MACA.No. 623 of 2007

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935** ## **MACA.No. 623 of 2007 ( )** **------------------------AGAINST THE AWARD IN OPMV 866/2002 of M.A.C.T.,PERUMBAVOOR DATED 09-01-2007** ## **APPELLANT(S)/PETITIONERS:** **--------------------------------------------** **1. ASIYA, W/O.MUHAMMED, PZHAMPILLY HOUSE, PANACHIYAM, NEDUNGAPRA P.O., ASAMANNOOR VILLAGE KUNNATHUNADU.** ## **2. ALIYAR, S/O.MUHAMMED -DO-...-DO-.** ## **3. AMINA, D/O.MUHAMMED -DO-...-DO-.** ## **4. FATHIMA,D/O.MUHAMMED -DO-...-DO-.** ## **5. KHADIJA,D/O.MUHAMMED -DO-...-DO-.** **MENTALLY RETRADED , REP. BY IST APPELLANT MOTHER.** ## **6. SUBAIDA,D/O.MUHAMMED -DO-...-DO-.** ## **BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENT(S)/RESPONDENTS:** **------------------------------------------------** **1. P.SELVARAJ, S/O.K.S.PONNY SWAMY, 4/16, KARUVEPPAMPATTY P.O., THIRUGHENGODE NAMAKKAL DISTRICT, TAMIL NADU, PIN-637 211.** - ***2. K.GANESAN,S/O.KANDASWAMY, 75A,** - **RAKKLYAMPETTY, KONGANAPURAM P.O., EDAPPADI TALUK SALEM DISTRICT, TAMIL NADU.** **3. THE NATIONAL INSURANCE CO.LTD, BRANCH OFFICE, 8`1D, CHETTY STREET OPPOSITE BUS STAND, THIRUCHENGODE, PIN-637 211.** **(R2 DELETED FROM THE PARTY ARRAY AS PER ORDER IN I.A.NO.704/13 DTD.13.3.2013)** ## **R3 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 623 of 2007 ================== Dated this the 9[th] day of July, 2013 J U D G M E N T ## S.Siri Jagan, J.: The appellants are the mother and siblings of deceased Abbas. Out of the six appellants, the 5[th] appellant is an unmarried mentally retarded lady, who is represented by her mother and guardian, the 1[st] appellant. Abbas died in a motor accident caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. (The 2[nd] respondent was deleted from the party array as per order dated 13.3.2013 in I.A.No.704/2013). The appellants filed O.P.(M.V).No.866/2002 before the Motor Accidents Claims Tribunal, Perumbavoor, claiming compensation for the death of Abbas. Abbas was a Police Constable in the Police Department of the Government of Kerala. After finding negligence on the part of the driver of the vehicle, the Tribunal awarded compensation under various heads as follows: ||Head of claim|Amount<br>awarded<br>`| |---|---|---| |1|Loss of dependency|75,024.00| |2|Transportationexpenses|2,500.00| m.a.c.a.623/07 - : 2 :- |3|Funeralexpenses||3,000.00|3,000.00| |---|---|---|---|---| |4|Treatmentexpenses||6,385.00|| |5|Damage to clothings||250.00|| |6|Pain and suffering||10,000.00|| |7|Love and affection||15,000.00|| |8|Loss of estate|||2,500.00| ||Total||114,659.00|| Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal seeking enhanced compensation. 2. The first contention of the appellants is that after finding that the monthly salary of Abbas was ` 5,064/-, the Tribunal has taken into account only the basic pay of ` 2,532/for the purpose of calculating loss of dependency. According to the appellants, the entire ` 5,604/- ought to have been taken into account insofar as that is the pay packet per month due to the deceased Abbas from the Government. The next contention of the appellants is that as per the decision in **Sarla Verma v. Delhi Transport Corporation** , 2009 ACJ 1298 (SC), which has been confirmed by a larger bench of the Supreme Court in **Reshma Kumari v. Madan Mohan** , 2013 (2) KLT 304(SC), 50% of the salary should have been added for future prospects insofar as the deceased was a Government employee drawing a m.a.c.a.623/07 - : 3 :- monthly salary with yearly increments. The third contention is that the Tribunal has adopted only five as the multiplier, although the deceased was only 29 years old, which was on the basis of the age of the mother. According to the appellants, in view of the decision of the Supreme Court in **Amrit Bhanu Shali and others v. National Insurance Co. Ltd. and others** , 2012 ACJ 2002, for selecting the multiplier, the age of the deceased is what is relevant. Lastly, it is contended that the Tribunal has, for the first year, deducted one-third and for the balance, one half was deducted. According to the appellants, there is no legal sanction for such a calculation. 3. On the other hand, the learned counsel for the insurance company would argue in support of the impugned award. It is contended that insofar as the basic pay of the deceased was ` 3,125/-, only that amount could have been taken into account for the purpose of calculating loss of dependency. It is submitted that the multiplier was correctly adopted insofar as the 1[st] appellant was aged 54 years. He would further contend that for the entire loss of dependency, 50% should have been deducted for personal expenses of the deceased. m.a.c.a.623/07 - : 4 :- 4. We have considered the rival contentions in detail. 5. The pay packet of a Government employee is not confined to basic pay alone. The entire salary received by the Government employee consisting of basic pay, dearness allowance and other allowances forms the income of the Government employee. Therefore, the entire pay packet, unless the amount paid is for defraying special expenses actually incurred by the Government servant, has to be taken into account as the monthly income. The monthly pay packet of the deceased Abbas was admittedly ` 5,064/-. Therefore, that amount has to be reckoned as the monthly income of the deceased. In **Sarla Verma's case** (supra), the Supreme Court has held that upto to the age of 50, 50% has to be added for future prospects, when the income is steady and there is periodical increase in the monthly income also. Here the deceased was only 29 years old. Therefore, 50% has to be added for future prospects. Consequently, for the purpose of calculating loss of dependency, the monthly income of the deceased has to be taken as ` 5,064/ + ` 2,532 = ` 7,596/-. In **Amrit Bhanu Shali's case** (supra) the Supreme Court has categorically held that the selection of multiplier is based on the age of the deceased and not on the m.a.c.a.623/07 - : 5 :- basis of the age of the dependants. Therefore, since deceased Abbas was 29 years old at the time of death, the multiplier to be adopted is 17. But for the mental incapacity of the 5[th] appellant, except her, the other siblings cannot be held to be dependants of Abbas. If that be so, only the mother and the mentally retarded sister are the dependants of deceased Abbas. Naturally, Abbas would have married after some time. In **Sarla Verma's case** (supra) the Supreme Court has held that when the deceased is a bachelor and the parents are the dependants, 50% has to be deducted for personal expenses of the deceased. In view of the fact that, in this case, the mother and a mentally retarded sister are the dependants, we are inclined to reduce 50% towards personal expenses of the deceased. Calculated thus, the compensation for loss of dependency would be ` 7,74,792/- (` 7,596 x 12 x 17/2). Although the appellants would argue for enhancement of compensation under other heads, we are not inclined to enhance compensation under the other heads. Consequently, the appellants would be entitled to additional compensation of ` 6,99,668/-, which we round off to ` 7 lakhs, over and above what has been awarded by the Tribunal. The said amount would carry interest at the rate of 9% per annum from m.a.c.a.623/07 - : 6 :- the date of the claim petition till the date of payment. The 3[rd] respondent insurance company is directed to deposit that amount also within three months. If, on the basis of this enhanced compensation, any additional court fee becomes payable by the appellants, the Tribunal shall deduct such court fee from the amounts deposited by the insurance company and pay it to the State. The balance shall be deposited in a nationalised bank in fixed deposit deriving interest and the interest accruing thereon shall be disbursed to the 1[st] appellant every month for the maintenance of appellants 1 to 5. With the above modification of the impugned award of the Tribunal, this appeal is disposed of. Sd/S.SIRI JAGAN, JUDGE Sd/sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge. m.a.c.a.623/07 - : 7 :-