National Insurance Company Ltd. v Mareena Thomas & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2017/12TH MAGHA, 1938** ## **MACA.No. 861 of 2013 ()** **-----------------------AGAINST THE AWARD IN O.P(MV) NO.681/2009 of M.A.C.T.,KOTTAYAM DATED 28-01-2013** **..............................** **APPELLANT(S)/3RD RESPONDENT :** **-------------------------------------------------** **NATIONAL INSURANCE COMPANY LTD., KOTTAYAM NOW PRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI -35.** ## **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT(S)/PETITIONERS :** **---------------------------------------------** **1. MAREENA THOMAS, W/O. LATE C.V. THOMAS, CHEMBISSERIL HOUSE, MAMMANAM P.O., ATHIRAMPUZHA VILLAGE, KOTTAYAM -686 320.** **2. GEOFF THOMAS (MINOR), S/O. LATE C.V. THOMAS, CHEMBISSERIL HOUSE, MAMMANAM P.O., ATHIRAMPUZHA VILLAGE, KOTTAYAM -686 320.** **3. JERRY THOMAS (MINOR) S/O. LATE C.V. THOMAS CHEMBISSERIL HOUSE, MAMMANAM P.O., ATHIRAMPUZHA VILLAGE, KOTTAYAM -686 320.** **4. PRIYANKA THOMAS (MINOR), D/O. C.V. THOMAS, CHEMBISSERIL HOUSE, MAMMANAM P.O., ATHIRAMPUZHA VILLAGE, KOTTAYAM -686 320.** **5. PHILOMINA, W/O. VAKKACHAN, CHEMBISSERIL HOUSE, MAMMANAM P.O. ATHIRAMPUZHA VILLAGE, KOTTAYAM -686 320. (MINOR RESPONDENTS ARE REPRESENTED BY THEIR MOTHER THE IST RESPONDENT)** **R1-R5 BY ADV. SRI.V.G.ARUN R1-R5 BY ADV. SRI.T.R.HARIKUMAR R1-R5 BY ADV. SMT.S.R.NEETHU RAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMV** ## **C.K.ABDUL REHIM** ## **&** ## **SHIRCY.V, JJ.** **..................................................** ## **M.A.C.A No.861 of 2013** **...................................................** **Dated this the 1[st] day of February, 2017** ## **JUDGMENT** ## **C.K.ABDUL REHIM, J.** The 3[rd] respondent before the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV) No.681 of 2009 is in appeal against the Award, to the extent of challenging the amount of compensation awarded as excessive. The accident in question occurred on 11.01.2009, when the deceased Thomas, who was riding on a Motor Cycle, was hit by a Bus. He succumbed to the injuries sustained on his way to the Hospital. There is no dispute regarding the findings on the aspects of negligence on the part of the driver of the Bus, to which the appellant herein is the insurer and regarding liability of the appellant for payment of the compensation. The only dispute is regarding the quantum of compensation awarded. 2. Learned Senior Counsel appearing for the appellant contended that, the Tribunal went highly erred in accepting Ext.P7 towards proof of the income of the deceased. It is pointed out that the M.A.C.A No.861 of 2013 2 claimants have failed to produce any salary certificate to prove the occupation and income of the deceased and hence computation made by the Tribunal based on Ext. A7 cannot be sustained, is the contention. 3. It is evident that the deceased was working as a sales officer in Hindustan Unilever Limited, which is a multinational company. He was aged 39 years at the time of the accident. Ext.A7 is the certificate issued by the employer under Section 203 of the Income Tax Act, in Form No.16. The Tribunal adopted the said document as proof of income of the deceased. We are not persuaded to accept the contention of the appellant that the Tribunal went erred in accepting Ext.P7 as proof of the income. This is especially because, Form No.16 is a statutory statement issued under Section 203, and it bears signature and seal of the competent authority in the employer's company, who is responsible for deducting the income tax at source. We notice that the Tribunal has taken the gross salary as shown in Ext.A7, as the salary drawn by the deceased for three quarters (9 months). But on a perusal of Ext.A7 we are convinced that the Tribunal had committed an error in adopting the gross salary shown therein as salary drawn for 9 months. Actually the amount of 5,68,613/- shown in the statement is the gross salary₹ drawn by the deceased with respect to the accounting year 2007 M.A.C.A No.861 of 2013 3 - 2008; i.e., from 01.04.2007 to 31.03.2008. We further noticed that the gross salary drawn for the said period is not 5,68,613/-₹ but 5,22,562/-. The Tribunal added 50% of the amount for the₹ purpose of fixing the multiplicand, considering future prospects in the career of the deceased. 4. The learned Senior counsel appearing for the appellant contended that the adoption of 50% towards future prospects is on the higher side. It is also contended that the Tribunal had not considered the question of liability for payment of income tax from the enhanced salary. Per contra, learned counsel for the respondents/claimants contended that, considering the age of the deceased and the status and reputation of the company wherein he was working, the enhancement of 50% on the monthly salary adopted by the Tribunal towards future prospects is quite reasonable and justifiable. 5. It is true that the respondents/claimants have not produced any Employment Certificate. Therefore the date of superannuation of the deceased is not clearly discernible. However it is not in dispute that the deceased was aged 39 years at the time of the accident. So at the most he might have continued in service for a further period of 20 years, had he been alive. M.A.C.A No.861 of 2013 4 6. Learned senior counsel for the appellant insurance company placed reliance on the decision of the Hon'ble Supreme Court in **Sarla Verma vs. Delhi Transport Corporation (2010) 2 KLT 802 (SC).** In the said decision the Apex Court, after referring to its earlier cases in **KSRTC vs. Susamma Thomas (1994) 2 SCC 176** and in **Sarla Dixit vs. Balwant Yadav (1996) 3 SCC 179** and some other cases, observed that, 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 standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. The Apex court further observed that, 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 only in rare and exceptional cases involving special circumstances. 7. Based on the above cited decisions, it is contended on behalf of the appellant that only 30% addition can be made, since the deceased was aged 39 years. But learned counsel appearing for the respondents/claimants cited a later decision of the Hon'ble M.A.C.A No.861 of 2013 5 Supreme Court in **Rajesh and others vs. Rajbir Singh and Others (2013) 9 SCC 54.** In the said case Hon'ble Supreme Court after referring to Sarla Verma's case (cited supra) and various other decisions of the Apex Court held that in cases of self employed or persons with fixed wages, in any cases where the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased, while computing future prospects. Needless to say that the actual income should be the income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years. 8. While considering the rival contentions, we take note of the fact that the deceased was at the age of 39. Hence we are inclined to uphold the enhancement of 50% granted by the Tribunal towards future prospects. However, it is to be noticed that the component of income tax need to be deducted while calculating the net salary. Evidently at the time of death the total gross salary was 5,22,562/- and amount of 32,010/- was deducted₹ ₹ towards income tax. On an approximate estimation, we are of the view that 50% of the amount of Income Tax can be added for deduction from the total salary. Thus, we find that the gross salary of the deceased can be taken as 7,83,843/- (₹ ₹5,22,562/- + M.A.C.A No.861 of 2013 6 50%). An amount of 48,015/- (₹ ₹32,010/- + 50%) need to be deducted towards the income tax component. Hence, we are inclined to fix the net salary to be adopted for the purpose of computing the loss of dependency at 7,35,828/- per year. After₹ deducting ¼[th] towards personal expenses, the multiplicand can be worked out to 5,51,871/-. There is no dispute that the₹ correct multiplier to be adopted is 15. Hence the amount to be awarded under the head of loss of dependency is re-fixed at ₹ 82,78,065/- (₹5,51,871x15). 9. The learned counsel for the respondents/claimants contended that the amount awarded by the Tribunal towards loss of consortium and loss of love and affection to respondents/claimant Nos.2 to 4 are grossly inadequate and unreasonable. It is also contended that the amount of 5,000/-₹ awarded towards funeral expenses is inadequate. Hence the respondents/claimants sought for an enhancement in the amount of compensation awarded under those heads. - 10.The above request was opposed by the learned Senior counsel appearing for the appellant insurance company, contending that there is no appeal or cross objection filed by the respondents/claimants and hence this Court cannot grant any enhancement in the amount of compensation awarded. Learned M.A.C.A No.861 of 2013 7 counsel for the respondents/claimants have cited a Division Bench decision of this Court in **K.Velunni vs. Premalatha and** **others 1989 (2) ACC 593.** Referring to the provisions contained in order XLI Rule 33 of the Code of Civil Procedure, it is pointed out that, the appellate court shall have the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondent or parties, although such respondents or parties may not have filed any appeal or objection. It was observed that, even a bare reading of the above said provision is sufficient to convince anyone that the wide wordings are intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent, but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to give such other relief to any of the respondents as the case may require. While this Court was dealing with an appeal in a motor accident claim, the court had rectified the error committed by the Tribunal even without an appeal or cross objection. M.A.C.A No.861 of 2013 8 Observing that, the contention that if a party who could have filed a cross objection under Order XLI, Rule 22 of the CPC has not done so, the appellate court can under no circumstance give him relief, cannot be accepted. 11.Considering the dictum laid as mentioned above, we are of the opinion that the error committed by the court below in granting only meagre amounts under the heads specified above, can be rectified by this Court, even without the respondents/claimants filing any cross objection in that respect. Hence, we are inclined to re-fix the amount of compensation under the heads of loss of consortium and loss of love and affection at 1,00,000/- each.₹ The amount of 5,000/- awarded by the Tribunal towards funeral₹ expenses will stand modified to ₹25,000/-, thus the total compensation awarded by the Tribunal is re-fixed at ₹85,16,065/-. - 12.Under the above mentioned circumstances, the appeal is allowed to the extent of modifying the award reducing the total compensation for which the respondents/claimants are entitled to 85,16,065/-. The said amount will carry interest @7.5% p.a.₹ from the date of the claim petition till realisation. The appellant insurance company is directed to deposit the said amount, less the amount if any already paid, within a period of two months. M.A.C.A No.861 of 2013 9 It is made clear that on deposit of the amount, the respondents/claimants will be at liberty to approach the Tribunal seeking withdrawal of the amount. In such cases the Tribunal shall pass appropriate orders taking into consideration of the proportion at which the claim amount was ordered to be shared between the respondents/claimants and also taking note of the limit prescribed with respect to the withdrawal. Sd/- **(C.K.ABDUL REHIM , JUDGE)** sd/- **(SHIRCY.V., JUDGE)** AMV/04/02/2017 /TRUE COPY/ P.A.TO JUDGE