Thankamma Sebastian & Others v. Janil Kumar L. & The United India Insurance Co. Ltd.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 MACA.No. 1231 of 2005() ----------------------OPMV.61/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... ## APPELLANTS-PETITIONERS: ------------------------------------- 1. THANKAMMA SEBASTIAN, PULICKAL NAZERETH HILL P.O., KURAVILANGADU. 2. SMITHA ROBY, VATHAKKATTEL, MULAKKULAM P.O. 3. SNEHA GEORGE, SAGARIKA, MANJOOR P.O. 4. SWEETY SEBASTIAN, PULICKAL, NAZERETH HILL P.O., KURAVILANGADU. 5. MATHEWS SEBASTIAN (MINOR) -DO- -DOREPRESENTED BY NEXT FRIEND AND GUARDIAN 1ST APPELLANT. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS: --------------------------- 1. JANIL KUMAR L., MANIMALAYIL HOUSE, HOUSE NO.11/192, KURIANAD P.O., PALA. 2. THE UNITED INDIA INSURANCE CO. LTD., MOOVATTUPUZHA. ADV. SRI.A.R.GEORGE FOR R2 SRI.P.C.HARIDAS FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## A.K. BASHEER & P.Q. BARKATH ALI, JJ. ## ------------------------------------------------------ ## M.A.C.A. 1231 OF 2005 ------------------------------------------------------ ## Dated: JANUARY 25, 2010 ## JUDGMENT ## Basheer, J. The appellants are the legal heirs of deceased P.M. Sebastian who succumbed to the injuries sustained by him in a motor accident. They impugn the award passed by the Tribunal. The only challenge is against the adequacy of the compensation awarded to them by the Motor Accidents Claims Tribunal. As against the claim of Rs.15 lakhs, the Tribunal has awarded a sum of Rs.5,72,500/- with 9% interest thereon from February 6, 2001 till realisation along with costs of Rs.14500/-. According to the appellants the amount awarded is too low and inadequate. 2. It is not in dispute that deceased Sebastian was knocked down by a jeep bearing registration No.KRO 2487 while he was driving his motor cycle bearing registration No.KL-7T 9904. Respondent No.1 was the owner-cum-driver of the said offending vehicle. Sebastian succumbed to the injuries while he was undergoing treatment in the Medical College Hospital at Kottayam. 3. Late Sebastian was working as a Bill Collector in the District Co-operative Bank at the time of his death. He was drawing a salary of Rs.10531/- as revealed from Ext.A12 salary certificate issued by MACA 1231/2005 2 the Bank. The Tribunal found that the accident occurred due to the rash and negligent driving of respondent No.1 and that the offending vehicle was insured with respondent No.2 at the time of the accident. 4. The appellants/claimants in their application filed under Sec.166 of the Motor Vehicles Act restricted their claim to Rs.15 lakhs under various heads. Exts.A1 to A13 were marked on the side of the appellants. No document was marked on the side of the respondents. Both sides did not adduce any oral evidence. 5. The Tribunal after evaluating the documentary evidence available on record came to the conclusion that the appellants will be entitled to realise a sum of Rs.5,72,500/- with 9% interest thereon as indicated above. 6. It is not in dispute that deceased Sebastian was born on 12.4.1951. So, at the time of his death he was aged 49 years and 8 months. Ext.A12 salary certificate revealed that his basic pay was Rs.7200/-. He was getting dearness allowance of Rs.2952/-, HRA Rs.319/- and bill collection allowance of Rs.60/-. Thus, the total salary receivable by the deceased was Rs.10531/-. The salary certificate further referred to certain deductions towards Provident Fund, LIC, housing loan, festival advance etc. which came to a total sum of Rs.7653.68. Thus, the net salary that was being taken home by the MACA 1231/2005 3 deceased as revealed from Ext.A12 certificate was Rs.3467.32. 7. The Tribunal, while reckoning the monthly income of the deceased, placed reliance on Ext.A13 certificate also which showed that Rs.558/- which was being recovered from the deceased towards a housing loan had already been repaid. Further, it was noticed by the Tribunal that the festival advance taken by the deceased would have been repaid by him by February 2001 going by the deductions that were being made from his salary of three months. Thus, the Tribunal fixed the net salary at Rs.5015/- as against the figure of Rs.3467.32 shown in Ext.A12 certificate. 8. The Tribunal proceeded to reckon the loss of dependency taking 13 as the multiplier. Since it was noticed by the Tribunal that the deceased would have retired at the age of 60, the loss of dependency was reckoned as Rs.6,01,800/- on the basis of the above multiplier and the net salary of Rs.5015/- for a period of ten years. For the remaining three years, the Tribunal kept in view, the pension amount of Rs.4500/- which the deceased might have got had he retired from service after ten years. This amount was reckoned as Rs.1,62,000/-. The Tribunal deducted 1/3[rd] from the aggregate sum and fixed the quantum for loss of dependency at Rs.5,09,200/-. Appellant No.1, the wife, was awarded Rs.10,000/- towards loss of MACA 1231/2005 4 consortium and appellants 2 to 5, the four children, were jointly awarded Rs.20,000/- towards loss of love and affection. A sum of Rs.16800/- was awarded towards the damage caused to the motor cycle. In addition to the above, a sum of Rs.2000/- was awarded towards transportation charges to the hospital, Rs.500/- towards damage to clothing, Rs.4000/- towards funeral expenses and Rs.10,000/- towards pain and suffering. Thus compensation was quantified at Rs.5,72,500/-. 9. It is contended by Sri Mathew John, learned counsel for the appellant, that the Tribunal has committed serious illegality while calculating the monthly salary. It is pointed out by him that the deductions as reflected in Ext.A12 were not deductible at all. The other contention raised by the learned counsel is that while applying the multiplier, the Tribunal erred in reckoning the loss of dependency for ten years at a particular rate on the basis of the salary of the deceased and then, for the remainder of three years, he based the calculation on the probable pension that the deceased would have drawn after his retirement. He further points out that the deceased admittedly was not an assessee to income-tax. It is further contended by the learned counsel that the deceased being the head of a family consisting of six members, the Tribunal erred in deducting MACA 1231/2005 5 1/3[rd] from the monthly salary. In this context, learned counsel placed heavy reliance on the decision of the Supreme Court in _Sarla Verma and others v. Delhi Transport Corporation and another -_ (2009) 6 SCC 121. Learned counsel points out that in _Sarla Verma_ 's case (supra) it has been laid down that appropriate increase in the actual salary of the deceased has to be made in view of the imponderables and uncertainties in life. In fact, their Lordships laid down that as a rule of thumb an addition of 50% of actual salary can be had towards future prospects where the deceased had a permanent job and was below 40 years of age. It was further clarified that the addition should be only 30% if the age of the deceased was 40 - 50 years. Of course, it was further laid down that there should be no addition where the age of the deceased is more than 50 years. It is contended by the learned counsel that since the appellant was admittedly below the age of 50 years, atleast 30% increase would have been extremely reasonable. In this context he further points out that since the annual income of the deceased was not within the taxable range, his salary should have been reckoned as actual salary less tax as held in that judgment. 10. However, it is pointed out by learned counsel for respondent No.2, insurance company, that the deceased was only four months MACA 1231/2005 6 short of 50 and therefore the contention of the appellants to reckon an increase of 30% of actual salary will be irrational and unsustainable. He further contends that the Tribunal was perfectly justified in deducting 1/3[rd] towards personal expenses of the deceased. Similarly, the Tribunal had kept in view the fact that the deceased would have retired at the age of 60 (that is, approximately within ten years from the date of the accident) and therefore while applying the multiplier, the Tribunal had to necessarily reckon the post-retirement scenario of the deceased as well. It was therefore that the probable monthly pension was taken note of by the Tribunal. 11. The short question that arises for consideration is whether any interference is warranted with the award passed by the Tribunal. 12. As mentioned earlier, the deceased was four months short of 50 at the time of his death. His wife was aged 46 and three daughters were 24, 22 and 19 respectively. The youngest son was just 15 when the tragedy struck the family. The deceased was a bill collector in the Kottayam District Co-operative Bank with a basic pay of Rs.7200/- p.m. Undoubtedly, the deceased had a heavy burden on his shoulders. His three daughters were of marriageable age at the time of the tragic death of the head of the family. 13. There can be no dispute that 13 is the apt multiplier going MACA 1231/2005 7 by the age of the dependants. The Tribunal, while considering Ext.A12 certificate, took note of the various deductions as indicated in the salary certificate which showed that the deceased was carrying home a Pay packet of Rs.3467/- every month. But, nevertheless, the Tribunal added Rs.990/- which was the monthly deduction being effected from the salary towards festival advance availed of by the deceased and also Rs.558/- towards the housing loan which was admittedly cleared. It was thus that the Tribunal arrived at the figure of Rs.5015/- as the monthly income of the deceased. 14. As mentioned earlier, the deceased would not fall within the taxable range going by his annual income and therefore the words “actual salary” should be read as “actual salary less tax” as held by the Apex Court in _Sarla Verma's case (supra)._ The deductions noted in Ext.A12 were towards provident fund, LIC, employees' welfare fund etc. apart from festival advance and housing loan referred to above. The total deductions as indicated in Ext.A12 came to Rs.7063.68. If we ignore the deductions, the total salary would come to Rs.10531/-. Going by the principle laid down by the Apex Court, we are of the view that the monthly salary of deceased Sebastian has to be taken as Rs.10531/- at the time of his death. Applying the multiplier of 13 as adopted by the Tribunal, the amount would come to Rs.16,42,836/- MACA 1231/2005 8 without deduction. 15. The next question is what should be the permissible deduction towards the personal and living expenses. In _Sarla Verma's case (supra)_ it was noticed by their Lordships after a survey of several earlier decisions that the deduction should be 1/3[rd] if the deceased was married and the number of dependent family members is 2 - 3 and the deduction should be 1/4[th] where the number of dependent family members is 4 - 6. Learned counsel contends that since the number of dependent family members of deceased Sebastian at the time of his death was admittedly 5, the deduction should be 1/4[th] . 16. In this context it has to be noticed that the deceased was nearing 50 at the time of his death (four months short of 50) and therefore we have not given any addition to his salary going by the principle laid down by the Apex Court in paragraph 24 of the judgment. Further, we have reckoned the monthly salary of the deceased without any deduction. We have applied a multiplier of 13 ignoring the fact that the deceased Sebastian would have retired approximately after ten years from the date of his death. Keeping in view the above facts and circumstances, we are satisfied that the deduction of 1/3[rd] made by the Tribunal need not be disturbed. The amounts awarded by the Tribunal under the other heads shall remain MACA 1231/2005 9 intact. Therefore, going by the above deduction, the amount payable to the appellants for loss of dependency would come to Rs.10,95,224/-. Thus the additional compensation payable to the appellants towards loss of dependency would come to Rs.5,86,024/-. The additional amount of compensation shall carry interest at the rate of 7.5% from 6.2.2001 till the date of realisation. The award is modified to the above extent. Appeal is disposed of in the above terms. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-