Sara (W/o Late Ali) and Others v. C.K. Sooppy, Sudheer Pattannummal & New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 MACA.No. 561 of 2007() ---------------------OPMV.65/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... ## APPELLANT(S): APPELLANTS/PETITIONERS. ------------------------------------- 1. SARA, W/O.LATE ALI, 37 YEARS, PANAVAYALIL KUNIYIL, POST: KANNOOKKARA, ONCHIYAM AMSOM, KANNOOKKARA DESOM, VADAKARA TALUK, PIN.673 308. 2. DAUGHTER HASEENA, 13 YEARS (MINOR), REPRESENTED BY NEXT FRIEND, MOTHER, SARA, 1ST APPELLANT. 3. SISTER JASMIN, AGED 11 YEARS (MINOR), REPRESENTED BY NEXT FRIEND, MOTHER, SARA, 1ST APPELLANT. 4. SISTER JAMEELA, 8 YEARS (MINOR), REPRESENTED BY NEXT FRIEND, MOTHER, SARA, 1ST APPELLANT. 5. BROTHER AFSAL, AGED 5 YEARS (MINOR), REPRESENTED BY NEXT FRIEND, MOTHER, SARA, 1ST APPELLANT. 6. KADIYA, MOTHER OF LATE ALI, 86 YEARS, ALL APPELLANTS ARE RESIDING AT PANAVAYALIL KUNIYIL, POST: KANNOOKKARA, ONCHIYAM AMSOM, KANNOOKKARA DESOM, VADAKARA TALUK, PIN-673 308. BY ADV. SRI.B.KRISHNAN SRI.ZUBAIR PULIKKOOL RESPONDENT(S): - --------------- 1. C.K.SOOPPY, S/O.ABDULLA HAJI, CHEEZHALIKKARA HOUSE, POST:VANIMEL, KALLACHI, VADAKARA TALUK, PIN- 673 506. (R.C.OWNER OF KL-18.3767 BUS). 2. SUDHEER PATTANNUMMAL, S/O.KELAPPAN, PATTANNUMMAL, VISHNUMANGALAM, POST: KALLACHI, VADAKARA TALUK, PIN- 673 506, (DRIVER OF KL-18.3767 BUS). 3. NEW INDIA ASSURANCE COMPANY LTD., AL MUBARAK BUILDING, EDODI, VADAKARA, (INSURER OF KL-18.3767 BUS). PIN-673 101. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A No.561 of 2007 ---------------------------------------Dated this the 11[th] day of January 2010 ## **J U D G M E N T** ## **Basant,J** Claimants are the appellants. They are the wife, aged 37 years, 4 minor children of ages 5 to 13 years and the mother aged 86 years of a deceased person, who met with an accident and succumbed to injuries suffered in such accident. He was aged 49 years on the date of the accident, ie. 02.10.2003. The claimants claimed compensation and the Tribunal by the impugned award directed payment of an amount of Rs.6,09,776/as per the details given below: ||||Rs.| |---|---|---|---| |i)|Transport to hospital|:|1,000/-| |ii)|Funeral expenses|:|2,000/-| |iii)|Loss of consortium|:|5,000/-| |iv)|Loss of love and affection|:|20,000/-| |v)|Loss of dependency|:|5,81,776/-| ||(Rs.5,594/- x 12x 2/3 x 13)||| **Total 6,09,776/-** 2 M.A.C.A No.561/07 2. The learned counsel for the respondent/insurer submits that subsequently the tribunal had noted the error in reckoning the net monthly income at Rs.5,594/- and had modified/corrected the award reckoning the net monthly income as Rs.5,464/-. Thereupon the compensation under the head of loss of dependency was reduced to Rs.5,68,256/- and the total amount was reduced to Rs.5,96,256/-. 3. The claimants claim to be aggrieved by the impugned award. The learned counsel for the appellants contends that loss of dependency was not correctly calculated by the tribunal. Ext.A8 salary certificate shows that the total gross salary due to the deceased at the time of his death was Rs.11,058/- including basic pay, dearness allowance, house rent allowance and other allowances. From this there was a total deduction of Rs.5,594/- as per the details shown below: ||Rs.| |---|---| |G.P.F subscription|500/-| |L.I.C|1,131/-| |Co-operative loan|3,823/-| |Employees Welfare Fund|50/-| |Onam advance|90/-| |**Total**|**5,594/-**| M.A.C.A No.561/07 3 Net carry home salary during the relevant period was Rs.5,464/- (Rs.11,058/- -- Rs.5,594/-). 4. The learned counsel for the appellants Sri.B.Krishnan submits that the tribunal erred grossly in excluding Rs.5,594/- from the total gross monthly income to ascertain the multiplicand and fixing it at Rs.5,464/-. The learned counsel contends that the G.P.F subscription, L.I.C, co-operative loan, E.W.F and onam advance are not amounts which could be mechanically deducted from the net salary to ascertain the correct multiplicand applicable. The G.P.F subscription, if not reckoned for the ascertainment of the monthly contribution/multiplicand, must necessarily find a place in the qualification as accretion to the estate. Similar contentions are advanced about the premium paid to the L.I.C and the E.W.F as this would definitely have been available at the time of termination of his employment or as accretion to the estate to be enjoyed by the deceased or the legal heirs as the case may be. Insofar as cooperative loan and onam advance are concerned, the learned counsel contends with the help of the materials available that these are short term obligations/liabilities which arose only because the amount in lumpsum was availed by the deceased earlier and he was only repaying the amount. It will be totally unrealistic and irrational to 4 M.A.C.A No.561/07 deduct the entire deductins from the gross salary to arrive at the multiplicand/dependency, contends the learned counsel. 5. We find considerable force in this contention. The entire amount of Rs.11,058/-, we note, is to be reckoned subject to permissible deductions as the loss suffered by the dependents as either earlier or later the deceased would have received that amount and would have been available for the deceased and his family for utilisation. 6. But, we do note that the amount of Rs.11,058/- cannot mechanically be accepted as the multiplicand in the instant case, because as held in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** due credit will have to be given to the income tax liability which must have been there. That is a liability, which when discharged, would not have been available to the deceased or the legal heirs to be enjoyed later on. Definitely therefore while reckoning the monthly contribution, the income tax liability has to be deducted. 7. We do also note that this monthly income would normally have been available only till the date of superannuation at 55 years. Deceased was aged 49 years. Multiplier is reckoned as 13. This income would have been received only for a period of six years (i.e. 55-49). Of course, thereafter also, the deceased may have been M.A.C.A No.561/07 5 employed and may have earned income. The precise quantum of such amount is an imponderable input. 8. The learned counsel for the appellant further contends with the help of the dictum in **Sarla** (Supra) that the deceased was a person aged below 50 years. Suitable provision of improvement in the prospects must also have been made, contends counsel. At least till the date of his retirement on superannuation on attainment of 55 years, his prospects must necessarily have improved. This input, we agree with the learned counsel, must also be realistically taken into account. 9. That takes us to the question as to what should be the actual amount reckoned as the multiplicand for the entire period of 13 years which is accepted as the multiplier again following the dictum in **Sarla** (Supra). In that event, giving due allowance for the deduction by way of income tax, giving due allowance for the improvement in prospects during the period during which the deceased was employed by the K.S.E.B and the possible decrease in income after he retires on superannuation, we have to fix a reasonable multiplicand. Taking all the relevant inputs into account, we are satisfied that Rs.7,500/- can be reckoned as the multiplicand. 6 M.A.C.A No.561/07 10. The learned counsel for the appellants placing reliance on the dictum in **Sarla** (Supra) again contends that mechanical deduction of 2/3[rd] from the monthly income of the deceased is not reasonable or proper. Six souls - 4 minors, an aged mother and young wife were all depending on the deceased. Going by paragraph 30 of **Sarla** (Supra) only 1/4[th] can be deducted as the personal expenses of the deceased. When the number of dependant family members are 4 to 6, that alone is the permissible deduction going by the dictum in paragraph 30 of **Sarla** (Supra), contends the learned counsel for the appellants. 11. We accept that contention. It follows from the above discussions that reasonable and just compensation payable under the head of loss of dependency can and must have been taken reasonably at Rs.8,77,500/- that is (Rs.7,500/- x 3/4 x 12 x 13). 12. The learned counsel submits that no amount has been awarded under the head of loss of estate and even going by the stipulations in **Sarla** (Supra) atleast a modest amount of Rs.10,000/must have been added under the head of loss of estate. We find merit in this contention also. 13. No other contentions are raised. We are, in these circumstances, satisfied that the appellants/claimants can be held to M.A.C.A No.561/07 7 be entitled to a total amount of Rs.9,15,500/- by way of compensation: Rs. i) Transport to hospital : 1,000/ii) Funeral expenses : 2,000/iii) Loss of consortium : 5,000/iv) Loss of love and affection : 20,000/v) Loss of dependency : 8,77,500/(Rs.7,500/- x 12x 3/4 x 13) vi) Loss of estate : 10,000/- **Total 9,15,500/-** 14. The learned counsel then contends that interest has been awarded only @ 6% p.a. This is grossly and perversely inadequate, contends the learned counsel for the appellants. The learned counsel relies on the decision in **Dharampal v. U.P State Road Transport Corporation [2008(2)KLT 691 (SC)].** We are satisfied that interest can and should have been safely awarded @ 7.5% p.a. 15. In the result, a) This appeal is allowed in part. b) The impugned award is modified. It is held that the appellant is entitled to an amount of Rs.9,15,500/- (Rupees nine lakhs fifteen thousand and five hundred) as per the details shown above. M.A.C.A No.561/07 8 We further direct that interest shall be payable @ 7.5% p.a (in supersession of the direction to pay interest @ 6% p.a) on the entire amount of compensation from the date of the petition. All other directions in the impugned award are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A No.561/07 9 M.A.C.A No.561/07 10 **R.BASANT & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 29/07/2009