IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938
MACA.No. 1531 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 124/2009 of M.A.C.T.,KOLLAM DATED 06-08-2011
APPELLANT(S)/3RD RESPONDENT:
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THE ORIENTAL INSURANCE CO.LTD THODUPUZHA, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.
BY ADVS.SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI
RESPONDENT(S)/CLAIMANTS:
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1. MANJU, W/O.LATE KISHORE KUMAR, THIRUVONAM VEEDU, ARUNOOTTIMANGALAM DIVISION, MANGAD P.O., KILIKOLLOOR, KOLLAM, PIN-691001.
2. MAHIPAL (MINOR), S/O.LATE KISHORE KUMAR, THIRUVONAM VEEDU, ARUNOOTTIMANGALAM DIVISION, MANGAD P.O., KILIKOLLOOR, KOLLAM, PIN-691001.
3. BHARATH KISHORE (MINOR),
S/O.LATE KISHORE KUMAR, THIRUVONAM VEEDU, ARUNOOTTIMANGALAM DIVISION, MANGAD P.O., KILIKOLLOOR, KOLLAM, PIN-691001.
(RESPONDENTS 2 & 3 ARE MINORS AND ARE REPRESENTED BY THEIR MOTHER MANJU IST RESPONDENT).
4. AMBUJAKSHI AMMA, M/O.LATE KISHORE KUMAR, KUNNUVILA, KIZHAKKATHIL, ARUNOOTTIMANGALAM DIVISION -DOPIN-691001.
BY ADV. SMT.V.V.RISANI BY ADV. SRI.V.JAYAPRADEEP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2016, ALONG WITH CO. 85/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.**
## **==========================**
## **M.A.C.A. No.1531 OF 2012 & CROSS OBJECTION No.85 OF 2015 ==========================** Dated this the 17[th] day of October, 2016
## **JUDGMENT**
_Ravikumar, J._
This appeal is preferred by the third respondent in O.P.(MV). No.124 of 2009 on the files of the Motor Accidents Claims Tribunal, Kollam. The appellant is the insurer of the offending vehicle involved in the accident that led to the filing of the claim petition. Essentially, this appeal has been filed taking up the contention that the compensation granted by the Tribunal as per the impugned award is exorbitant. The respondents in the appeal who are the claimants filed the captioned cross objection contending that the compensation granted by the Tribunal is not just compensation and therefore, they seek for its enhancement.
**M.A.C.A.1531/2012 & C.O.85/2015** 2
2.We have heard Sri.George Cherian, the learned senior counsel for the appellant and also Sri.Jayapradeep, the learned counsel appearing for the respondents. The accident occurred on 1.10.2008. The deceased Kishore Kumar was a Doctor in Government District Ayurveda Hospital, Kollam. On that fateful day, he was travelling along with his wife and children in a Maruthi car bearing Reg.No.KL-
02/AA 6226. The offending vehicle which is a bus bearing Reg.No.KL-4/N 4253 dashed against their car. The appellant sustained fatal injuries and succumbed to them on 2.10.2008. He was then aged only 38 years. The Tribunal, on appreciation of the evidence consisting of oral testimonies of the first respondent/first claimant and the documentary evidence consisting of Exts.A1 to A9 series and also the rival contentions, passed the impugned award for a total compensation of `42,63,437/- which is rounded off to `42,64,000/- with interest at 7.5% from the date of the petition till realisation. The compensation granted by the Tribunal is stated to be exorbitant by the appellant and it is inadequate according to the
**M.A.C.A.1531/2012 & C.O.85/2015**
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respondents herein/the claimants therein.
3.The learned counsel for the appellant-insurance company submitted that the Tribunal took the entire amount of salary shown in Ext.A7 without any deduction. The submission is that in the light of the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the starting point for calculating compensation ought to have been the actual income less the tax payable. It is submitted that the claim of the claimants regarding the monthly income of the deceased supported by Ext.A7 would reveal that the annual income would fall within the taxable range and hence, while effecting calculation of compensation, the tax payable ought to have been deducted. The learned counsel for the appellant further submitted that a close scrutiny of the impugned award, more particularly, paragraphs 12 and 13 would reveal that the Tribunal has fixed the monthly income not merely by accepting the figure of salary shown in Ext.A7 and it would reveal that the Tribunal effected 50% addition to the income reckoning the fact that the
**M.A.C.A.1531/2012 & C.O.85/2015** 4
deceased was aged below 40 years and he was a salaried person. The learned counsel further submitted that the Tribunal effected only deduction of ⅓ of the income taking into account the number of petitioners and in view of the decision in **Sarla Verma** 's case, deduction towards personal expenses ought to have been made taking
into account the number of dependents and not the number of claimants. The learned counsel for the claimants submitted that all the claimants were the dependents of the deceased person and they are four in numbers and in such circumstances, instead of making ⅓ deduction, the Tribunal ought to have made deduction of only ¼ of the income. That apart, it is submitted by the learned counsel for the claimants/respondents herein that in the light of the decision in
**Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],**
the compensation granted by the Tribunal under the heads of loss of consortium and funeral expenses is meagre and they require an upward modification. In fact, such grounds have been raised in the cross objection. Evidently, towards funeral expenses, only a sum of
**M.A.C.A.1531/2012 & C.O.85/2015** 5
`5,000/- was granted and only a sum of `10,000/- was granted towards loss of consortium. The learned counsel for the claimants also submitted that the amount granted towards loss of love and affection is also meagre. In the light of the rival contentions, the question to be decided is whether an interference with the impugned award is required and if at all it is required, whether it is to be scaled down or enhanced at the instance of the respondents.
4.As noticed hereinbefore, the crux of the contentions of the learned counsel for the appellant is that the Tribunal failed to make any deduction from the actual income towards income tax payable. True that there is force in the said contention especially in the light of the decision in **Sarla Verma** 's case (supra). Paragraph 20 of the said decision would reveal that the starting point for calculating compensation, in akin to the one on hand, should be the actual income less income tax payable. In such circumstances, since the Tribunal failed to effect any deduction reckoning the tax payable, the learned counsel for the appellant is justified in taking up the contention that
**M.A.C.A.1531/2012 & C.O.85/2015** 6
the Tribunal went wrong in effecting calculation of the compensation payable. But at the same time, the question is whether on that sole ground, the impugned award invites interference. In that context, the question to be looked into is whether there is any merit in the contention raised by the learned counsel for the respondents herein/claimants. In the light of the decision in **Rajesh** 's case (supra), a minimum of `25,000/- shall be granted towards funeral expenses and a minimum of `1,00,000/- shall be granted as consortium to the surviving spouse in a claim for compensation for death moved under section 166 of the M.V.Act. Taking note of the fact that the respondents 2 and 3 were minors, the learned counsel is also justified in pointing out that the amount fixed towards loss of love and affection viz., `15,000/- is also inviting interference. As already noticed, the Tribunal went wrong in not effecting any deduction from the salary reckoning the tax payable for the purpose of fixing the starting point for calculation of compensation. In this case, a perusal of Ext.A7 salary slip would reveal that the deceased had availed a loan
**M.A.C.A.1531/2012 & C.O.85/2015** 7
from the General Provident Fund and he was effecting repayment towards the loan at the rate of `4,160/- per month. That aspect was not taken into account by the Tribunal while fixing the monthly income. There cannot be any doubt with respect to the fact that the said amount also ought to have been deducted while fixing the monthly income. True that there is nothing on record to show that what was the exact period of repayment. Even while taking into account all such aspects regarding the infirmities infected the impugned award as is evident from the rival contentions as mentioned above, we are of the considered view that we shall not lost sight of the fact that compensation granted is for the death of a salaried person who was aged only 38 years and that too, while working as a doctor in Government Ayurveda Hospital. The inadequacy of compensation under different heads mentioned hereinbefore would effect the exorbitancy of compensation as alleged by the appellant. In other words, on a careful scanning of all relevant factors and rival contentions, we have no hesitation to hold that the Tribunal awarded
**M.A.C.A.1531/2012 & C.O.85/2015**
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only just compensation under the impugned award. In terms of the provisions under Section 168 of the Motor Vehicles Act, a Claims Tribunal is bound to grant just compensation in the case of death as also for personal injuries. When once it is found that what is granted by the Tribunal is nothing but a just compensation, we find no scope for any appellate interference, either at the instance of the appellant or at the instance of the cross objectors, the claimants. The upshot of the discussions is that this appeal and also the cross objection are liable to fail and accordingly, they are dismissed and in such circumstances, there will be no order as to costs in the appeal and also in the cross objection.
**Sd/C.T. RAVIKUMAR (JUDGE)**
**Sd/-**
**K.P.JYOTHINDRANATH (JUDGE)**
**spc/**
## **M.A.C.A.1531/2012 & C.O.85/2015**
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**M.A.C.A.1531/2012 & C.O.85/2015**
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## **C.T. RAVIKUMAR, J.**
**JUDGMENT September, 2010**
## **M.A.C.A.1531/2012 & C.O.85/2015**
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