Shakiela George and Anjali Rachel George v. K. Sathy, Narayanan and United India Insurance Company Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 MACA.No. 477 OF 2004() ---------------------OPMV.243/1996 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... ## APPELLANTS/PETITIONERS: ------------------------------------- 1. SHAKIELA GEORGE, W/O. THE LATE K. GEORGE PLAVELIL, 42/1979, OLD RAILWAY STATION ROAD, ERNAKULAM, COCHIN-682 018. 2. ANJALI RACHEL GEORGE, D/O. THE LATE K. GEORGE PLAVELIL, DO. DO. BY ADV. SRI.CHACKO GEORGE, SENIOR ADVOCATE SRI.H.RAMANAN ## RESPONDENTS/RESPONDENTS: --------------------------- 1. K. SATHY, (OWNER OF TELCO LORRY TNR 5769) 14/8, NANJAPPA NAGAR, RAJALAKSHMY MILLS, SINGANALUR, COIMBATORE. 2. NARAYANAN, (DRIVING LICENCE NO.173/5/88), W/O. ARUMUGHAN, ALUMPATTI VEEDU, CHITHALI, KUZHALMANNAM, PALAKKAD DISTRICT. 3. UNITED INDIA INSURANCE COMPANY LTD., BRANCH V.R.S. PURAM, COIMBATORE-641 002. ADV. SRI.LIJU. M.P FOR R2 SRI.M.V.BIPIN FOR R2 SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2010, ALONG WITH MACA NO. 479 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. NO. 477 & 479 OF 2004 = = = = = = = = = = = = = = = = DATED THIS, THE 18TH DAY OF NOVEMBER , 2010. ## _**COMMON J U D G M E N T**_ ## _**Gopinathan, J.**_ These appeals are preferred by the petitioners in O.P. (MV) 243 and 244 of 1996 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The above two original petitions along with another petition - O.P. (MV) 242 of 1996 were enquired together by the Tribunal below and by a common award dated 23.7.2003, all those petitions were disposed of. 2. The brief facts leading to the filing of the original petitions are as follows: On 24.3.1995, at 8.30 P.M. at Chuvattupadam along the Trichur-Vadakkancherry road, a lorry bearing Registration No. TNR 5769, owned, driven and insured by Respondents 1 to 3 respectively, hit against a car bearing Registration No. TMG 2615 driven by late Viswambaran and as a result, Viswambaran and two passengers, namely Abraham Philip and George Plavelil sustained severe injuries to which all the three succumbed. The appellants in M.A.C.A. 477/2004 are the legal heirs of deceased George Plavelil. The appellants in the other appeal are the legal heirs of Abraham Philip. They, in their separate petitions, O.P. 243 of 1996 and O.P. 244 of 1996 before the Tribunal below, contended that the accident 2 ## _**M.A.C.A. NOS. 477 & 479/2004**_ occurred because of the rash and negligent driving of the lorry by the second respondent and hence all the respondents are liable to compensate them. In O.P. 243/1996 a sum of Rs. 30,75,000/- was claimed as compensation. In the other petition, a sum of Rs. 31,71,000/- was claimed as compensation. 3. Respondents 1 and 2 remained exparte. The third respondent, though admitted the insurance liability, contended that the accident occurred because of the negligent driving of the car by late Viswambaran and hence the third respondent is not liable to compensate the appellants. The third respondent also contended that the claim made is exorbitant. The Tribunal enquired all the three petitions jointly and evidence was recorded in O.P. (MV) 244 of 1996. The first appellant in M.A.C.A. 479/2004 was examined as PW.1. The first appellant in the other appeal was examined as PW.2. One of the legal heirs of Viswambaran was examined as PW.3. Exts.A1 to A16 were also marked. The contesting respondent did not adduce any oral or documentary evidence. The Tribunal below, on appraisal of the evidence on record, awarded a sum of Rs. 7,78,500/- in O.P.(MV) 244 of 1996. In O.P. 243 of 1996, a sum of Rs. 8,98,500/ was awarded. Aggrieved by the inadequacy of the compensation awarded, these appeals were preferred. _**M.A.C.A. NOS. 477 & 479/2004**_ 3 4. Sri. H. Ramanan, learned counsel appearing for the appellants submitted that the compensation awarded by the Tribunal below for loss of dependency in both the cases is very low and sought for interference and enhancement. On the same time, the learned counsel conceded that the compensation awarded by the Tribunal on other heads in both the cases are just and reasonable. 5. The learned standing counsel appearing for the third respondent didn't dispute the liability to compensate. According to the learned counsel, the compensation awarded in both the cases are just and reasonable. 6. In the light of the submission made by the learned counsel for appellants, we are examining the adequacy of compensation for loss of dependency alone. In M.A.C.A. 477 of 2004, it was revealed by the evidence of PW.2 and by Exts.A12 and A13 that deceased George Plavelil, on the date of accident was employed as General Manager, M/s. Kerala Rubber and Reclaims Limited., Ernakulam and was drawing a salary of Rs.3,200/-, D.A. 600, variable D.D. of Rs. 1,543.80, House Rent Allowance Rs. 500/- and conveyance allowance of Rs. 600/-. In addition to that, he was the director of two other companies by name M/s. Nelluparayil Rubbers and M/s. Ryas Rubber Company at Kalamassery and as director of the Company as evidenced by Ext.A13, he was drawing a salary of Rs. _**M.A.C.A. NOS. 477 & 479/2004**_ 4 2,000/-. If Exts. A12 and A13 are taken together, the deceased was having a monthly salary of Rs. 8,443/- whereas the Tribunal below had calculated only Rs. 7,000/- and from that a sum of Rs. 2,000/- was deducted towards personal expenses and Rs. 5,000/- was capitalized for a period of 14 years and thus, the compensation for loss of dependacy was determined at Rs. 8,40,000/-. According to the learned counsel for the appellant, the Tribunal below went wrong in limiting the salary of the deceased at Rs. 7,000/- and that taking into account that the deceased was aged below 40 years, the income should have been capitalized for a period of 15 years. We find merit in the submission. Going by Exts.A12 and A13, the admissibility of which was not disputed, we find that as submitted by the learned counsel for the appellant, the total monthly salary of the deceased was Rs. 8,443/- of which Rs. 600/- is towards conveyance allowance. We find that the conveyance allowance cannot be accounted to determine the loss of dependancy and that for determining the loss of dependency, we find that a sum of Rs. 7,843/- is to be taken as the salary of the deceased. In _**Sarla Varma v. Delhi Transport Corporation**_ (2010 (2) KLT 802 SC) the Apex Court had held that the second schedule attached to the amended Motor Vehicles Act is not correct and to determine the compensation of a person aged between 36 - 40 years, the multiple shall be 15 years. Admittedly, the deceased was _**M.A.C.A. NOS. 477 & 479/2004**_ 5 below 40 years. Therefore, the monthly loss of dependency is to be calculated for 15 years. Taking into account of the number of dependency, we find that one third of the monthly salary of Rs.7,843/- is to be deducted towards personal expenses and the balance Rs. 5,229/- shall be capitalized for a period of 15 years to determine the compensation for loss of dependency. If calculated so, it would come to Rs.9,41,220/- (5,229 x 12 x 15). Therefore, we find that in M.A.C.A. 477/2004, the appellants are entitled to a further sum of Rs.1,01,220/- towards compensation for loss of dependency. 7. In M.A.C.A. 479 of 2004 also, the Tribunal had committed identical error. Deceased Abraham Philip was employed as the Managing Director of the Kerala Rubber and Reclaims Ltd. As per Ext.A8, the statement of calculation of remuneration, he had been drawing a sum of Rs. 9,990/- per month. In addition to that, as director of Ryas Rubber Private Ltd. the deceased was drawing a sum of Rs. 2,000/ and thus, the monthly salary was stated as Rs. 11,990/-. The monthly salary certified is not disputed. The learned standing counsel for the third respondent contended that the income of the deceased would have been subjected to income tax and no material is produced to show as to what exactly was the net income, after deducting the tax. The learned counsel for the appellant do concede _**M.A.C.A. NOS. 477 & 479/2004**_ 6 that the amount certified in Ext.A8 would be subjected to income tax and regarding the tax payable, no document was produced. Hence we are constrained to have a guess work to determine the net income. 8. As regards late Abraham Philip, there are four dependents. If the principle laid down in _**Sarla Varma's**_ case (supra) is applied, one fourth of the salary alone can be deducted towards personal expenses and the rest is to be capitalized for determining the compensation for dependency. Late Abraham Philip was aged 46. So, the multiple to be applied as per the decision of the Apex Court in Sarla Varma's case (supra) shall be 13. Instead of that, the Tribunal below has taken a multiple of 12. So also, the salary of the deceased was roughly determined at Rs. 7,000/-, out of which Rs. 2,000/ was deducted as personal expenses. We find that a rectification is to be made regarding the multiplier and multiplicand, but subject to some guess work regarding the tax payable. If 1/4 **[th]** of the salary of the deceased is deducted, the balance amount would come to Rs.7,491/-. In the absence of any evidence regarding the tax payable, we find that the monthly loss of dependency can be determined at Rs.7,000/- and when multiplied for 13 years, it would come to Rs.10,92,000/- (7000x12x13). The Tribunal had already awarded a sum of Rs.7,20,000/- towards loss of dependency. Therefore, the appellants are entitled to an enhanced sum of 7 ## _**M.A.C.A. NOS. 477 & 479/2004**_ Rs. 3,72,000/-. The appeals are liable to be allowed to that extent. In the result, both the appeals are allowed in part. In M.A.C.A. 477/2004 the appellants are entitled to a further sum of Rs.1,01,220/towards loss of dependency in addition to the amount awarded by the Tribunal. In M.A.C.A. 479/2004, we find that the appellants are entitled to a further amount of Rs.3,72,000/- towards loss of dependency. The appellants in M.A.C.A. 479/2004 are entitled to apportion the compensation amount in equal moiety. The appellants are also entitled to future interest at the rate of 7.5% from the date of petition till payment or deposit before the Tribunal for the enhanced amount. PIUS C KURIAKOSE, (JUDGE) P.S. GOPINATHAN, (JUDGE) knc/-