Omanakkunjamma and Others v. Jose P Simon and Others

``` 2025:KER:22961 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE EASWARAN S. ``` ``` FRIDAY, THE 7[TH] DAY OF MARCH 2025/16[TH ]PHALGUNA, 1946 ``` ``` MACA NO.2742 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.761 OF 2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANTS/PETITIONERS`** - **`1 OMANAKUNJAMMA, AGED 59 YEARS,`** ``` W/O. CHELLAPPAN, THANDARAPPALLIL HOUSE, THALAYOLAPARAMBU P.O., VADAYAR VILLAGE, VAIKOM, KOTTAYAM DISTRICT-686 605. ``` - **`2 NISHA T.C., AGED 35 YEARS,`** - **`D/O. CHELLAPPAN, THANDARAPPALLIL HOUSE, THALAYOLAPARAMBU P.O., VADAYAR VILLAGE, VAIKOM, KOTTAYAM DISTRICT-686 605.`** - **`3 HARIKRISHNAN T.C., AGED 27 YEARS,`** - **`S/O. CHELLAPPAN, THANDARAPPALLIL HOUSE, THALAYOLAPARAMBU P.O., VADAYAR VILLAGE, VAIKOM, KOTTAYAM DISTRICT-686 605.`** ``` BY ADVS. THOMAS ABRAHAM (NILACKAPPILLIL) ABRAHAM THOMAS ``` ## **`RESPONDENTS/RESPONDENTS`** - **`1 JOSE P SIMON, AGED 48 YEARS,`** ``` S/O. P.M. SIMON, PULLATTUKALAYIL HOUSE, KAIPUZHA P.O., KOTTAYAM DISTRICT-686 602. ``` ``` 2025:KER:22961 ``` ``` M.A.C.A No.2742 of 2021 ``` ``` 2 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2MANKOMBU GRANITES, REPRESENTED BY ITS MANAGING PARTNER, WARD NO.IV, 194, MOONNILAVU, VALLARA P.O., KOTTAYAM DISTRICT-686 586. ``` - **`3 THE MANAGER THE ORIENTAL INSURANCE CO. LTD., KANJIRAPPALLY P.O., KOTTAYAM DISTRICT-686 507.`** ``` 4AKHILA, W/O. VISHNU, DWARKA HOUSE, VADAKARA KARA, VELLOOR VILLAGE, KOTTAYAM DISTRICT-686 605. ``` ``` BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE GEORGE A.CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:22961 ``` ``` M.A.C.A No.2742 of 2021 ``` ``` 3 ``` **==> picture [57 x 57] intentionally omitted <==** ## **JUDGMENT** The mother and siblings of the deceased Vishnu has come up with the present appeal for seeking enhancement of the compensation. The facts presented before this court is quite amusing in the sense that two different claim petitions were preferred for a claim of compensation on account of the death of Vishnu, who was working as a clerk in the Union Bank of India. At one hand, the wife and the minor child of the Vishnu preferred O.P (MV) No.593 of 2018 whereas the mother and two siblings of late Vishnu preferred O.P(MV) 761 of 2018. Both were tried jointly. Ext. A1 to A21 documents were marked in common and the statement of accounts from the Sub Treasury Office, Vaikom were marked as Ext.B1 from the side of the Insurance company. The claimants contended that the deceased Vishnu was working as clerk in the Union Bank of India and the salary slip was produced and marked as Ext.A4, as evidence to show that the deceased Vishnu was drawing a monthly income of ``` 2025:KER:22961 ``` **==> picture [57 x 57] intentionally omitted <==** ## `M.A.C.A No.2742 of 2021` ``` 4 ``` Rs.23,883/-. The Tribunal on appreciation of Ext.A4 salary slip proceeded to fix the annual income of deceased Vishnu at Rs.2,59,140/- after deducting 2% of income tax and professional tax. Thus, the claimants were found to be entitled for compensation and was granted the following compensation: |Sl.<br>No|Head of claim|Amount<br>claimed<br>(Rs)|Amount<br>awarded<br>(Rs.)|Basic-vital<br>details in nut<br>shell| |---|---|---|---|---| |1|Loss of earning|......|.....|| |2|Transport to hospital|10,000|4,000|| |3|Medical expense|.....|........|| |4|Extra nourishment|2,000||| |5|Damage to clothing|3,000|1,000|| |6|Pain and sufferings|50,000|15,000|On a reasonable<br>evaluation| |7|Funeral expenses|50,000|15,000|National<br>Insurance<br>v.Pranay Sethi -<br>2017(5)KHC<br>350(SC)| |8|Loss of consortium to<br>the petitioners||40,000<br>40,000|(Magma General<br>Insurance<br>Co.Ltd.Vs. Manu<br>Ram @Chuhru<br>Ram)| |9|Compensation<br>for<br>loss of love and<br>affection|2,00,000|Not allowed|......| |10|Compensation<br>for<br>loss of dependency|75,00,00<br>0|44,05,380|| |11|Compensation<br>for<br>loss<br>of<br>future|2,00,000|.........|| ``` 2025:KER:22961 ``` **==> picture [57 x 57] intentionally omitted <==** |`2025:KER:22961`|`2025:KER:22961`|`2025:KER:22961`|`2025:KER:22961`|`2025:KER:22961`| |---|---|---|---|---| |`M.A.C.A No.2742 of 2021`<br>`5`||||| ||prospectus of the<br>deceased in career|||| |12|Compensation<br>for<br>loss of care and<br>support<br>to<br>the<br>petitioners|2,00,000||| |13|Loss of estate|2,00,000|15,000|National<br>Insurance<br>v.Pranay Sethi-<br>2017 (5) KHC<br>350 (SC)| ||Total Claim limited to|80 lakhs|Rs.45,35,380|| 2. In the present appeal this court is concerned about the claim of the mother and the siblings alone. Pertinently, it must be noticed that at the instance of the appellant when this court admitted the appeal on 20.10.2021 notice to respondents 1, 2 and 4 were dispensed with thereby meaning that notice to the wife of the deceased was dispensed with. The minor child is not made a party to the proceedings. However that by itself need not deter this court from considering the sufficiency of the compensation because if this Court is of the ultimate view that the compensation on account of death of late Vishnu has to be enhanced the same will enure to the benefit of his **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:22961 ``` ``` M.A.C.A No.2742 of 2021 ``` ``` 6 ``` wife and minor child. For this back drop, this Court proceed to consider the appeal on merits. 3. Heard Sri. Thomas Abraham learned Counsel appearing for the appellant and Sri. George A Cherian learned Counsel appearing for the Insurance company. 4. On a consideration of the rival submissions raised across the Bar, this Court finds that the appellants are entitled to succeed on the limited ground of fixation of the dependency compensation. It is beyond dispute that the deceased Vishnu was drawing a monthly income of Rs.23,883/- as evident from Ext.A4 salary slip. Rs.15/- was deducted for each month towards TDS. The Tribunal on contrary proceeded to deduct 2% towards the income tax and Rs.3,000/- towards professional tax. The aforesaid procedure cannot be subscribed by this Court in the light of the decision in _**Reliance General Insurance, Kochi Vs Bindu**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:22961 ``` ``` M.A.C.A No.2742 of 2021 ``` ``` 7 ``` _**[2025 KHC 228]**_ wherein this Court laid down the principles by which the Tribunals are to be guided in the matter of fixation of income. The liability of the victim to pay tax on receipt of the salary cannot be deducted by the Tribunal while calculating the compensation towards loss of dependency. Viewed in the above perspective, this court cannot sustain the findings of the Tribunal in deducting the amount towards income tax and professional tax which is not covered under Ext.A4 salary slip. 5. A further perusal of the salary slip shows an amount of Rs.23,883/- as the amount received by late Vishnu deducting Rs.15, the amount will come to 23,868/-. Since the deceased was permanently employed the Tribunal erred egregiously in granting only 40% of future prospects whereas the same ought to have been at 50% going by the table fixed by the Supreme Court in _**Sarla**_ ## _**Verma v. Delhi Transport Corporation & Another**_ ``` 2025:KER:22961 ``` **==> picture [57 x 57] intentionally omitted <==** `M.A.C.A No.2742 of 2021` _**[(2009) 6 SCC 121].**_ ``` 8 ``` 6. Insofar as the first appellant here is concerned it is seen that no compensation was granted under the head loss of consortium. To that extend also the appellant is entitled to succeed. 7. In the result, the appeal is allowed. The award passed by the Tribunal in O.P M V No.761/2018 and O.P M V No.593/2018 is modified as follows: a. Adding 50% future prospects, the income of the deceased comes to an amount of Rs.35,802/- (23,868+(23,868 x 50/100)) b. The appellant is entitled for a compensation of Rs.4,63,692/- (35,802 x 12 x 17 x 2/3 - 44,05,380) towards loss of dependency. c. The appellant is entitled to have a compensation of Rs.3,000/- (18,000-15,000) under the head funeral expense. d. The appellant is entitled to have a **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:22961 ``` ``` M.A.C.A No.2742 of 2021 ``` `9` compensation of Rs.16,000/- (48,000 x 2-(40,000 + 40,000) under the head Loss of consortium to wife and child. e. The appellant is entitled to have a compensation of Rs.48,000/-under the head loss of consortium to mother. f. The appellant is entitled to have a compensation of Rs.3,000/-(18,000-15,000) under the head loss of estate. Thus a total of Rs.5,33,692/-(Rupees five lakhs thirty three thousand six hundred and ninety two only) is awarded as the enhanced compensation together with interest at 8% per annum from 23.06.2018 till realization with proportionate cost. Since the appellant has not taken notice to the wife and the minor child who has not been made a party, this Court has no other alternative but to reject the request of the appellant for enhancement in respect **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:22961 ``` ## `M.A.C.A No.2742 of 2021` `10` of proportion under which the amount of compensation has to be shared. Therefore this Court confirms the rate at which the amount has to be apportioned as fixed by the Tribunal. While calculating the appellants proportion towards the enhanced compensation, the compensation granted by this Court under the head loss of consortium shall not be taken into consideration. The insurance company shall deposit the amount within two months from the date of receipt of a copy of this judgment. The Tribunal shall issue notice to the claimants in O.P(MV) No.761/2018 before releasing the amounts. Cak Sd/- **EASWARAN S. JUDGE**