the learned counsel for the 3[rd] respondent insurance company. ``` ``` 7. The learned counsel for the appellants mainly disputed the manner in which the income tax was deducted by the Tribunal while awarding compensation under the head of loss of dependency. It was pointed out that the Tribunal has deducted 10% towards income tax from the entire monthly income without considering the fact that the entire monthly income could not have been subjected to tax. To be precise, the ceiling ``` ``` MACA NO. 2114 OF 2017 ``` 6 ``` contemplated under the Income Tax Act pertaining ``` ``` to the assessment year, as non-taxable income, was not taken into consideration, and thus, it resulted in excess deduction towards income tax, thereby reducing the compensation under the said head. ``` ``` 8.After carefully going through the materials placed on record, I find some force in the said contention. As rightly pointed out by the learned counsel for the appellants, the manner in which the income tax has to be deducted while determining the monthly income for the purpose of assessment of compensation under the head of functional disability was specifically considered by the Honourable Supreme Court in Sarala Verma & ``` ``` Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]. In paragraph 20, it was ``` ``` observed by the Honourable Supreme Court that “generally the actual income of the deceased less income tax should be the starting point of ``` ``` calculating the compensation”. ``` ``` MACA NO. 2114 OF 2017 ``` 7 ``` 9.Similarly, in paragraph 46 ofNational Insurance Company Limited v.Pranay Sethi & Ors. [2017 (4) KLT 662 (SC)], this aspect was further clarified by the Honourable Supreme Court with the following observations; ``` “At the stage, we must immediately say that in so far as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of the income established by the legal representatives of the deceased. Future prospects are to be added with the sum on the percentage basis and “income” means actual income less than the tax paid….” ``` Thus it is very clear from the observations made ``` ``` by the Honourable Supreme Court in the aforesaid decisions that, before the addition towards future ``` ``` prospects is to be made, the tax has to be applied ``` ``` on the actual income determined based on the materials placed on record and the future prospects are to be computed on the income less the income tax payable. In this award, the Tribunal has deducted 10% towards income tax for the entire monthly income without taking into account the actual ceiling contemplated under the income tax for determining the taxable income. As per the tariff prevailing in the financial year ``` ``` MACA NO. 2114 OF 2017 ``` 8 ``` 2010-2011, the tariff of tax was 10% of the income above Rs.1,60,000/-. In this case, admittedly, the monthly salary of the deceased was Rs.17,826, and ``` ``` therefore,theannualincomewouldbe ``` ``` Rs.2,13,912/-. The taxable income in such circumstances could be Rs.53,912/- (Rs.2,13,912- 1,60,000), and while working out 10% thereof, the ``` ``` actual tax payable would come to Rs.5,391/-. Thus, after deducting tax, the annual income would come ``` ``` to Rs.2,08,521 [Rs.213912-5391]. When future ``` ``` prospects at the rate of 50% are added, it would come to Rs.3,12,781.5/-, which has to be rounded to Rs.3,12,782/-. When the compensation is ``` ``` reworked based on the same, the total amount will come to Rs.37,53,378/- (Rs.3,12,782x16 x 3/4). The amount already awarded by the Tribunal under the head of loss of dependency would come to Rs.34,65,374/- and thus, the additional amount ``` ``` receivable by the appellant under this head would come to Rs.2,88,004/-. ``` ``` 10.At this juncture, the learned counsel for ``` ``` MACA NO. 2114 OF 2017 ``` 9 ``` the Insurance Company would point out that in certain other heads, excess amounts have been granted by the Tribunal than contemplated by the Honourable Court in Pranay Sethi’s case (Supra). On going through the amounts awarded by the ``` ``` Tribunal under various heads, I find some force in the said contention. The amount awarded under the head of funeral expenses is Rs.25,000/- whereas the proper amount is Rs.15000/- and therefore ``` ``` Rs.10,000/- is to be deducted under this head. ``` ``` 11.Similarly, an amount of Rs.1,00,000 is ``` ``` granted under the head of loss of consortium, and again, a further sum of Rs.1,00,000/- is awarded under the head of compensation for loss of love and affection. As per the principles laid down by the Honourable Supreme Court inUnited India Insurance Company Limited v. Satinder Kaur @ Satwinder Kaur and others [(2021)11 SCC 780]], the appellants and the 4[th] respondent are entitled to compensation for loss of consortium at the rate of Rs.40,000/- each. Therefore, while re-fixing the ``` ``` MACA NO. 2114 OF 2017 ``` 10 `compensation under this head, the same would come to Rs.1,60,000/- and thus the additional compensation would be Rs 60,000/-. In Satinder Kaur’s case (Supra), it was further observed that when compensation is awarded under the head of loss of consortium, no further amounts need to be awarded for loss of love and affection. Therefore,` ``` the amount of Rs.1,00,000/- granted under the head ``` ``` of love and affection has to be deducted while ``` ``` fixing the amount of compensation under the head of loss of consortium as Rs.1,60,000/-. Similarly, towards loss of estate, an amount of ``` ``` Rs.1,00,000/- is seen awarded. The said amount is excess as per the principles laid down in Pranay Sethi’s case(Supra)byRs.85000/- and this also has to be deducted. ``` ``` 12.The learned counsel for the appellants ``` ``` further pointed out that, even though the deceased was hospitalized for a period of 34 days before he succumbed to the injuries, the appellants and 4[th] respondent are entitled to compensation for ``` ``` MACA NO. 2114 OF 2017 ``` 11 `attendant expenses for the said period. The said contention is only to be accepted. Considering the date of the accident, I deem it appropriate to calculate compensation at the rate of Rs.150 per day and accordingly, an additional compensation of` ``` Rs.5,100/- is awarded under the said head. ``` ``` 13.Thus, while reassessing the compensation, in the light of the above, the additional ``` ``` amountreceivablebytheappellantis ``` ``` determined as Rs.1,58,104/-[(288004+60000+51000 (10000+100000+85000)+60,000+5100]. ``` ``` In the light of the aforesaid findings and ``` ``` observations, this appeal is allowed, the award ``` ``` dated 25-11-2016 in OP(M.V)No.224/2011 passed by the Additional Motor Accidents Claims Tribunal, Mavelikkara is hereby modified by granting an additional compensation ofRs.1,58,104/-[Rupees One Lakh Fiftyeight thousand One hundred and four only] and the 3[rd] respondent-Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal, ``` ``` MACA NO. 2114 OF 2017 ``` 12 `within a period of 3 months from the date of receipt of a copy of this judgment.` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` sah ```