Prasanna Varma and others v. A.S. Umesh and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935** ## **MACA.No. 680 of 2011** **------------------------AGAINST THE AWARD IN OP(MV)NO. 1273/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 19-02-2011** **....** ## **APPELLANT(S)/PETITIONERS:** **------------------------------------------------** **1. PRASANNA VARMA, AGED 41 YEARS, W/O.LATE M.CHANDRASEKHARAN, NAYANTHARA AKATHETHARA VILLAGE, PALAKKAD.** ## **2. C.P.SIVASANKARAN, AGED 18 YEARS,** - **(NOW ATTAINED MANORITY), S/O.LATE M.CHANDRASEKHARAN, NAYANTHARA, AKATHETHARA VILLAGE, PALAKKAD.** ## **3. KUMARI C.P.BHAVANI, AGED 14 YEARS(MINOR),** - **D/O.LATE M.CHANDRASEKHARAN, NAYANTHARA, AKATHETHARA VILLAGE, PALAKKAD- REPRESENTED BY GUARDIAN AND MOTHER PRASANNA VARMA.** ## **4. T.BALARAMA MENON, AGED 72 YEARS,** - **S/O.SANKUNNI MENON, MATHRU MANDIRAM,** - **AKATHETHARA, PALAKKAD.** ## **5. VIMALA NEITHAR, AGED 62 YEARS,** - **D/O.LATE KUTTAN ACHAN, MATHRU MANDIRAM,** - **AKATHETHARA, PALAKKAD.** **BY ADVS.SRI.K.ABDUL JAWAD SRI.U.MUHAMMED MUSTHAFA** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** **1. A.S.UMESH, S/O.LAKSHMI, 8/144, SAI ASHIRWAD, KALLEKULANGARA, PALAKKAD - 678 014. (OWNER CUM DRIVER, TATA SUMO NO.KL 09 G 5799).** **2. THE NEW INDIA ASSURANCE CO.LTD.,** - **M.A.LANE, T.B.ROAD, PALAKKAD - 678 014. (INSURER OF TATA SUMO NO.KL 09 G 5799).** **R2 BY ADV. SRI.RENIL ANTO KANDAMKULATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.680 of 2011 -----------------------------------------------------------------Dated this the 20[th] day of November, 2013 J U D G M E N T ## S. Siri Jagan, J The wife, children and parents of deceased M. Chandrasekharan are the appellants herein. Chandrasekharan died in a motor vehicle accident, caused by the negligent driving of a vehicle, owned and driven by the first respondent and insured with the 2[nd] respondent. The appellants filed O.P(M.V.).No.1273/2005 before the Motor Accidents Claims Tribunal, Palakkad, claiming compensation for the death of Chandrasekharan. The tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: |**Sl.**<br>**No**.|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of dependency|5, 12, 000| |2|Loss of love and affection|10, 000| |3|Loss of consortium|10, 000| |4<br>|Transportation|2, 000| |5<br>|Funeral expenses|2, 000| ||Total|5,36,000| M.A.C.A. No.680 of 2011 2 Dissatisfied with the quantum of compensation awarded by the tribunal, the appellants have filed this appeal, seeking enhanced compensation. 2. The first contention of the appellants is that, although the appellants have produced Exts.A7 and A7(a) salary certificates issued by the Provident Fund organisation, where the deceased was working as a Data Entry Operator, Grade-I, certifying that the appellant was drawing a total salary of 8,255/, the tribunal, arbitrarily₹ fixed the income of the deceased as only 4,000/-, which₹ is unsustainable. Secondly, it is contended that the deceased was 45 years at the time of death on 14.04.2004. But the tribunal did not take into account, future prospectus in employment of the deceased while fixing the monthly income for calculating loss of dependency in accordance with the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC).** The third M.A.C.A. No.680 of 2011 3 contention is that, although, the first appellant was aged only 34 years at the time of the death of her husband with two children as well, the tribunal awarded only 10,000/-₹ towards loss of consortium, which is ridiculously low. It is further contended that, although there were two minor children, as well as aged parents for the deceased, the tribunal awarded only 10,000/- towards loss of love and₹ affection, which is also on the lower side. Lastly, it is contended that, there were five dependants, despite which, the tribunal deducted 1/3[rd] for personal expenses of the deceased, which is contrary to the decision in Sarla Verma's case, where the Supreme Court has held that where there are 4 to 6 dependants, only 1/4[th] should be deducted. The appellants would also contend that, no amounts have been awarded towards pain and suffering of the deceased and loss of estate, for which conventional amounts should have been awarded. 3. On the other hand, the learned counsel for M.A.C.A. No.680 of 2011 4 the 2[nd] respondent insurance company points out that, the tribunal fixed the income after deducting the deductions shown in the salary certificate produced by the appellants, which is perfectly correct. It is further submitted that the deceased was aged 45 years at the time of his death and as per the decision of the Supreme Court in Sarla Verma’s case(supra), the multiplier applicable is only 14, whereas, the tribunal has adopted 16, which is wrong. Therefore, the counsel for the 2[nd] respondent argues for sustaining the impugned award. 4. We have considered the rival contentions in detail. 5. We have perused Exts.A7 and A7(a) salary certificates. Of course, the same certifies recoveries as well. Those recoveries relate to provident fund, group insurance, profession tax, provident fund advance, conveyance advance, staff benevolent fund, canteen/club/union expenses, life insurance, LIC premium M.A.C.A. No.680 of 2011 5 and other miscellaneous. We are of opinion that all those amounts cannot be deducted since, those form part of the income of the deceased, from which, for his benefit certain amounts are deducted, which would ultimately come back to him after his retirement. Therefore, these amounts cannot be deducted as done by the tribunal. Accordingly, we fix the income of the deceased as ₹ 8,000/- per month. Going by the decision in Sarla Verma’s case, 30% has to be added for future prospects. But going by Sarla Verma’s case 20% has to be deducted for income tax. Going by Sarla Verma’s case, the deduction for personal expenses can only be 1/4[th] , in view of the fact that there were 5 dependants. But the multiplier applicable is 14 as fixed in Sarla Verma’s case and not 16. Calculated on that basis, the total compensation for loss of dependency would be ₹ 10,48,320/ (8,000x12x14x3/4x130%x80%) instead of ₹ 5,12,000/-. The difference would be 5,36,320/-. Since₹ M.A.C.A. No.680 of 2011 6 the first appellant was only 34 years old at the time of the death of her husband with two minor children, there is no possibility of re-marriage and therefore, we enhance the compensation for loss of consortium to 50,000/- from₹ ₹10,000/-. Likewise, since, there were two minor children and aged parents, we enhance the compensation for love and affection to 30,000/- from 10,000/- awarded by the₹ ₹ tribunal. We award 10,000/- towards pain and suffering₹ of the deceased and 10,000/- towards loss of estate. In₹ total, the appellants would be entitled to additional compensation of 6,16,320/-, over and above what has₹ been awarded by the tribunal. The said amount would carry interest at the rate of 9% per annum from the date of the claim petition, till date of payment. The 2[nd] respondent insurance company is directed to deposit that amount also within two months. We make it clear that, this additional compensation shall be shared equally by appellants 1 to 3, since appellants 4 and 5 have already M.A.C.A. No.680 of 2011 7 been provided adequately by the tribunal for their dependency. The shares of the minors shall be deposited in a nationalised bank, drawing interest, with liberty to approach the tribunal for disbursement, when they attain majority. But the 1[st] appellant can withdraw interest accrued from time to time for the benefit of the minors. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss