P.P. Karthiyani and others v. M.I. Ibrahim Basheer and others and The United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 MACA.No. 301 of 2007() ---------------------OPMV.83/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONERS IN OP(MV) ----------------------------------- 1. P.P.KARTHIYANI, W/O.LATE AYYAPPANKUTTY, KIZHAKKANA KARTOTE HOUSE,FACT CO;LONY VELOOR KARA, P.O.,PUTHENCRUZ,KARIMUGAL VILLAGE, ERNAKULAM DISTRICT. 2. K.A.SUBRAMANIAN, S/O.LATE AYYAPPANKUTTY,KIZHAKKANA KAROTE HOUSE, FACT COLONY, VELOOR KARA P.O. PUTHENCRUZ, KARIMUGAL VILLAGE,ERNAKULAM DISTRICT. 3. K.A.SUNIL KUMAR,S/O.LATE AYYAPPANKUTTY, KIZHAKKANA KAROTE HOUSE, FACT COLONY,VELOOR KARA, P.O.PUTHENCRUZ, KARIMUGAL VILLAGE,ERNAKULAM DISTRICT. 4. K.A.SUDHEESH KUMAR, S/O.LATE AYYAPPANKUTTY, KIZHAKKANA KAROTE HOUSE,FACT COLONY, VELOOR KARA, P.O.PUTHENCRUZ,KARIMUGAL VILLAGE, ERNAKULAM DISTRICT. 5. K.A.SUJITHA,D/O.LATE AYYAPNAKUTTY, KIZHAKKANA KAROTE HOUSE,FACT COLONY, VELOOR KARA, P.O.PUTHENCRUZ,KARIMUGAL VILLAGE, ERNAKULAM DISTRICT. 6. KALI,W/O.LATE KOCHOL, KIZHAKKANA KAROTE HOUSE,FACT COLONY, VELOOR KARA,P.O.PUTHENCRUZ, KARIMUGAL VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH .......2 -: 2 :- RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------ 1. M.I.IBRAHIM BASHEER, MENAMTHURUTHIL HOUSE,EDATHALA P.O., PERUMBAVOOR. 2. M.M.SHAJAHAN, S/O.MAKKARU PILLAI, MAROTTICKAL HOUSE,NEAR THAQUDEES HOSPITAL, AMBUNADU KARA,KIZHAKKAMBALAM. 3. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE-I, VETTUKATTIL BUILDING, KOCHI-16. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R.3 SRI.P.JACOB MATHEW FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No.301 of 2007-A ------------------------------------------------Dated this the 19[th] day of January, 2010** ## **JUDGMENT** ## **Basant,J.** The claimants are the appellants. They are the widow aged 42 years, four children aged 25 years, 23 years, 19 years and 16 years and the mother aged 79 years of the deceased person aged 48 years. He suffered injuries in a motor accident which took place on 1/12/01 and succumbed to those injuries later on the same date. He was employed as a Mazdoor in the Hindustan Organic Chemicals Ltd., as a permanent employee and was earning an income of Rs.9,964/- per mensem as salary. The claimants claimed an amount of Rs.12 lakhs as compensation. The Tribunal, by the impugned award, directed payment of only an amount of Rs.5,40,500/- as compensation as ## **M.A.C.A. No.301 of 2007** -: 2 :- per the details shown below: |“Transport to hospital|-|Rs. 1,000/-| |---|---|---| |Funeral expenses|-|Rs. 2,000/-| |Loss of estate|-|Rs. 2,500/-| |Loss of consortium|-|Rs. 10,000/-| |Pain and sufferings|-|Rs. 5,000/-| |Loss of dependency||| |5000 x 12 x 2 x 13|-|Rs.5,20,000/-| |3||| |||-------------------| |Total|-|Rs.5,40,000/-”| |||========| 2. The appellants claim to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellants want to mount against the impugned award, the learned counsel for the appellants submits that primarily the appellants are aggrieved by the inadequate multiplicand reckoned by the Tribunal to arrive at the compensation under the head of loss of dependency. There was unassailable evidence to indicate that the gross monthly income was Rs.9,964/-. This was proved by Ext.A8 salary certificate issued by the Hindustan Organic Chemicals Ltd. The salary certificate shows the break up of the said amount of Rs.9,964/- as follows: - “Basic Pay Rs. 5,785.00 VDA - 1,932.00 |**M.A.C.A. No.301 of 2007**|-: 3 :-|| |---|---|---| |HRA|-|1,302.00| |CCA|-|100.00| |Washing Allowance|-|75.00| |Nutrition Allowance|-|145.00| |RCE|-|625.00| |||-------------| |Total|-|Rs. 9,964.00| |||======”| The deceased was born on 17/12/1953 and his death had taken place on 1/12/01. 3. The learned counsel argues that the Tribunal with no possible reason reduced the monthly gross income of Rs.9,964/to Rs.5,000/- and reckoned that as the multiplicand. By no stretch of imagination can the said computation be held to be correct, contends the learned counsel. The multiplier was rightly taken at 13 as the directly dependent family consisted of the wife and the minor child and aged mother in addition to the deceased, 1/3[rd] was deducted for the personal expenses of the deceased and we find the said approach to be justified by the dictum in **Sarla Verma v. DTC** ((2009) 6 SCC 121). The question is whether reckoning of Rs.5,000/- as the multiplicand/ monthly contribution is justified or not. 4. Basic pay, Variable DA, HRA and CCA are part of the **M.A.C.A. No.301 of 2007** -: 4 :- pay packet and the deceased with his family every month was undoubtedly entitled to enjoy the said amount. So far as the Washing Allowance of Rs.75/-, the Nutrition Allowance of Rs.145/- and RCE(?) of Rs.625/-, the vital details are not available and it is possible to contend that the said amounts were reimbursed for the expenses incurred and therefore when the deceased is not employed, he will not be entitled for reimbursement of such expenses incurred. Even then, the monthly salary cannot, at any rate, be reckoned at a figure below Rs.9,000/-, argues the learned counsel. 5. The learned counsel further argues that the deceased had permanent employment. He could continue to work as an employee of the Hindustan Organic Chemicals Ltd., till he attains the age of 58 years and future prospects in employment must necessarily have been taken into reckoning while adopting the multiplicand. The deceased was less than 50 years of age and 30% is the future improvement in the prospects to be reckoned as per the dictum in **Sarla** (supra). In these circumstances, even if the amounts paid as Washing Allowance, Nutrition Allowance and RCE were deducted, the monthly salary including prospects of future increase must have been reckoned at least at ## **M.A.C.A. No.301 of 2007** -: 5 :- Rs.10,000/-, contends the counsel. 6. We find merit in that contention. We find the course adopted by the Tribunal to be without any justification. Following the dictum in **Sarla** (supra) and in the light of Ext.A8, Rs.10,000/- could safely be reckoned as the monthly earnings for the purpose of ascertaining the multiplicand. 7. The learned counsel for the Insurance Company submits that it would be incorrect to reckon the entire amount of Rs.10,000/- as the multiplicand for the entire period of 13 years reckoned as the multiplier. The learned counsel for the Insurance Company argues that, at any rate, at the age of 58 years the deceased would have retired from service on superannuation and it would be absolutely irrational to take the same as the multiplicand for the period to follow. In these circumstances, the learned counsel for the Insurance Company argues that if the multiplicand is increased realistically, differential multiplicand may be employed for the first 10 years during which the deceased would have continued in employment and the later 3 years during which he would have retired from service. We find force in that contention of the learned counsel for the Insurance Company. Differential multiplicand can be **M.A.C.A. No.301 of 2007** -: 6 :- employed to ascertain just and reasonable compensation payable under the head of loss of dependency. 8. The above discussions lead us to the conclusion that the claimants are entitled to a further amount of Rs.3,52,000/(Rupees three lakhs and fifty two thousand only) as compensation as per the details shown below: Loss of dependency (Rs.10,000/- x 12 x 10 x 2/3) i.e., Rs.8,00,000/plus (Rs.3,000/- x 12 x 3 x 2/3) i.e., Rs. 72,000/- - Total -------------------Rs.8,72,000/minus Rs.5,20,000/-------------------Rs.3,52,000/======== 9. The learned counsel for the appellants argues that interest has been awarded only at the rate of 6% per annum. At least, 7.5% per annum must have been fixed as the rate of interest. In support of this contention, the learned counsel for the appellants relies on the decision in **Dharampal v. U.P.S.R.T.C.** (2008 (2) KLT 691). We find the said contention to be acceptable. 10. In the result: - (a) This appeal is allowed in part. **M.A.C.A. No.301 of 2007** -: 7 :- (b) The appellants are found entitled to a further amount of Rs.3,52,000/- in addition to the amounts ordered by the Tribunal. (c) It is further directed that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the petition to the date of payment. (d) All other directions of the Tribunal are upheld. The Tribunal shall issue revised directions regarding release/deposit of the compensation amount. Sd/- **R. BASANT** **(Judge)** **Sd/-** **M.C. HARI RANI (Judge)** ## **Nan/** //True Copy// P.S. to Judge