Sally Thomas & Others v. Ambily Aravindan & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 MACA.No. 1528 of 2006() ----------------------OPMV.1310/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... ## APPELLANT(S): APPELLANTS/CLAIMANTS 1 TO 3 ----------------------------------------- 1. SALLY THOMAS, S/O.LATE K.G.THOMAS, KUTTICHIRA VILAYIL VEEDU, KAITHAKUZHY CHERRY, ADICHANALLOR VILLAGE, VELICHIKALA P.O., KOLLAM. 2. JIBOY THOMAS, S/O.LATE K.G.THOMAS, KUTTICHIRA VILAYIL VEEDU, KAITHAKUZHY CHERRY, ADICHANALLOR VILLAGE, VELICHIKALA P.O., KOLLAM. 3. JIBIN THOMAS (MINOR), AGED 15 YEARS, S/O.LATE K.G.THOMAS, KUTTICHIRA VILAYIL VEEDU, KATHAKUZHY CHERRY, ADICHANALLOR VILLAGE, VELICHIKALA P.O., KOLLAM REP.BY THE 1ST APPELLANT AND MOTHER SALLY THOMAS. BY ADV. SRI.H.RAMANAN SRI.M.M.VINOD KUMAR ## RESPONDENT(S): RESPONDENTS -------------------------- * 1. AMBILY ARAVINDAN, W/O.J.ARAVINDAN, SREE BHAVANI TRANSPORT, SUJA MANDIR, ERAVIPURAM, KOLLAM. * 2. SREE KUMAR P.S.,S/O.SASIDHARAN PILLAI, SINI BHAVAN, THRIKKOVILVATTOM, MUKHATHALA. 3. THE BRANCH MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, AMARJYOTHI COMPLEX, KADAPPAKKADA, KOLLAM. 4. MARIAMMA KOSHY (DIED), W/O.I.GEEVARGHESE, M/O.LATE K.G.THOMAS, KUTTICHIRA VILAYIL VEEDU, KAITHAKUZHY CHERRY, ADICHANALLOR VILLAGE, VELICHIKALA P.O., KOLLAM. (The name of respondents 1 and 2 are deleted from party array at the risk of the appellants vide order dated 09/12/2009 in I.A.No.3658/09) ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A No.1528 of 2006 ---------------------------------------Dated this the 14[th] day of January 2010 ## **J U D G M E N T** ## **Basant,J** Claimants are the appellants. Originally there were four claimants. They were the wife, two minor children and aged mother of the deceased. The aged mother, the 4[th] claimant, it is submitted, had expired even before the impugned award was passed. Application has been filed to record her death. 2. The deceased was a High School Assistant in an aided school. He was drawing a total amount of Rs.7,195/- as his monthly income. This included basic pay of Rs.5,375/-, dearness allowance Rs.1,720/- and H.R.A Rs.100/-. From this gross salary payable, there were monthly deductions of a total amount of Rs.2,280/- at the time of his death. Rs.1,000/- was his P.F subscription. He had availed a P.F loan and an amount of Rs.1,250/- was being paid every month towards repayment of the said loan. An amount of Rs.30/- was contributed by him towards group insurance. 3. The deceased was aged 50 years at the time of his death. The claimants claimed a total amount of Rs.7,17,000/- as M.A.C.A No.1528/06 2 compensation. Before the tribunal, Exts.A1 to A16 were marked on the side of the claimants. No other evidence was adduced. Ext.A16 is the salary certificate giving the details to which we have already referred. 4. The tribunal, on an anxious consideration of all the relevant inputs, proceeded to award a total amount of Rs.3,18,000/- as compensation along with interest @ 7.5% p.a and cost. The relevant details are given below: |||||Rs.| |---|---|---|---|---| |1.|Pain|and suffering||5,000/-| |2.|Loss|of love and affection||10,000/-| |3.|Loss|of consortium||10,000/-| |4.|Funeral and transport|||5,000/-| |||expenses||| |5.|Loss|of dependency||| ||(i)|Rs.4,800/- x 2/3|x 12 x 5|1,92,000/-| ||(ii)|Rs.2,000/- x 1/3|x 12 x 6|95,976/-| ||||**Total**|**3,17,976/-**| |||**Rounded to**||**3,18,000/-**| 5. The appellants, as stated earlier, are claimants 1 to 3. They assail the impugned award. According to them, the total amount of compensation awarded does not represent fair and reasonable compensation. M.A.C.A No.1528/06 3 6. What are the grounds? The learned counsel for the appellants assails the award of the tribunal on the sole ground that loss of dependency awarded by the tribunal is painfully and unrealistically low. The tribunal had correctly reckoned the multiplier at 11 and the deceased being a person of the age of 50 years, this conclusion is not disputed before us. The tribunal took into account the fact that within five years the deceased would have retired on superannuation and hence adopted a higher multiplicand (Rs.4,800/-) taking into reckoning his stable income as a teacher in service for the said period of five years. For the post retirement period of six years (out of the 11 years adopted as the multiplier) the tribunal chose to reckon as the multiplicand only notional income of Rs.2,000/-. 1/3[rd] of the amount was further deducted towards the personal expenses of the deceased for the entire period of 11 years. The learned counsel first of all contends that the entire amount of Rs.7,195/payable as monthly earnings must, at any rate, have been taken while identifying the multiplicand for the first period of five years. The learned counsel contends that, at any rate, the deduction of Rs.2,280/- shown in Ext.A16 should not have been 4 M.A.C.A No.1528/06 reduced while ascertaining the multiplicand for the first period of five years. 7. We find it easy to accept this contention of the learned counsel for the appellants. If precedents be necessary, the learned counsel has cited the decision in **Raghuvir Singh v. Hari Singh [2009(2) KLT 269 (SC)]** to contend that the deductions in the monthly salary cannot mechanically be reduced from the multiplicand. We are in agreement with the learned counsel for the appellants. P.F subscription and P.F loan repayment etc. are accretions to the benefit of the claimant or the legal heirs and, at any rate, while ascertaining the multiplicand, there is no reason to reduce the said deductions from the monthly salary. Though there is a contention that following the decision in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** provisions must be made for prospective improvement in earnings and that deductions for personal expenses must be further reduced to 1/4[th] , we find no merit in that contention. **Sarla** (Supra) recognises that for persons above 50 years, future prospects/improvement need not be taken into reckoning. Similarly, only three persons are shown to be dependent on the deceased, that is wife and two minor children. The 4[th] dependent M.A.C.A No.1528/06 5 had expired before the claim was disposed of and, at any rate, there is nothing to show that she was solely depending on the deceased. In these circumstances, we are not persuaded to agree that the monthly income of Rs.7,195/- should be further enhanced taking into account the future prospects or that less than 1/3[rd] alone should be deducted as the personal expenses of the deceased. 8. The learned counsel contends that, at any rate, post retirement earnings for a High School Assistant like the deceased by tuition etc. would fetch an income exceeding Rs.2,000-. The learned counsel contends that the tribunal erred grossly and unrealistically in fixing the post retiral notional income as Rs.2,000/-. The tribunal should have noted that even for a non-earning person, the law in the second schedule of the Motor Vehicles Act permits a presumption of prudence even in 1994 that Rs.1,250/- can be such notional income. Many imponderables are there; but we agree that atleast an amount of Rs.3,000/- can be reckoned as the multiplicand for the remaining period of six years. We do that taking note of the prospect of a retired experienced teacher engaging himself on production activity after retirement at 55 years. M.A.C.A No.1528/06 6 9. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs.1,43,824/as per details shown below in addition to the amounts already awarded by the tribunal. - i.e. Loss of dependency - (i) Rs.7,195/-x 12 x 5 x 2/3 = Rs.2,87,800/- minus Rs.1,92,000/- = Rs.95,800/- - (ii) Rs.3,000/- x 2/3 x 12 x 6 = Rs.1,44,000/- minus Rs.95,976/= Rs.48,024/- **Total = Rs.1,43,824/-** 10. No other contentions are raised. 11. In the result, - a) This M.A.C.A is allowed in part. b) The appellants are found entitled to a further amount of Rs.1,43,824/- (Rupees one lakh forty three thousand eight hundred and twenty four only) in addition to the amount already awarded by the tribunal. Needless to say, the entire amount shall carry interest as directed by the tribunal from the date of the award. 12. We direct the tribunal to issue appropriate further directions regarding release/deposit of the amount. While M.A.C.A No.1528/06 7 issuing such directions, the tribunal shall note that only the appellants are entitled to the compensation. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A No.1528/06 8 M.A.C.A No.1528/06 9 **R.BASANT & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 29/07/2009