M.A.C.A. No.2063 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **MACA.No.2063 OF 2015** **AGAINST THE AWARD IN OPMV 662/2012 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - III, KASARAGOD** ## **APPELLANTS/CLAIMANTS 1, 3 AND 4:** **1 PADMAVATHI AGED 69 YEARS W/O LATE AMBU JYOTHISHAR, RESIDING AT VELLOOR VAYAL, VELLIKOTH, AJANUR PO, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN:671531. 2 USHA B.K. AGED 41 YEARS D/O LATE AMBU JYOTHISHAR, RESIDING AT VELLOOR VAYAL, VELLIKOTH, AJANUR PO, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN:671531.** **3 SHIVAJITH T.V. AGED 13 YEARS S/O LATE JANARDHANAN, RESIDING AT VELLOOR VAYAL, VELLIKOTH, AJANUR PO, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN:671531. (AS THE 3RD APPELLANT IS A MINOR, HE IS REPRSENTED BY HIS NEXT FRIEND GUARDIAN, THE MOTHER OF THE 3RD APPELLANT IE. THE 2ND APPELLANT SMT. USHA B.K.)** **BY ADVS. SRI.T.R.RAVI SRI.ARUN AJAY SHANKAR SMT.CISSY MATHEWS SHRI.JAWAHAR JOSE SRI.V.VINAY MENON** ## **RESPONDENTS/RESPONDENTS 1 TO 3 AND THE 2ND CLAIMANT:** **1 KAMALAKSHAN P. AGED 37 YEARS S/O KANNAN NAIR, RESIDING AT ALLAMKULAM HOUSE, THEKKIL FERRY PO, PERUMBALA VILLAGE, KASARAGOD TALUK AND DISTRICT, PIN:671541.** **MACA 2063 of 2015** **2** - **2 ASHOKAN** **S/O KANNAN NAIR, RESIDING AT ALLAMKULAM HOSUE, THEKKIL FERRY PO, PERUMBALA VILLAGE, KASARAGOD TALUK AND DISTRICT, PIN:671541.** - **3 THE NEW INDIA ASSURANCE COMPANY LIMITED A-1, MUBARAK BUILDING, EDODI, VADAKARA PO, VADAKARA VILLAGE, KOZHIKODE DISTRICT, PIN:673513.** ## **4 BALAGOPALAN B.K** **AGED 45 YEARS** **S/O LATE AMBU JYOTHISHAR, RESIDING AT VELLOOR VAYAL, VELLIKOTH, AJANUR PO, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN:671 531.** ## **R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **C.R.** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **M.A.C.A. No.2063 of 2015** ## **-----------------------------------------------** ## **Dated 6[th] August, 2019.** ## **J U D G M E N T** Claimants 1, 3 and 4 in an original petition for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the inadequacy of the compensation granted by the Tribunal. 2. One Vijayan aged 52 years died in a motor accident took place on 03.11.2012. He was unmarried. The deceased was a Pump Operator in the Kerala Water Authority. The mother, brother, widowed sister and the son of the widowed sister of the deceased were the claimants in the proceedings. A sum of Rs.25,00,000/- was the claim made in the proceedings. The Tribunal has granted to the claimants a sum of Rs.13,75,000/- by way of compensation. The mother, widowed sister and the son of the widowed sister of the deceased who were claimants 1, 3 and 4 respectively in the claim petition are aggrieved by the decision of the Tribunal. MACA No.2063 of 2015 4 Hence this appeal. 3. Heard the learned counsel for the appellants. 4. The learned counsel for the appellants contended that the last pay certificate of the deceased which is part of the records in the case would indicate that the deceased was drawing a sum of Rs.20,940/- by way of Basic Pay, a sum of Rs.9,423/- by way of Dearness Allowance and Rs.1000/- by way of other allowances. According to the learned counsel, the aggregate of the said amounts namely Rs.31,113/- should have been reckoned as the income of the deceased for the purpose of computing the compensation payable for loss of dependency. It was pointed out that the Tribunal has reckoned only the basic pay of the deceased as the income for the said purpose. The learned counsel for the appellants also contended that as the deceased was unmarried, the Tribunal has deducted 50% of his income towards personal expenses, while computing the compensation for loss of dependency. According to the learned counsel, there is no rule that 50% of MACA No.2063 of 2015 5 the income shall be deducted invariably towards personal expenses in the case of unmarried persons. It was submitted by the learned counsel that the Tribunal is free to deduct a lesser percentage of the income towards personal expenses while computing the compensation for loss of dependency, if circumstances warrant. According to the learned counsel, having regard to the peculiarity of the facts of the present case, the Tribunal ought to have confined the personal expenses of the deceased to one third of his income. It was also submitted by the learned counsel that while computing the compensation for loss of dependency, the Tribunal has not added any portion of the income to the multiplicand towards future prospects. According to the learned counsel, in so far as the deceased was below the age of 60 and was a permanent employee in a public sector entity, 15% of the income should have been added to the multiplicand towards future prospects while computing the compensation for loss of dependency. It was also contended by the learned counsel that compensation MACA No.2063 of 2015 6 granted by the Tribunal for funeral expenses, pain and sufferings, loss of estate and loss of love and affection are meagre and are liable to be revised. 5. I shall first deal with the contention as regards the income to be deducted towards personal expenses while computing the compensation for loss of dependency. It appears that the Tribunal has deducted 50% of the income towards personal expenses in the light of the decision of the Apex Court in **Sarla Verma** v. **Delhi Transport Corporation** , (2009) 6 SCC 121, as affirmed by the Apex Court in **National Insurance Company Ltd** v. **Pranay Sethi,** 2017(4) KLT 662 (SC). In **Pranay Sethi** , the Apex Court has only approved the law laid down in **Sarla Verma** as regards the deduction to be made towards personal expenses. The said fact is evident from the operative portion of the decision in **Pranay Sethi** which reads thus: “For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall MACA No.2063 of 2015 7 be guided by paragraphs 30 to 32 of **Sarla Verma** which we have reproduced hereinbefore” ## Paragraphs 30 to 32 of the decision in **Sarla Verma** , as extracted in **Pranay Sethi** for the said purpose read thus: **“30.** Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in _Trilok Chandra_[4] ~~,~~ the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, onefourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. **31.** Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as MACA No.2063 of 2015 8 dependants, because they will either be independent and earning, or married, or be dependent on the father. **32.** Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” The extracted paragraphs would indicate that the general rule in the case of bachelors is that 50% of their income shall be deducted towards personal expenses while determining the multiplicand, and in exceptional cases, his personal and living expenses can be restricted to one third. As the deviation from the general rule is provided for only in exceptional cases, it has to be emphasised that the exceptional situations as one mentioned in paragraph 32 of the judgment in **Sarla Verma** shall be established by cogent and irrefutable evidence and inferences shall not be made in that regard based on MACA No.2063 of 2015 9 averments in the claim petitions. Coming to the facts of the case on hand, Ext.A8 copy of the ration card indicates that the deceased was residing with the claimants in the same house. It has also come out that the third claimant, the sister of the deceased, is a widow. Ext.A7 is the death certificate of the husband of the third claimant. In so far as the third claimant who is a widow was residing with the deceased along with her son, the fourth claimant, in the absence of any contrary evidence, it can certainly be reckoned that they are dependants of the deceased. As far as the brother of the deceased is concerned, merely for the reason that he was residing with the deceased, it cannot be presumed that he was also a dependant of the deceased. The second claimant was a person aged 42 years at the time of death of the deceased. In the absence of any evidence to the contrary, a male sibling of that age cannot be considered as dependant of the deceased, for, except in exceptional cases, such persons would not be dependants of their siblings. In the circumstances, the number MACA No.2063 of 2015 10 of dependants of the deceased can be taken as three and the personal and living expenses of the deceased can be restricted to one third for the purpose of computing the compensation for loss of dependency. 6. In the light of the decision of the Apex Court in **Pranay Sethi,** it is now settled that while computing the compensation for loss of dependency, a portion of the income has to be added to the multiplicand towards future prospects. The deceased being an employee of the Kerala Water Authority and as he had crossed the age of 50 years, the portion of his income to be added for future prospects is 15%. The contention raised in this regard by the learned counsel for the appellants also is, therefore, to be accepted. 7. As pointed out by the learned counsel, Ext.A4 last pay certificate would indicate that the take home pay of the deceased was Rs.31,113/-. The Tribunal, in the circumstances, should have taken at least Rs.30,000/- as the income of the deceased for the purpose of computing the MACA No.2063 of 2015 11 compensation payable to the claimants for loss of dependency and there was no justification for the Tribunal in reckoning the basic salary alone as the income of the deceased. The contention raised in this regard by the learned counsel for the appellants is also, therefore, to be accepted. 8. The age of the deceased being 52, there is no dispute between the parties as regards the multiplier to be applied for computing the compensation for loss of dependency. The multiplier to be applied is '11'. It has come out, however, that the deceased had only four more years of service. As the said fact cannot be disputed, according to me, split multiplier method has to be adopted for the said purpose. In other words, the compensation based on the salary drawn by the deceased applying the multiplier '4' and compensation based on an estimated income after the retirement, applying the remaining multiplier, viz, '7' have to be separately computed. As noted, the percentage of the income to be added towards future prospects is '15' and the amount to be MACA No.2063 of 2015 12 deducted towards personal expenses is one third. It has come out that the deceased was earning income by way of salary above the threshold limit prescribed for payment of income tax in terms of the Income Tax Act and therefore, appropriate deduction has to be made from the income towards payment of income tax as well. If the monthly income of the deceased is reckoned as Rs.30,000/- for the purpose of computing the compensation for loss of dependency, his annual income would come to Rs.3,60,000/-. The threshold limit for payment of the income tax during 2010 - 2011 being Rs.1,60,000/- and the tax liability for the income upto Rs.5,00,000/- being 10%, according to me, 10% of the income is liable to be deducted towards payment of income tax. If that be so, the income to be reckoned for computing the compensation for loss of dependency is Rs.27,000/-. If compensation is worked out on that basis for the initial period applying the multiplier '4', the same would come to Rs.9,93,600/- (27,000 x 115/100 x 12 x 4 x 2/3). In the light of the decision of this court in **Oriental** MACA No.2063 of 2015 13 **Insurance Co. Ltd.** v. **Valsa,** 2015 (1) KLT 781, the accident being one took place in the year 2012, according to me, Rs.13,500/- can be estimated as the income of the deceased after the period of retirement. The balance compensation payable for loss of dependency would therefore, come to Rs.8,31,600/- (13,500 x 110/100 x 12 x 7 x 2/3). As the deceased would cease to be an employee of the Kerala Water Authority after retirement, while arriving at the said income, the portion of income added to the multiplicand towards future prospects is only 10%. Thus, the total compensation payable to the claimants for loss of dependency would come to Rs.18,25,200/-. The Tribunal has granted only a sum of Rs.13,20,000/- by way of compensation under that head. The claimants would, therefore, be entitled to a further sum of Rs.5,05,200/-under that head. In the light of the decision of the Apex Court in **Pranay Sethi** , Rs.15,000/- each should have been granted by the Tribunal towards loss of estate and funeral expenses. Only a sum of Rs.20,000/- has been granted MACA No.2063 of 2015 14 towards compensation under those two heads. The claimants are, therefore, entitled to a further sum of Rs.10,000/- under those two heads. Likewise, only a sum of Rs.5,000/- has been granted by the Tribunal for pain and suffering. According to me, the Tribunal should have granted at least a sum of Rs.10,000/by way compensation under that head. The claimants are, therefore, granted a further sum of Rs.5,000/- by way of compensation under that head. Towards compensation for loss of love and affection, only Rs.25,000/- has been granted. According to me, the mother and sister of the deceased are entitled to a sum of Rs.40,000/- each under the said head [See **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** , 2018 ACJ 2782]. The claimants are, therefore, entitled to a further sum of Rs.55,000/- by way of compensation under that head. Thus, the additional compensation payable to the claimants would come to Rs.5,75,200/-. In the result, the appeal is allowed in part and the impugned award of the Tribunal is modified granting a further MACA No.2063 of 2015 15 sum of Rs.5,75,200/- to the claimants by way of compensation. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. The parties are at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. ## **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs