Susamma Thomas and others v. Santosh V.S. and others

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 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 MACA.No. 1358 of 2011() ----------------------OPMV.1574/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT(S): PETITIONERS ------------------------- 1. SUSAMMA THOMAS, AGED 47 YEARS, W/O.LATE P.S.THOMAS, PUTHUR MAPPURATHU HOUSE, KOZHENCHERRY EAST P.O., KURANGAMALA, KOZHENCHERRY VILLAGE, PATHANAMTHITTA (DISTRICT). 2. ALEYAMMA THOMAS, AGED 27 YEARS, D/O.LATE P.S.THOMAS,PUTHUR MAPPURATHU HOUSE, KOZHENCHERRY EAST P.O., KURANGAMALA, KOZHENCHERRY VILLAGE, PATHANAMTHITTA (DISTRICT). 3. RACHEL P.THOMAS, AGED 23 YEARS, D/O.LATE P.S.THOMAS,PUTHUR MAPPURATHU HOUSE, KOZHENCHERRY EAST P.O., KURANGAMALA, KOZHENCHERRY VILLAGE, PATHANAMTHITTA (DISTRICT). 4. JOLLY P.THOMAS, AGED 20 YEARS, D/O.LATE P.S.THOMAS,PUTHUR MAPPURATHU HOUSE, KOZHENCHERRY EAST P.O., KURANGAMALA, KOZHENCHERRY VILLAGE, PATHANAMTHITTA (DISTRICT). 5. ALEYAMMA SAMUEL, AGED 73 YEARS, W/O.SAMUEL, PUTHUR MEPPURATHU HOUSE, KOZHENCHERRY EAST P.O., KURANGAMALA, KOZHENCHERRY VILLAGE, PATHANAMTHITTA (DISTRICT). BY ADV. SRI.V.MANOJ KUMAR SRI.IYPE JOSEPH RESPONDENT(S): RESPONDENTS -------------------------- 1. SANTHOSH V.S., S/O.SAMUEL VARUGHESE, VATTAMALA MUDUPPEL, KURAVANKUZHY, KOIPURAM, PIN 689 548, (DRIVER OF THE BUS). **.....2** **-: 2 :-** 2. MARILYAMMA ABRAHAM, PAZHOOR HOUSE, NELLIKKALA P.O., ELANTHOOR, PIN 689 543, (REGISTERED OWNER OF THE BUS). 3. BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD., COLLEGE ROAD, PATHANAMTHITTA- 689 645, (INSURER). ADV. SRI.PMM.NAJEEB KHAN FOR R3 SRI.ZIAD REHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ.** *** * * * * * * * * * * * *** M.A.C.A.No. 1358 of 2011 ---------------------------------------Dated this the 24[th] day of October 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimants are the appellants. They are the widow, aged 39 years and children aged 19 years, 15 years and 12 years as also the mother aged 65 years of deceased Thomas. The claimants/appellants claimed compensation for the loss suffered by them as a result of the death of Thomas, who succumbed to the injury suffered in a motor accident which took place on 24/11/2002. He was aged 42 years on the date of his death. He was a gardener by avocation. He was employed at the St.Thomas College, Kozhancherry. He was drawing a monthly salary of Rs.5,990/- at the time of his death. 2. The tribunal awarded a total amount of Rs.6,76,040/- as per the details given in paragraph 11 of the impugned award. |**_Sl.No._**|**_Head of the claim_**|**_Amount (Rs.)_**| |---|---|---| |1.|Loss of dependency (Rs.5990x12x2/3x14x80/100)|5,75,040/-| |2.|Loss of estate/loss of expectancy of life|15,000/-| |3.|Loss of consortium to first petitioner widow|15,000/-| ## **M.A.C.A. No.1358 of 2011** -: 2 :- |**_Sl.No._**|**_Head of the claim_**|**_Amount (Rs.)_**| |---|---|---| |4.|Loss of love and affection and parental care to<br>petitioners 2 to 4 children|30,000/-| |5.|Loss of love and affection to fifth petitioner mother|5,000/-| |6.|pain and sufferings endured by the deceased|20,000/-| |7.|Transportation expenses and damage to clothing|2,500/-| |8.|Bystander expenses|500/-| |9.|Funeral and allied expenses|10,000/-| |10|Medical and treatment expenses|3,000/-| ||Total|**6,76,040/-**| 3. The challenge raised in this appeal is only against the quantum of compensation awarded under the head of loss of dependency. As stated earlier, the salary of the deceased was Rs.5,990/-. He was aged 42 years and for persons in the age group of 40-45 years, going by **Sarla Verma v. D.T.C [(2009)6 SCC 121]** 14 is the multiplier to be adopted. The tribunal awarded a total amount of Rs.5,75,040/-. The tribunal had reckoned 15 as the multiplier. But, out of the total compensation, the tribunal deducted 20% of the amount taking into account the fact that one of the dependents had applied for employment under the employer of the deceased on compassionate grounds. ## **M.A.C.A. No.1358 of 2011** -: 3 :- 4. No better materials were shown. It was thus that the compensation under the head of loss of dependency was fixed at `5,75,040/- (`5990/- x 12 x 2/3 x 15 x 80/100). The learned counsel for the appellants assails the impugned award on various grounds. The learned counsel, first of all, contends that the deduction of 20% from the total amount of compensation on the mere possibility of one of the legal heirs securing employment under the same employer is grossly incorrect. It is submitted that there is absolutely nothing to show that there is such a scheme for employment for the dependents of those who died while in service. The mere fact that the application has been filed invoking the compassion of the employer of the deceased is no valid justification for deduction of 20% from the total amount of compensation. There is nothing to show that such an employment has been secured. The employer may or may not grant employment to one of the legal heirs of the deceased. Merely anticipating such indulgence on the part of the employer, no deduction ought to have been made, contends the learned counsel for the appellants. The fact that a philanthropist may take pity on the plight of the legal heirs of the victims and help them is no reason for the Tribunal to reduce the quantum of compensation which is found to be due under law, contends ## **M.A.C.A. No.1358 of 2011** -: 4 :- counsel. 5. We find merit in the contention. There is nothing in this case to show that any of the legal heirs of the deceased has secured employment or has the right to secure such employment. We are, in these circumstances, of the opinion that the deduction of 20% from the total compensation under the head of loss of dependency is not justified. 6. The learned counsel for the appellants submits that the Tribunal had erred in deducting 2/3[rd] of the salary of the deceased as his personal/living expenses. The learned counsel relies on the relevant observations in paragraph-30 of the judgment in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] to contend that in a case like the instant one where the deceased as well as his wife, three children and mother were depending on his income, the permissible deduction of living expenses is only 1/4[th] of the income of the deceased. We find merit in that contention. The same deserves to be accepted. 7. The learned counsel for the insurance company promptly points out that for a person of the age group 40 to 45 years going by the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], only 14 can be accepted as the multiplier. We accept that contention also. ## **M.A.C.A. No.1358 of 2011** -: 5 :- 8. The above discussions lead us to the conclusion that the appellants are entitled for an enhanced compensation under the head of loss of dependency. The appellants are hence entitled to a further amount of `1,79,700/- (Rupees one lakh seventy nine thousand and seven hundred only) as compensation under the head of loss of dependency as per the details shown below: Loss of dependency (`5990/- x 12 x ¾ x 14 = - `7,54,740/- minus 5,75,040/-) `1,79,700/- We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. ## 9. In the result: (a) This appeal is allowed in part. (b) The appellants are found entitled to a further amount of `1,79,700/- (Rupees one lakh seventy nine thousand and seven hundred only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified in the impugned award. Of course, for the period of delay enhanced amount of compensation shall not carry any interest as ## **M.A.C.A. No.1358 of 2011** -: 6 :- already held by us in the application for condonation of delay. (d) We make it clear that the proportionate cost before the Tribunal shall be payable on the entire amount of compensation awarded as specified in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). - (e) All other directions of the Tribunal are upheld. - (f) Deficit, if any, in court fee already paid shall be cured before release of the enhanced amount is claimed. Sd/- **R. BASANT (Judge) Sd/-** **M.C. HARI RANI (Judge)** ## **Nan/** **//true copy// P.S. to Judge**