MRS. NANDANA T PAI v. XAVIER O.P., Vibin Xavier, Oriental Insurance Co. Ltd., Rajeswari Devi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939** **MACA.NO. 1099 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.1155/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 01-10-2014** **---------------------------** ## **APPELLANT(S)/CLAIMANT :** **MRS. NANDANA T PAI., AGED 37 YEARS, W/O.LATE RAJEEV G. AND D/O.M.A.T.PAI, NOW RESIDING AT NANDINI, S.R.M.ROAD, COCHIN-682 018, ERNAKULAM DISTRICT.** **BY ADVS.SRI.M.A.T.PAI SRI.C.K.PAVITHRAN** ## **RESPONDENT(S)/RESPONDENTS 1 TO 4:** **---------------------------------** **1. XAVIER O.P., PROPRIETOR, THUSHARA MARBLES AND GRANITES PALACE, ARUMURICKADA, KUNDARA, KOLLAM-691 501.** **2. VIBIN XAVIER, AGED 36 YEARS, S/O.XAVIER O.P. RESIDING AT OLATTUPURATHU HOUSE, CHETTIKKADU, KUNJITHAI, VADAKKEKARA PANCHAYAT, N.PARAVUR, ERNAKULAM DISTRICT, PIN-683 522.** **3. THE ORIENTAL INSURANCE CO. LTD. KOLLAM BRANCH - 691 008.** **4. MRS. RAJESWARI DEVI,** **AGED 70 YEARS, W/O.GOVINDA NAICKEN, NAICKEN PARAMBIL HOUSE, EZHUPUNNA-688 543, ALAPPUZHA DISTRICT.** **R4 BY ADV. SRI.SIBI THOMAS JACOB BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.1099 of 2015 ---------------------------------Dated this the 12[th] day of March, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1155 of 2012 of the Motor Accidents Claims Tribunal, Ernakulam by the dependant of the deceased Rajeev who met with an accident on 23.08.2011 at Eramalloor Junction, while undergoing treatment at Lakeshore Hospital, he succumbed to the injuries. The learned tribunal awarded an amount of Rs.28,53,984/(Rupees Twenty Eight Lakh Fifty Three Thousand Nine Hundred and Eighty Four only) as compensation. Being dissatisfied with the award amount, wife of the deceased preferred this appeal disputing the quantum. 2. Learned counsel appearing for the appellant contended that the deceased was working as the Assistant Sales Manager in Popular Vehicle and Services (P) Limited and was getting an amount of Rs.21,927/- per month, but the learned tribunal took only Rs.13,927/- as his monthly income for calculating the dependency, which is a meagre one and no amount was awarded under the ## M.A.C.A. No.1099 of 2015 2 heads of Funeral Expenses and Loss of Estate. 3. The learned counsel for the insurer contended that the deceased was working in a private firm and in view of the decision in **National Insurance Company Limited** V. **Pranay Sethi [2017 (4) KLT 662 (SC)]** 40% of the income has to be added along with the income, but the tribunal added 50% along with the income, hence that has to be reduced to 40%. The salary of Rs.21,927/- was based upon performance and target. If he did not complete the target, he will not get the additional incentive of Rs.8,000/- and the learned tribunal rightly reduced that amount. If that be the position, just amount was awarded for dependency. But on the other head, loss of consortium excess amount was awarded by the tribunal. 4. The insurer admitted the accident. The only dispute is with regard to the income stated by the appellant alone. It is true that appellant lost her husband at a young age which was not disputed by the insurer. Apex Court in **Sarla Verma** v. **Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** held as follows: ## M.A.C.A. No.1099 of 2015 3 “ In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent hob and was below 40 years. (where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made in rare and exceptional cases involving special circumstances. ## 5. Apex Court in **National Insurance** ## **Company** V. **Pranay Sethi [2017 (4) KLT 622]** held as ## follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla ## M.A.C.A. No.1099 of 2015 4 Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for M.A.C.A. No.1099 of 2015 5 applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 6. Therefore, while calculating compensation, future prospects has to be included so as to award just amount as compensation. The deceased was holding a permanent job, but nothing was stated about his annual increment and the insurer has no dispute or doubt with regard to the increment and future prospects. The deceased was getting a fixed salary, but additional income of Rs.8,000/- will be disbursed to him as the incentive on the basis of attaining the target. Therefore, future prospects of his continued service in Popular Vehicle and Services (P) Limited has also to be considered while fixing the dependency compensation and also consider the principle of standardization and the hike in price index. In view of the decision of the Apex Court in **National Insurance Company Limited** V. **Pranay Sethi [2017 (4) KLT 662 (SC)]** 40% of the ## M.A.C.A. No.1099 of 2015 6 income should be taken in addition to the income where the deceased was employed or getting a fixed salary. 7. Apex Court in **Dixit Kumar and Ors. v. Om Prakash Goel (2017 ACJ 2057)** held that the reduction of income by the tribunal in the absence of evidence is unsustainable. Therefore, the reduction of income from Rs.21,927/- to Rs.13,927/- is unsustainable. PW1 deposed that as per Ext.A9 salary certificate, the deceased was getting basic pay of Rs.10,750/- and Dearness Allownace of Rs.3,177/- and in addition to that, he is entitled to get an incentive of Rs.8,000/- based upon his achieving the target. No evidence has been adduced by the respondents to prove the reduction or achieving the target. If that be the position, it may vary from month to month. If additional amount of Rs.8,000/- per month is to be taken, it is the duty of the appellant to prove that point also. In the absence of such evidence, the oral testimony of PW1 based upon Ext.A9 itself is not sufficient to take Rs.8,000/- as his monthly incentive along with basic pay and D.A. It is true that from year to year there was increase in the DA of a permanent employee, which was ## M.A.C.A. No.1099 of 2015 7 also not considered by the tribunal. The variation in incentive was also not proved. If that be the position, the income taken by the tribunal Rs.13,927/- has to be increased. Considering the increase in the price index and increase in the DA, instead of Rs.8,000/-, I find it reasonable to take Rs.5,000/- as additional incentive per month for calculating just compensation. Therefore, the monthly income comes to Rs.18,927/- (13927+5000). Along with that , 40% has to be added i.e, Rs.7,570/(18927x40%). Therefore the total monthly income comes to Rs.26,497.80/-, which is rounded as Rs.26,498/-. Accordingly, the total dependency comes to Rs.33,91,744/- (26,498x12x16x2/3). The learned tribunal awarded an amount of Rs.26,73,984/-. The balance is Rs.7,17,760/- for loss of dependency. 8. In view of the decision of the Apex Court in **Pranay Sethi** (Supra), the claimants are entitled to get only Rs.40,000/- for Loss of Consortium. The tribunal awarded Rs.1,00,000/- for Loss of Consortium, which is an excess amount. No amount was awarded by the tribunal under the heads Loss of Estate and Funeral ## M.A.C.A. No.1099 of 2015 8 Expenses. Hence an additional amount of Rs.15,000/each is awarded on those heads and an additional amount of Rs.2,000/- is awarded for damages to clothing. Hence an amount of Rs.60,000/- has to be deducted and the balance is Rs.6,89,760/- (7,49,760-60,000). Accordingly, the claimant and 4[th] respondent are entitled to get an additional amount of Rs.6,89,760/- with 7% interest per annum from the date of petition till realisation with proportionate cost, in addition to Rs.28,53,984/- (Rupees Twenty Eight Lakh Fifty Three Thousand Nine Hundred and Eighty Four only) awarded by the tribunal. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest per annum from the date of default. This M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge