Sobhida Beevi and others v. Praveen M. Salian and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938 MACA.No. 295 of 2011 ( ) ------------------------AGAINST THE AWARD IN OPMV 833/2008 of M.A.C.T.,KOLLAM DATED 30-11-2010 APPELLANT(S)/PETITIONERS: ------------------------ 1. SOBHIDA BEEVI, W/O.LATE N.K.SUBAIR, ANSARI MANZIL, UMAYANALLOOR P.O., KOLLAM. 2. SUSMI, D/O.SOBHIDA BEEVI, ANSARI MANZIL, UMAYANALOOR P.O., KOLLAM. 3. SUMIYA, D/O.SOBHIDA BEEVI, ANSARI MANZIL, UMAYANALLOOR P.O., KOLLAM. 4. SUBINA, D/O.SOBHIDA BEEVI, ANSARI MANZIL, UMAYANALLOOR P.O., KOLLAM. 5. KHADEEJA UMMAL, M/O.N.K.SUBAIR, NAPPANAL, MUTTAKKAVU, NEDUMPANA P.O., KOLLAM. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S):RESPONDENTS ------------------------------------ ## 1. PRAVEEN M.SALIAN, S/O.MUTHU SALIAN, MARKET ROAD, MULKI, KARNADAKA-574154 2. PRASAD KOTTIAN, S/O.VAMAYYA KOTTIAN, SRINIDHI HOUSE, KANATHUR BETTU, KARNAD MULKI, KARNADAKA-574154 3. UNITED INDIA INSURANCE CO. LTD., - P.B.NO.29, A.S.ROAD, SRINIVAS COMPLEX, KARKALA, KARNADAKA-574104 R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **========================== M.A.C.A. No.295 OF 2011 ==========================** Dated this the 21[st] day of March, 2016 ## **JUDGMENT** ## _Mary Joseph, J._ The legal heirs and dependants of one N.K.Subair who died in a motor accident have come up before this Court in appeal seeking enhancement of the compensation. The facts necessary for the disposal of this appeal are summarised as follows:- 2. On 19.4.2008 at about 9 a.m, deceased N.K.Subair was riding his motor cycle bearing Reg.No.KA 20/Q/5232 from north to south through Udupi-Mangalore Road which is a part of NH-17. A Tempo bearing Reg.No.KA-19/B 7104 driven by the second respondent from the opposite direction hit the same and thereby, he fell down and sustained fatal injuries. He was rushed to the hospital and on the way he succumbed to the injuries. He was aged 48 years, working as a Technician in BSNL and was earning a salary of **M.A.C.A.295/2011** 2 `15,000/- per month. His wife, minor children and mother had approached the Motor Accidents Claims Tribunal, Kollam (for short the 'Tribunal') claiming `25,00,000/- as compensation. Parties to this appeal are referred to hereinafter as the claimants and respondents for the sake of convenience. 3. Before the Tribunal, the claimants had let in oral evidence as PW1 and PW2 and documentary evidence as Exts.A1 to A8. No evidence was let in by the respondents. On appreciation of the entire evidence on record and upon consideration of the rival arguments put forth by either side, the Tribunal awarded `14,68,600/- as the compensation with interest @ 7.5% per annum from 11.8.2008, the date of the claim petition till realisation and proportionate costs and the third respondent was directed to deposit the amount with interest in favour of the claimants. 4. Aggrieved by the compensation so awarded by the Tribunal, the claimants have approached this Court in appeal. The main attack in this appeal was against the method by which the compensation was **M.A.C.A.295/2011** 3 arrived at by the Tribunal, which according to the claimants, is totally erroneous and unsustainable. It is contended by the learned counsel that the Tribunal has adopted split up multiplier method for the purpose of calculation of the compensation. According to him, the deceased, being a Technician in BSNL and aged only 48 years, could have continued in service till 60 years. According to him, the driving license, marked in evidence as Ext.A4 establishes the date of birth of the deceased as 15.5.1959. Therefore, the deceased was aged 49 years at the time of his death and the appropriate multiplier applicable is 13. According to him, the Tribunal has correctly taken the multiplier as 13, but erroneously based on split up multiplier method by adopting '9' as the multiplier for the period for which, Sri.N.K.Subair would have continued in service had his death not been occurred due to the motor accident and '4' as the multiplier for the remaining period of survival for reckoning the compensation. The learned counsel urged that the deceased being a Central Government employee would only retire at the age of 60, but the Tribunal mistakenly took 9 as the **M.A.C.A.295/2011** 4 multiplier, reckoning his age of retirement as 58 years. The counsel has also drawn our attention to the error committed by the Tribunal in taking only `12,247/- as the monthly income of the deceased for the purpose of computation of compensation for the 9 years' period of continuance of service and notional income of `3,000/- for the rest of the period. The learned counsel contended on the basis of the salary certificate of the deceased marked in evidence as Ext.A3 that though the monthly income is certified therein as `14,280/-, the Tribunal erroneously took `12,247/- (which takes in only the basic pay, D.A and H.R.A) as the monthly income for computation of compensation. According to him, the Tribunal ought to have taken `14,280/- as the monthly income. 5. We do not see any force in the said argument advanced by the learned counsel. According to us, the Tribunal has correctly taken the monthly income of the deceased as `12,247/- for the purpose of computation of compensation for dependency and therefore, interference is unwarranted. **M.A.C.A.295/2011** 5 6. The learned counsel has also drawn our attention to the fact that the Tribunal has deviated from the legally sustainable method of calculation of compensation by adding 30% to the sum arrived at after getting ¼[th] of the monthly income towards personal expenses deducted therefrom. According to him, the Tribunal ought to have added 30% to the actual salary in consideration of the future prospects of the deceased and deducted ¼[th] therefrom in consideration of his personal expenses, had he been alive. 7. In view of the dictum of the Apex Court in **Sarla Verma** v. **Delhi Transport Corporation** [2010(2) KLT 802 (SC)] the deceased being of the age group of 40-50 years, 30% has to be added to the actual salary of the deceased and 1/4[th] has to be deducted from the amount so arrived at based on the four numbers of dependents surviving him. The Tribunal ought to have adopted that method of computation and in that event, `11,941/- would be the appropriate multiplicand. It has come out in evidence that the deceased was an employee of the B.S.N.L. Therefore, indisputably he would retire **M.A.C.A.295/2011** 6 only at the age of 60 years and the split up multiplier with reference to his period of continuance in service and the remaining period of survival would be '12' and '1' respectively. If compensation for dependency is calculated for the period of subsistence of employment, by adopting the multiplier and multiplicand respectively as 12 and Rs.11,941/-, the amount payable as compensation would be `17,19,504/- (Rs.11,941/- x 12 x 12). The compensation for a period of one year after retirement when reckoned with the multiplier and multiplicand as '1' and `3000/- respectively, the amount payable as compensation would be `36,000/- (`3000 x 12). Therefore, the total sum payable as compensation under the head dependency would be `17,55,504/- and the same is awarded. The Tribunal has already awarded a sum of `14,33,574/- as compensation under the head. Therefore, a sum of `3,21,930/- is payable under the head, loss of dependency, additionally. 8. The learned counsel has contended that the Tribunal is highly unjustified in awarding a lump sum of `10,000/- under the **M.A.C.A.295/2011** 7 combined heads of transportation and funeral expenses. According to him, the Tribunal overlooked the dictum in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** which entitle the claimants as legal heirs of the deceased for a sum of `25,000/- under the sole head funeral expenses, in the absence of any evidence let in to establish higher expenses. The accident was occurred at UdupiMangalore Road and the victim died on the way to the hospital. His post mortem examination was conducted at Udupi itself and therefrom, his body was taken back to Kollam. It is contended by the counsel that the Tribunal failed to take note of those aspects and therefore the claimants are entitled to get an additional sum under the head transportation expenses. Accordingly, `10,000/- already granted by the Tribunal as per the impugned award is treated as the compensation payable towards transportation expenses and in view of the dictum in **Rajesh** 's case supra, an additional sum of `25,000/- is awarded as the compensation payable under the head funeral expenses in the absence of evidence to establish expenditure of a **M.A.C.A.295/2011** 8 higher sum. The contention of the learned counsel was that the Tribunal is unjustified in awarding only `10,000/- under the head loss of consortium in contravention of the direction of the Apex Court in **Rajesh** 's case (supra), to grant at least a sum of `1,00,000/- as compensation to the spouse of the deceased in the absence of evidence available to substantiate a claim for higher sum. 9. We see substance in the contention of the learned counsel and in compliance of the direction of the Apex Court, a sum of `1,00,000/is awarded under the head loss of consortium and found the first claimant alone entitled for that. Therefore, the first claimant would get `90,000/-, over and above `10,000/- already awarded by the Tribunal. According to the learned counsel, the deceased was survived by his wife aged 38 years, two minor girl children, each of them aged 16 years, another girl child aged 18 years and aged mother and therefore the Tribunal is highly unjustified in awarding `10,000/under the head loss of love and affection. We see force in the said argument and therefore, `1,00,000/- is awarded under the head loss of **M.A.C.A.295/2011** 9 love and affection. Therefore, the claimants are entitled to get `90,000/- over and above `10,000/- already awarded by the Tribunal. The counsel has also drawn our attention to the fact that though it is usual to grant `1,000/- as compensation under the head damages to clothing and other articles, the Tribunal did not grant any sum under that head in ignorance. Upon perusal of the impugned award, omission is noticed and we are inclined to award Rs.1,000/- under the said head. Computed in the aforesaid manner, the claimants would be entitled to get a total sum of `5,27,930/- rounded off to `5,28,000/additionally. In the result, the M.A.C.A. is allowed and the claimants are found entitled to get an additional sum of `5,28,000/- (Rupees Five Lakh Twenty Eight Thousand only) over and above the sum already awarded by the Tribunal as per the impugned award with interest @ 8% per annum from the date of the claim petition till realisation. The third respondent shall deposit the enhanced sum with interest as aforesaid within three months from the date of receipt of a **M.A.C.A.295/2011** 10 copy of this judgment. In case of default in paying the sum as aforesaid within the stipulated period, the claimants would be entitled to realise interest @ 9% per annum from the date of the claim petition till realisation. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH (JUDGE)** **spc/**