M.A.C.A.No.4476 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 MACA NO. 4476 OF 2019** **AGAINST THE COMMON AWARD DATED 31.01.2019 IN OPMV 1529/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR APPELLANT/3RD RESPONDENT IN OP(MV).NO.1529/2015:** M/S.NATIONAL INSURANCE COMPANY LIMITED DOOR NO.19/B, S.R.COMPLEX, RAJAMANI THOTTAM BHAVANI MAIN ROAD, N.H.47, SANDAGIRI, SELEM.P.O, TAMIL NADU STATE, PIIN-673301 REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, PIN -682 016. BY ADV LAL GEORGE ## **RESPONDENTS/PETITIONERS 1 TO 5 IN O.P(MV).NO.1529/2015:** 1 SOUMYA.V.S,AGED 35 YEARS, W/O.DECEASED SOORAJ R, FLAT NO.31, FEDERAL GARDENS, PULINCHUVADU.P.O, ALUVA, ERNAKULAM DISTRICT, PIN-683101. 2 SANJANA(MINOR),AGED 14 YEARS, D/O.DECEASED SOORAJ.R, FLAT NO.31, FEDERAL GARDENS, PULINCHUVADU.P.O, ALUVA, ERNAKULAM DISTRICT REPRESENTED BY HER MOTHER SOUMYHA V.S, AGED 35 YEARS, W/O.DECEASED SOORAJ.R, FLAT NO.31, FEDERAL GARDENS, PULINCHUVADU.P.O, ALUVA, ERNAKULAM DISTRICT, PIN-683101. M.A.C.A.No.4476 of 2019 2 3 MEGHNA (MINOR), AGED 14 YEARS, D/O.DECEASED SOORAJ.R, FLAT NO.31, FEDERAL GARDENS PULINCHUVADU.P.O, ALUVA, ERNAKULAM DISTRICT REPRESENTED BY HER MOTHER SOUMYA.V.S, AGED 35 YEARS, W/O.DECEASED SOORAJ.R, FLAT NO.31, FEDERAL GARDENS, PULINCHUVADU.P.O, ALUVA, ERNAKULAM DISTRICT, PIN-683101. 4 RAVEENDRAN, AGED 69 YEARS, F/O.DECEASED SOORAJ R., FLAT NO.31, FEDERAL GARDENS PULINCHUVADU.P.O, ALUVA, ERNAKULAM DISTRICT-683101. 5 M.B.VALSALA, AGED 64 YEARS, M/O.DECEASED SOORAJ.R, FLAT NO.31, FEDERAL GARDENS PULINCHUVADU.P.O, ALUVA DISTRICT, PIN683101. BY ADV SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON14.09.2021, THE COURT ON 24.09.2021, DELIVERED THE FOLLOWING: M.A.C.A.No.4476 of 2019 3 **“C.R”** ## **A. BADHARUDEEN, J.** ================================ M.A.C.A No.4476 of 2019 ================================ Dated this the 24[th] day of September, 2021 ## **JUDGMENT** National Insurance Company, the original 3rd respondent in the O.P(MV).No.1529/2015, has preferred this appeal challenging award dated 31.1.2019 on the file of the Motor Accident Claims Tribunal, Perumbavoor urging that excess amount was granted towards compensation by the Tribunal. Original petitioners 1 to 5 are the respondents herein. 2. The parties in this appeal will be referred as `insurance company' as well as `petitioners', hereinafter. 3. Briefly spelt, the petitioners, who are legal-heirs and dependents of the deceased Suraj Ravindran, approached the Tribunal and sought compensation to the tune of Rs.80 lakh. According to the petitioners, on 21.10.2015 at about 10.30 p.m while Sooraj Ravindran was riding his scooter bearing M.A.C.A.No.4476 of 2019 4 Registration No.KL-41/H-9695 through the Seaport-Airport road from south to north and when he reached near Poojari corner, he was hit down by a lorry bearing Registration No.TN-52/F-2454 driven by the 2nd respondent in a rash and negligent manner came from behind. Though Sooraj Ravindran was taken to Sunrise Hospital, he succumbed to injuries on the same day. 4. The original respondents 1 and 2, the owner and driver of the lorry bearing Registration No.TN-52/F-2454 were set exparte by the Tribunal. 5. The 3rd respondent insurance company filed written statement admitting valid policy to the lorry. The negligence alleged against the 2nd respondent was denied. The age, occupation and income of the deceased also were disputed. Various claims were opposed. The learned Tribunal tried O.P(MV).No.1529/2015 along with O.P(MV).No.1201/2016 and as per common award dated 31.1.2019, Rs.69,49,800/- was granted as compensation. M.A.C.A.No.4476 of 2019 5 6. The learned counsel for the insurance company Sri. Lal George submitted that the Tribunal granted excess amount by considering Ext.X2 salary certificate of Sooraj Raveendran in its entirety excluding income tax. According to the learned counsel, the gross earnings of the deceased was Rs.34,733/-. But the Tribunal only deducted Rs.700/- towards statutory bonus and Rs.780/- towards income tax. It is specifically pointed out that the Tribunal went wrong in including conveyance allowance, medical allowance and manager allowance as part of income for calculating compensation. 7. Whereas the learned counsel for the petitioners Sri A.N.Santhosh submitted that as per the decision reported in [2011 (2) KLT 451 : 2011 KHC 4321], _**Sunil Sharma & Ors. v. Bachitar Singh & Ors**_ ., the Apex Court held that HRA, CCA and medical allowance are liable to be considered in calculating the income of the deceased. Similarly, EPF and GIS are also to be included M.A.C.A.No.4476 of 2019 6 as part of the income. 8. On reading the above decision, the submission appears to be correct. The learned counsel for the insurance company also conceded this aspect. Therefore, the Tribunal could not be faulted in considering Rs.1,250/- shown as medical expenses in Ext.X2 also as part of the income. 9. The learned counsel for the insurance company zealously opposed inclusion of Rs.9,583/- shown under the head `manager allowance' in Ext.X2. According to the learned counsel, the same also should have been excluded. This submission appears to be not convincing even at the first blush. The rationale is, if a person is given manager allowance while holding the post of a manager, the same is part of his work and the same is liable to be considered for calculating the monthly income. In this connection, the decision reported in [2009(1) KLT 462 : 2009 KHC 4009], _**Oriental Insurance Company Ltd. v. Ram Prasad Varma**_ **& Ors.** is relevant. In this decision it was held by the M.A.C.A.No.4476 of 2019 7 Honourable Supreme Court that the amount which were required to be paid to the deceased by its employer by way of perks should be included for computation of monthly income as that would have been added to his monthly income by way of contribution to the family as contra distinction to the ones who were for his benefit. However, statutory amount of tax paid thereupon must be deducted. Thus there is no justification to reduce managerial allowance considered by the Tribunal for assessing the monthly income. As such this challenge at the instance of the Insurance Company also cannot sustain. 10. The third challenge at the instance of the learned counsel for the insurance company is inclusion of conveyance allowance in Ext.X2. As per Ext.X2 salary certificate proved by examining PW2, the author of the same, it has come out in evidence that the deceased Sooraj Ravindran was working as manager in Indus Ind Bank Ltd. at the relevant time of accident and his gross earnings was Rs.34,733/- inclusive of Rs.3,200/- M.A.C.A.No.4476 of 2019 8 under the head `conveyance allowance'. The learned counsel for the insurance company not cited any precedent to support his contention that conveyance allowance cannot be included as part of income. Similarly, the learned counsel for the petitioners also not produced any decision supporting inclusion of conveyance allowance as part of monthly income. 11. In this scenario, it is necessary to look into various decisions on this point. In this connection it is apposite to refer a 3 Bench decision of the Honourable Supreme Court reported in [(2014) 13 SCC 22 : 2014 KHC 4292 : 2014 ACJ 1416], _**Manasvi Jain v. Delhi Transport Corporation**_ . In this decision, the Honourable Supreme Court considered reduction of GPF, House Rent, GIS and Income Tax from the salary of the deceased as done by the Tribunal and upheld by the High Court. While answering the query, 3 Bench of the Honourable Supreme Court held that _contribution towards income tax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot_ M.A.C.A.No.4476 of 2019 9 _be deducted from the monthly salary of the deceased to decide his net salary or take-home salary._ Another decision reported in [(2010) 12 SCC 378] _,_ _**Shyamwati Sharma & Ors. v. Karam Singh**_ _**& Ors.**_ was referred in this decision. 12. Though the above decision of the Apex Court excludes only income tax, there is no mention as regards to inclusion of conveyance allowance. But the Apex Court held that only income tax is liable to be reduced. In the decision reported in [2020 KHC 2550 : 2020 ACJ 117], _**Hannah Angelin & anr. v. Parveen Travels Pvt. Ltd. & Ors.,**_ a Division Bench of the Bombay High Court reduced conveyance allowance, vehicle maintenance allowance and personal allowance from the income of the deceased. Similarly, a Division Bench of the Karnataka High Court, in the decision reported in [2020 KHC 3834 : 2020 ACJ 1452], _**Devamma & Ors. v. Bharat & anr.**_ , calculated the income after reducing conveyance allowance, variable allowance and professional tax and income tax. Similarly in the decision reported M.A.C.A.No.4476 of 2019 10 in [2019 KHC 2390 : 2019 ACJ 589], _**New India Assurance Co. Ltd. v. Ashish Ravindra Kulkarni & Ors.,**_ another Division Bench of the Bombay High Court excluded conveyance allowance for calculating the monthly income. However, in the decision reported in [2017 KHC 7102 : 2017 ACJ 64], _**Taneja S.K & Ors. v. Amarjeet Singh**_ , Delhi High Court held that the conveyance allowance being part of the terms and conditions of the regular service of the deceased with the bank, the said amount cannot be excluded. In this decision also, death of a Stenographer in Punjab National Bank was the matter considered. In another decision reported in [2015 KHC 6202 : 2015 ACJ 2865], _**Jasvinder Singh & Ors. v. Lovkush Giri & Ors.**_ a single Bench of the Delhi High Court also supported the view that conveyance allowance and other allowances were cash in hand received by the deceased and would have to be counted as part of salary. Thus different High Courts expressed divergent views with regard to inclusion of conveyance allowance as part of net salary for calculating the loss M.A.C.A.No.4476 of 2019 11 of dependency income. 13. It is in this backdrop a detailed discussion with regard to the point argued by the learned counsel for the insurance company to reduce conveyance allowance was required to be made. Otherwise, the seminal query arises for consideration is as to whether conveyance allowance is liable to be included as part of income being perk payable to the employee while calculating monthly income for arriving loss of dependency? In order to give a quietus to the dispute, firstly, it is apposite to refer the note given under second schedule to S.163A of the Motor Vehicles Act, 1988 dealing with compensation for third party fatal accidents/injury cases claims. The note provides that the amount of compensation arrived at on the basis of the table in the schedule in the case of fatal accident claims shall be reduced by 1/3 in consideration of the which the victim would have incurred towards expenses maintaining himself had he been alive. Although the second schedule provided under Section 163A of M.V Act is for M.A.C.A.No.4476 of 2019 12 calculating compensation under the principle of no fault, the same schedule has been following as the guideline by assessing compensation in a claim under Section 166 of the M.V Act as well, subject to judicial pronouncements with modifications. 14. In a constitution Bench decision in [(2017) 16 SCC 680], _**National Insurance Company Ltd. v. Pranay Sethi & Ors.**_ , deduction towards personal and living expenses, as embodied in paragraphs 30 to 32 of [(2009) 6 SCC 121], _**Sarla Verma (SMT) & Ors. v. Delhi Transport Corporation & anr.,**_ is quoted with approval and it was held that the said deduction to be followed. Paragraphs 30, 31 and 32 of _**Sarla Verma'**_ s case _(supra_ ), being relevant, are extracted here under: _“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** , 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, one-fourth (1/4th) where the number of dependent family member 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_ M.A.C.A.No.4476 of 2019 13 _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 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 dependant on the income of the deceased, as in a case where he has a widow mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family to be taken as two-third. “_ 16. In this context it is necessary to discuss about medical allowance granted to an employee. As I have already pointed out, in _**Sunil Sharma**_ 's case ( _supra_ ), the Apex Court held that medical allowance also to be included while calculating income of the deceased. Medical allowance given to an employee can be held as one given to the employee for his medical attendance, or else, for the benefit of the employee and his family together. This is the rationale by which the Apex Court held that medical allowance M.A.C.A.No.4476 of 2019 14 also to be added to the monthly income. Coming to conveyance allowance, the position is not so different as conveyance allowance given to an employee can be held as one given to the employee for his own use or else for the benefit of the employee and his family together. It is difficult to lay down a principle that conveyance has been given for the use of the employee alone and the employee must use conveyance allowance for his own in its entirety and he cannot use the same for his family. Therefore, I am of the considered view that deduction from the total salary has to be made only in relation to the tax payable by the employee and all other perks shall be counted while fixing the monthly income of the employee/deceased as per the salary certificate issued. In view of the matter, I am to hold that except tax, all other perks inclusive of conveyance allowance, manager allowance, HRA, CCA, medical allowance, EPF and GIS given by an employer to an employee are liable to be included for the purpose of arriving at the net monthly income, to calculate the loss of dependency income. 15 M.A.C.A.No.4476 of 2019 The above discussion would lead to the conclusion that conveyance allowance included by the Tribunal for calculating the monthly income of the deceased is liable to be justified. In consequence thereof, the contention raised by the learned counsel for the insurance company canvassing reduction of conveyance allowance from the monthly salary of the deceased is liable to fail. 17. Another challenge raised by the learned counsel for the insurance company is that 50% addition to the actual salary permissible to a permanent job, as approved in _**Pranay Sethi**_ 's case ( _supra_ ), cannot be given in this case and therefore, the Tribunal went wrong in adding 50% more under the head, instead of adding 40% alone in the case of Sooraj Raveendran since he was not a permanent employee of the bank. This argument is vehemently opposed by the learned counsel for the petitioners on the submission that going by the evidence of PW2, the author of Ext.X2, supported by Exts.X1 and X2, the status of Sooraj Raveendran as that of a permanent employee in a recognised bank M.A.C.A.No.4476 of 2019 16 is established and therefore there is no justification to reduce the same to 40% instead of 50%. I find merit in the submission of the learned counsel for the petitioners. Here, undisputedly Sooraj Raveendran was an employee of Indus Ind Bank Ltd., Kakkanad Branch during the time of his death. It is true that Indus Ind Bank is not a nationalised bank. Its status is that of a private bank. However, Indus Ind Bank has been operating business in India at par with a scheduled bank and as such there is no reason to hold that the status of an employee in the said bank is not permanent. Therefore, I am to hold that 50% of addition given by the Tribunal treating the deceased as a person having permanent job also is not liable to be interfered. 18. In view of the discussion, none of the contentions raised by the insurance company are liable to be accepted. Consequently, the impugned award is not liable to be interfered in any manner. Therefore, the appeal deserves dismissal and I do the same. In the result, the appeal fails and is accordingly dismissed. M.A.C.A.No.4476 of 2019 17 There is no order as to costs, considering the particular nature of this case. _Sd/-_ ## _**A. BADHARUDEEN, JUDGE**_ rtr/