Ramakrishnan Pillai and others v. Santosh Joseph and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936** **MACA.No. 2934 of 2014 () -------------------------** **AGAINST THE AWARD IN OPMV 309/2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR DATED 14-08-2014** **APPELLANTS/PETITIONERS:** **--------------------------** **1. RAMAKRISHNA PILLAI, S/O LATE MADHAVAN PILLAI, M.P SADANAM, PAZHAYEROOR BHARATHEEPURAM P.O, PATHANAPURAM TALUK KOLLAM DISTRICT** **2. REVATHY (MINOR), AGED 16 YEARS S/O LATE AJITHAKUAMRY, M.P SADANAM, PAZHAYEROOR BHARATHEEPURAM P.O, PATHANAPURAM TALUK KOLLAM DISTRICT** ## **3. NAVAMY (MINOR), AGED 11 YEARS** - **D/O LATE AJITHAKUAMRY, M.P SADANAM, PAZHAYEROOR BHARATHEEPURAM P.O, PATHANAPURAM TALUK KOLLAM DISTRICT** ## **4. VIJAYAMMA P.** - **W/O LATE THANKAPPAN PILLAI PARAMBUKONATHU PUTHEN VEEDU, PARAMCODU, OOMMANNOOR P.O KOTTARAKKARA TALUK, KOLLAM DISTRICT** **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS/RESPONDENTS:** **---------------------------** ## **1. SANTHOSH JOSEPH,** **S/O JOSEPH, KADAMTHODU HOUSE, MALAYAILKUNNU PERUNNA P.O, THRIKKODITHANAM, CHANGANASSERY KOTTAYAM 686102** **2. BIJU DAVID, S/O DAVID, THUNDIYATHU VEEDU, PAZHAYEROOR YEROOR, BHARATHEEPURAM P.O, KOLLAM DISTRICT 691330** **3. NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, C.S.I SQUARE, BAKER HILL KOTTAYAM 686001** **R3 BY ADV. SRI.RAJAN P.KALIYATH R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.2934 of 2014** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of December 2014** ## **JUDGMENT** ## **Asha , J.,** Appellants, who are the legal heirs of deceased Ajithakumari have approached this Court seeking enhancement in compensation. The deceased met with the fatal accident on 29.4.2009, on being knocked down by a bus while she was riding her Kinetic Honda Scooter and succumbed to the injuries. The appellants are her husband, two minor children and her mother. The deceased was aged 44 at the time of the accident. She was working as a Mahila Prathan Agent in the Post office since her appointment as such in the year 1998. Claim petition was filed seeking compensation to the tune of Rs. 20 lakhs. Towards loss of dependency, the appellants claimed that she was getting an annual income of Rs. 1,85,562/- during the year 2008 by way of commission, allowances, incentives and bonus. 2. The Tribunal passed an award for a sum of Rs. 19,03,500/-. A sum of Rs. 17,33,498/- was awarded towards compensation for M.A.C.A. No.2934 of 2014 :2: pecuniary loss caused by the death of the deceased. Learned counsel for the appellant submits that the amount awarded under various heads are thoroughly inadequate. The Tribunal did not reckon the income of the deceased correctly, despite documentary evidence proving the same. 3. We heard the learned Counsel for the Insurance Company who vehemently opposed the claim for enhancement. It was submitted that the deceased was only a Mahila Prathan Agent who was getting only commission and there is no fixed salary or income and therefore the amount awarded by the Tribunal was just. 4. Learned counsel for the appellant, on the basis of the documents Exts.A8 to A12 asserted that there was steady increase in income of the deceased and Tribunal should have reckoned the annual income as Rs. 1,85,562/-. 5. In order to prove the income of the deceased PW1 to PW6 were examined and Ext A8 to A16 were marked. Ext A8, A11 and A13 and the deposition of PW3, officer from the office of BDO, show that that the deceased was appointed on 4.8.1998 as Mahila Pradhan-authorised agent under the MPBKY(Mahila Pradhan Khetriya M.A.C.A. No.2934 of 2014 :3: Bachat Yojana) agent of National Savings Scheme attached to the post office at Kulathupuzha in Kulathupuzha Panchayat as per Ext A8 and the agency was being renewed from time to time, as seen from Ext A11 and she was being paid incentive allowance as certified in Ext A13. The incentive allowance for the year 2008-09 was Rs. 80880/-after deducting income tax. Ext.A12 and the depositions of PW4 and PW6-Post mistresses of the concerned Post offices, show that the quantum of commission applicant was getting, had been increasing year to year considerably, from Rs.2200/- in 2000 to Rs. 82090/-in 2008. In 2009 up to the date of her death i.e 29.4.2009, it was Rs. 29429. She was getting a commission of Rs.52000/- in 2005, Rs. 64800/- in 2006, Rs. 68760/- in 2007, Rs. 82090/- in 2008 and it was 29420 for just 4 months in 2009, upto her death. The Deputy Director of National Savings Scheme was examined as PW2 to prove the income of deceased towards bonus as certified in Ext A14 i.e Rs. 19401/-for the year 2008-09, after deduction of income tax and to prove her income towards SAS allowance and SAS bonus-Rs.3320/- as certified in Ext A15, after deducting income tax. Ext.A13 shows the incentive allowance drawn by the deceased during M.A.C.A. No.2934 of 2014 :4: 2000 to 2009 and the corresponding deduction of income tax. The sum of Rs. 21,000/- drawn by her towards allowance in the year 2000 rose to Rs. 88968/- in 2008 and for the period upto her death in April 2009 it is Rs. 31922. Ext A13 shows the increase in her bonus i.e from Rs. 11313 in 2003-04 to Rs. 26850 in 2009-10, which came to Rs.19147/- after deducting the income tax Rs.2163/-. Besides this the deceased was an agent of Life Insurance Corporation of India. Ext A16 certificate issued by the Chief Manager, LIC, who was examined as PW5, shows that she earned a sum of Rs. 8334/-. Her annual income towards at the relevant time is thus seen as : commission : 73381; incentive allowance: 80888; bonus:19147; SAS allowance : Rs.3320 and commission as LIC agent :Rs.8334. Thus we find that there was a steady and consistent rise in the income of deceased year to year. Therefore we are of the view that the income as borne out from Ext A12 to A16 can be safely relied on in order to assess the compensation towards loss of dependency. 6. Tribunal fixed her annual income at Rs. 1,77,795/-, taking the average of the income earned by her during the 3 years preceding her death. This procedure is also assailed as one without any basis. M.A.C.A. No.2934 of 2014 :5: From the materials on record we find that the annual income of the deceased after deduction of income tax to be reckoned was Rs.185562/-(73381+80888+19147+3320+8334), as evident from Ext A12 to A16. Therefore, the compensation towards loss of dependency should be assessed reckoning her annual income as Rs.185562/- . The Tribunal has adopted the multiplier as 13, which is not correct. The deceased was aged 44 and going by the judgment of the apex court in **Sarala Verma Vs Delhi Transport Corporation (2010(2) KLT 802)** , proper multiplier is 14. It is seen that the family of the deceased consisted of husband, two minor children and her mother. Therefore, ¼[th] of the income alone is to be deducted towards personal expenses of the deceased. Therefore the compensation under the head loss of dependency will come to **Rs. 1948401/-(** 1,85,562 x 14x3/4 ) 7. Similarly, the amount awarded towards compensation for loss of love and affection is only Rs. 40,000/-. Going by the decision of the Apex Court in Rajesh v. Rajbir Singh (2013 (3) KLT 89 (SC) a sum of Rs.1,00,000/- each can be awarded towards loss of love and affection to children. We therefore grant Rs. 1 lakh each towards M.A.C.A. No.2934 of 2014 :6: loss of love and affection to the minor children. Towards pain and suffering the Tribunal has not granted any amount. We find it just to award a sum of Rs. 5,000/- towards pain and suffering. Similarly, towards compensation for loss of estate, the Tribunal has awarded only Rs. 5,000/-. We enhance the same as Rs. 10,000/-. Accordingly, we modify the award as follows: |**_Sl._**<br>**_No._**|**_Heads_**|**_Amount_**<br>**_awarded_**|**_Modified_**<br>**_amount_**|**_Basis_**| |---|---|---|---|---| |1|Transportation charges|25000|25000|| |2|Treatment and cost of medicines|||| |3|Compensation for pain and suffering||5000|| |4|Compensation for loss of consortium|100000|100000|| |5|Compensation for love and affection|40000|200000|| |6|Compensation for loss of estate|5000|10000|| |7|Compensation for the pecuniary loss<br>caused by the death of the deceased|1733498|1948401|| ||Total|1903498|2288401|| ||Rounded off to|1903500|2288400|| 8. The amount will carry interest at the rate of 9% p.a from the date of petition. The Insurance Company is directed to deposit the entire amount less the amount already deposited within a period of three months from the date of receipt of a copy of this judgment. The appellants shall remit the deficit court fee before the M.A.C.A. No.2934 of 2014 :7: Tribunal towards the enhanced compensation awarded. Disbursement of enhanced amount need be made only thereafter. The appeal is allowed as above. Sd/- **T.R.RAMACHANDRAN NAIR (JUDGE)** Sd/- AL/- **P.V.ASHA (JUDGE)** True copy P.A to Judge M.A.C.A. No.2934 of 2014 :8: **correct**