The Divisional Manager, The New India Assurance Company Ltd. v Safiyath Beevi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939** **RP.No. 59 of 2018 IN MACA. 3068/2016** **AGAINST THE ORDER/JUDGMENT IN MACA 3068/2016 of HIGH COURT OF KERALA REVIEW PETITIONER/APPELLANT IN MACA NO.3068/2016** **THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD, 2ND FLOOR, KOTTARATHIL BUILDING, PALAYAM, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G. ROAD, ERNAKULAM** **BY ADV.SRI.LAL GEORGE** ## **RESPONDENT/RESPONDENTS IN MACA NO.3068/2016** **1. SAFIYATH BEEVI** **W/O. LATE MOHAMMED KUNJU, AGED 71 YEARS, RESIDING AT AJMAL MANZIL, NEAR GOVT. ITI, CHANDAMATHOPE P.O, PERINAD VILLAGE, KOLLAM TALUK** ## **2. LAILA BEEVI,** - **D/O. LATE MUHAMMED KUNJU,** - **AGED 46 YEARS, RESIDING AT AJMAL MANZIL, NEAR GOVT ITI, CHANDAMATHOPE P.O, PERINAD VILLAGE, KOLLAM TALUK** **3. FATHIMA BEEVI,** **W/O. LATE MUHAMMED KUNJU, AGED 30 YEARS, RESIDING AT AJMAL MANZIL NEAR GOVT. ITI, CHANDAMATHOPE P.O, PERINAD VILLAGE, KOLLAM TALUK** **4. NAZEERA BEEVI,** **W/O. SALAHUDEEN, RESIDING AT S.N. MANZIL, PALLIPURAM P.O, THIRUVANANTHAPURAM** **5. SALAHUDHEEN, S/O. IBRAHIM KUNJU, RESIDING AT S.N MANZIL PALLIPPURAM P.O, THIRUVANANTHAPURAM** **RP.No. 59 of 2018 IN MACA. 3068/2016** **-2--** ## **6. MAHESH,** **S/O. RAMAKRISHNAPILLAI, RESIDING AT MUNDATHIARUVILA HOUSE, CHATHINAMKULAM, CHANDANATHOPE P.O, KOLLAM** ## **7. THE BRANCH MANAGER** **THE ORIENTAL INSURANCE COMPANY LTD, P.B NO.17, POST OFFICE JN., PUNALUR -691305** ## **8. SHAJAHAN,** **S/O. LATE MOHAMMED KUNJU, RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O, PERINAD VILLAGE, KOLLAM TALUK** ## **9. SALIM,** **S/O. LATE MOHAMMED KUNJU, RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O, PERINAD VILLAGE, KOLLAM TALK** **10. NOORJAHAN, D/O. LATE MOHAMMED KUNJU, RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O, PERINAD VILLAGE, KOLLAM TALUK.** **11. SABEENA BEEVI, D/O. LATE MOHAMMED KUNJU, RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O, PERINAD VILLAGE, KOLLAM TALUK** **R BY SRI.P.JAYASANKAR R BY SRI.S.SREEKUMAR (KOLLAM)** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.K.ABDUL REHIM & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **R.P.No. 59 of 2018 in MACA No.3068 of 2016** ## **------------------------------------------------------** ## **Dated this the 6[th] day of February, 2018** ## **ORDER** ## **C.K.Abdul Rehim,J.** The Review Petition is filed on the ground that this court while passing the judgment in MACA No.3068/2016 had omitted to note the settled legal position that, while computing the compensation for 'loss of dependency' with respect to the death of a bachelor, 50% need to be deducted towards personal expenses. 2. Learned counsel for the Revision Petitioner contended that, even though this court had noted about such a contention raised in the Appeal Memorandum, the judgment does not contain any specific reasoning to deviate from the settled legal position. 3. It is true that the appellant had raised a contention that, the Tribunal went wrong in making a deduction of 1/3[rd] of the income towards personal R.P.No. 59 of 2018 in MACA No.3068 of 2016 2 expenses. It was contended that the deceased being a bachelor, the deduction towards personal expenses ought to have been at 50%, as per the dictum contained in _**Sarla Verma vs. Delhi Transport Corporation [2010**_ _**(2) KLT 802(SC)]**_ . In the judgment sought to be reviewed, this Court, after noticing the above contention, had discussed about the factual circumstances prevailing. It was found that, the evidence would reveal that, the 3[rd] claimant is an unmarried sister of the deceased and the 2[nd] claimant is a sister of the deceased who was deserted by her husband having three children. This court noticed that, all of them were exclusively depending on the deceased for their livelihood. This court reiterated the finding of the Tribunal that, the claimants, being dependants of the deceased, are entitled to get just and reasonable compensation. This court categorically found that, the appellant had not denied those factual aspects before the Tribunal. This Court observed that, the findings R.P.No. 59 of 2018 in MACA No.3068 of 2016 3 of the Tribunal regarding dependency is based on the evidence available on record and therefore the finding is in no manner illegal, erroneous or incorrect. Hence this Court denied interference with respect to the findings of the Tribunal. 4. Learned Counsel for the Revision Petitioner had drawn out attention to the legal position remaining settled in the decision of the hon'ble Supreme Court in _**Sarla Verma**_ (supra). In paragraph 31 of the said decision it is categorically held that; “Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also a possibility of his getting married in a short time, in which event the contribution to the parents and the siblings is likely to be cut drastically”. 5. The dictum contained in _**Sarla Varma**_ (supra) was reiterated in _**Reshma kumari and others v. Madan**_ R.P.No. 59 of 2018 in MACA No.3068 of 2016 4 ## _**Mohan and another (2013 (9) SCC 65)**_ . In paragraph 43.6 of the said judgment it is observed that; “In so far as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraph 30,31 and 32 of the judgment in Sarla Verma subject to the observations made by us in paragraph 41 above” The principles laid in _**Sarla Verma**_ (supra) which was followed in _**Reshma Kumari**_ (supra) (three Judges decision) was again reiterated in _**M.Mansoor and another v. United India Insurance Company Limited and another [(2013) 15 SCC 603**_ ]. In the said case, the honorable apex court had reversed the findings rendered by the Tribunal and the High Court, in making a deduction of 1/3[rd] towards personal and living expenses of the deceased, and fixed the deduction at 50% by observing that the deceased was a bachelor and the claimants are his parents. R.P.No. 59 of 2018 in MACA No.3068 of 2016 5 6. In a recent decision of a constitutional bench of the honorable Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662**_ _**(SC)],**_ the apex court after referring to the decisions of _**Sarala Varma**_ and _**Reshma Kumari**_ observed that; 'We think it appropriate to state that as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the Tribunal and court should be guided by the conclusion 43.6 of Reshma Kumar's case.” 7. Based on the principle remaining settled through the decisions cited above, there is merit in the contention of the review petitioner that the deduction for personal and living expenses ought to have been made at 50%. But we take note of the fact that the claimants in the present case include the mother and two sisters of the deceased. It has come out in evidence that, the 2[nd] claimant is a sister of the deceased having three children and she was deserted by her husband. It is proved in evidence that, she along with the three children are living R.P.No. 59 of 2018 in MACA No.3068 of 2016 6 by depending upon the income of the deceased. It has also come out in evidence that the 3[rd] claimant is an unmarried sister of the deceased. Therefore it has to be found that, at the time of death the widowed mother, two sisters and three children of one of the sisters were depending upon the income of the deceased for their livelihood. ## 8. In paragraph 31 of the **Sarla Verma** (supra) the observation contained is to the effect that; “In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself.” (emphasis supplied) In paragraph 32 it is categorically stated that; “However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and the contribution to the family will be taken as two-third.” ## 9. Therefore, the principle settled in _**Sarla Verma**_ R.P.No. 59 of 2018 in MACA No.3068 of 2016 7 (supra) was subjected to exceptions in special circumstances as mentioned above. In _**Reshma Kumari**_ (supra) as well as in _**Pranay Sethi**_ (supra), the principle enunciated in **Sarla Varma** was reiterated and confirmed. But such confirmation will have to be construed as subject to exceptions mentioned in **Sarla Verma** itself. 10. When the factual aspects involved in the case at hand is analysed based on the above proposition, we take note of the findings arrived by this Court that, the deserted sister and her three children as well as the unmarried sister and the widowed mother are dependent upon the deceased. Therefore we are of the opinion that the factual situations and circumstances have persuaded to treat this case as one containing special circumstances warranting a deviation from the general principles. Therefore we are of the opinion that there exists no error apparent on the face of the record warranting any review R.P.No. 59 of 2018 in MACA No.3068 of 2016 8 of the judgment. . In the result, the review petition is hereby dismissed. **C.K.ABDUL REHIM JUDGE** **SHIRCY.V JUDGE** smm