Thressiamma Sebastian v. Shoji Ram, Sujan Lal, The National Insurance Co. Ltd., Bhilwara (DT), Rajasthan; Addl. Sugunan Lal; Nisha T. Bastin; Jijo Sebastian; Jincy Bastin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937** ## **MACA.No. 1112 of 2006 ( )** **-------------------------AGAINST THE AWARD IN OPMV 288/2001 of MACT PALA DATED 11-11-2005** ## **APPELLANT(S)/PETITIONER/APPELLANT:** **------------------------------------------------------------------** **THRESSIAMMA SEBASTIAN, AGED 48, W/O. M.T.SEBASTIAN, MOOZHARIETTU HOUSE VATTUKULAM P.O., KANAKKARY VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT.** ## **BY ADV. SRI.SREELAL N.WARRIER** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** **1. SHOJI RAM, S/O. GANGA RAM,** - **R/O. NEAR ITI ROAD, NAINVA ROAD, BUNDI PRESENTLY AT BHORWN BIJOLIA POLICE STATION LIMIT BHILWARA DIST, RAJASTAN STATE.** **2. SUJAN LAL, S/O. SHAMBUKLGY MEENA, R/O SALAWARIA, MANDALGARSH-TEHSIL BHILWARA DISTRICT, RAJASTAN STATE.** **3. THE NATIONAL INSURANCE CO.LTD, BHILWARA (DT), RAJASTAN STATE.** **4. (ADDL.) SUGUNAN LAL, S/O. SHAMBU LAL, R/O. SALAWARIA, BHILWARA (DT), RAJASTAN STATE.** **5. NISHA T.BASTIN, W/O. JOY, PREMALAYILHOUSE, KOTTAMURI P.O., ATHIRAMPUZHA KOTTAYAM DISTRICT.** **6. JIJO SEBASTIAN, ALAPPANTHTTEL HOUSE, KOODALLOOR P.O., KOTTAYAM DISTRICT.** **7. JINCY BASTIN, W/O. SHINTO IMMANUEL, NEDUMTHAKIDIYIL HOUSE, KANJIRAMATTOM P.O., PALA KOTTAYAM DISTRICT.** **R3 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **dlk** **'C.R.'** ## **P.R.RAMACHANDRA MENON & ANIL K. NARENDRAN,JJ.** **--------------------------------------M.A.C.A. No. 1112 of 2006 ----------------------------------------** Dated this the 29[th] day of February, 2016 ## **JUDGMENT** ## P.R.Ramachandra Menon, J Inadequacy of the compensation awarded by the Tribunal in respect of the death of the husband of the appellant herein is the subject matter of challenge in this appeal, preferred for enhancement of the compensation. 2. The accident was on 13.6.2006. The husband of the appellant was travelling as a passenger in a jeep bearing registration No.RJ-20-P/2743 and when the vehicle reached the place of occurrence, a truck bearing registration No.RSH-3387 driven, owned and insured by respondents 1 to 3 before the Tribunal dashed against the jeep causing fatal injuries, leading to the death of husband of the appellant and causing injuries to others. The loss caused in this regard was sought to be compensated by filing a claim petition before the Tribunal by the appellant joining hands with the daughters and son, who in turn have been transposed as respondents in this appeal (for the reason that they 2 ## **M.A.C.A. No. 1112 of 2006** were not readily available in station, as put forth by the learned counsel for the appellant). It is also stated that there is no conflict of interest between the appellant and the other claimants. 3. The evidence adduced before the Tribunal consist of Exts.A1 to A17 produced and marked from the part of the claimants. The respondents chose to produce Exts.B1(a) to B1(g) and Ext.B2. No oral evidence was adduced by both sides. Based on the materials on record, the Tribunal arrived at a finding that the accident was solely on the negligence on the part of the driver of the truck and proceeded to fix the compensation accordingly. 4. Coming to the quantum of compensation payable, the specific case put forth before the Tribunal was that the deceased was having a permanent employment in the Kanakkary Cooperative Bank Ltd., Kheroli, in Kottayam District and was drawing a monthly income of Rs.8,802/-. This was sought to be substantiated by producing a salary certificate issued by the employer bank, which was marked as Ext.A12. The claim was contested by the respondent insurance company alone and the owner and driver of the vehicle were declared ex-parte. The insurer contended that, the 'take home pay' of the deceased was on a much lower level as disclosed from the acquittance roll issued from the bank, which was produced **M.A.C.A. No. 1112 of 2006** 3 before the Tribunal. The Tribunal simply ignored the salary certificate stating that the same was not properly proved, however, choosing to place reliance on the acquittance roll, reckoned only Rs.3739/- as the 'take home pay' after deduction of Rs.5608/-, that too, after deducting 1/3 towards the personal expenses. It was accordingly that the annual dependency was worked out as Rs.44,868/-. Based on the age of the deceased as 48 years, the appropriate multiplier was fixed as '13', and thus the loss of dependency worked out as Rs.5,83,184/-. Adding amounts under different heads, the total compensation payable was fixed as Rs.6,63,409/- which was directed to be satisfied with interest at the rate of 7.5% from 5.5.2011, the date of petition, till the realisation, plus cost. This is sought to be enhanced at the instance of the appellant herein. 5. Heard Sri. Amal Darsan, the learned counsel appearing for the appellant as well as the learned counsel appearing for the insurance company. 6. The basic question to be considered is whether the Tribunal was justified in deducting a sum of Rs. 5608/- from the total salary certified in Ext.A12 salary certificate, placing reliance on **M.A.C.A. No. 1112 of 2006** 4 acquittance roll. A copy of the certificate is placed for perusal of this Court by the learned counsel. On going through the same, it is seen that the deceased was drawing a basic pay of Rs.6,425/, D.A of Rs.2056/- and H R A of Rs.321/-, thus coming to a total of Rs.8,802/-, by virtue of the employment as a senior clerk in the Bank, as on 31.5.2000, in the scale of pay of 3535-6600. It is true that, nobody was examined by the claimants (from the part of the employer) in support of the said certificate. But there is no dispute with regard to the factum of employment as a senior clerk in the Kanakkary Co-operative Bank Ltd., and the respondent insurance company had also sought to rely on the 'acquittance roll' issued by the very same Bank (the employer).Then, the question is whether the deductions were justified and the balance amount shown in the acquittance roll alone could be taken as the monthly income or whether the entire salary is to be reckoned of course, subject to deduction of income tax, if any. 7. It has to be borne in mind that the employer concerned was a co-operative society, functioning in terms of the relevant provisions of the Acts and Rules (Kerala Co-operative Societies Acts & Rules). By virtue of the scheme of the statute, there **M.A.C.A. No. 1112 of 2006** 5 is strict monitoring over the society by the Departmental Authorities and the contents of the certificates issued by the employer Society/Bank can never go wrong, particularly since supported by the acquittance roll, by virtue of periodical inspection, audit and such other check measures. There is no dispute for the respondent insurance company as to the maintenance of records by the employer society, who in fact has produced the acquittance roll and sought to rely on the same. The question is whether the deduction is correct or sustainable. 8. An employee who is serving under an employer as in the instant case, may be having so many personal needs. He might have availed housing loan, vehicle loan, personal loans etc., from the employer and may be effecting timely remittance by way of monthly installments. That apart, there may be deductions towards contribution to Provident Fund, Pension fund etc., and all these deductions clearly reflect the amounts spent by such employee from his pay packet containing the gross salary. In otherwords, these amounts, by way of deductions made are part of his hard earned money and as such, it could not have been deducted to work out the monthly income. The same should have been reckoned by the Tribunal for working out the monthly income and for appropriate **M.A.C.A. No. 1112 of 2006** 6 multiplicand. In the said circumstance, we deprecate the course followed by the Tribunal and hold that the entire monthly salary of Rs.8,802/-, as certified in Ext.A12 should have been accepted by the Tribunal without effecting any deduction as no deduction is shown against the income tax. 9. The learned counsel for the appellant sought to place reliance on the verdict passed by the Supreme Court in Sarala ## Verma and others v. Delhi Transport Corporation and another [2010 (2) KLT 802], where it has been held that, in the case of permanently employed persons, future prospects have to be considered by adding 50% of salary in respect of persons up to 40 years and that in the case of persons between 40-50 years, it should be 30%. The deceased in the instant case had crossed 48 years and as such, by virtue of his permanent employment in Kanakkary Co-operative Bank Ltd., he is entitled to have an enhanced monthly income of 30% (following the dictum passed by the Supreme Court), when it comes to Rs.11422.60 [8802+ (8802x30/100)], rounded as Rs.11,443/-. It is fixed accordingly. The appropriate multiplier in the case of the deceased is '13' going by Sarala Verma's case. But then, the said amount cannot be **M.A.C.A. No. 1112 of 2006** 7 aspired after the retirement age of '58' which is applicable in the cooperative sector. As such, the multiplier till that date (having crossed the age of 48 years on the date of accident) will be '10' and thereafter it will be '3' with a notional income of Rs.5000/-per month. It is also a matter of consideration as put forth by the learned counsel for the appellant, that the family of the deceased consists of 4 members as legal representatives including the widow and three children. This being the position, going by the decision of the Supreme Court in Sarala Verma's case (supra) the deduction for personal expenses should have been only '¼' and not 1/3. We find it appropriate to pursue such a course and in the said circumstances, on re-working the compensation on the above factual aspects it comes to Rs. 11,64,870/- i.e., (11433x12x3/4x10=10,29,870/+5000x12x3/4x3=1,35,000/-). After giving credit to the sum of Rs. 5,83,184/- awarded by the Tribunal, the balance towards loss of dependency comes to Rs.5,81,686/-. It is awarded accordingly. 10. The learned counsel for the appellant places reliance on the decision rendered by the Apex Court in **Rajesh v. Rajbir Singh [2013(3) KLT 89],** where it has been held that loss **M.A.C.A. No. 1112 of 2006** 8 of consortium, loss of love & affection and funeral expenses should be awarded at the rate of Rs.1,00,000/-, Rs.1,00,000/- and Rs.25,000/- respectively. We are aware of the said decision but the accident in the said case was of the year 2007, whereas in the instant case, it was in the year 2000. Considering the economic conditions prevailing on the date of accident, this Court finds that the claimants are entitled to some enhancement, though not completely to the extent as mentioned in **Rajesh'** s case. The scope of the said decision has been considered by another Division Bench of this Court in **Valsamma v. Binu Jose [** 2014(1)KLT 10], and it has been held that the amounts payable have to be worked out also with reference to the age of the deceased and age of the spouse/claimants. We find that a sum of Rs. 20,000/- has been awarded towards the loss consortium. Considering the age of the deceased, the age of the first claimant/ the first appellant herein and the economic conditions prevailing at the time of accident, we find it appropriate to grant a further sum of Rs.30,000/-, thus fixing the compensation for loss of consortium at Rs.50,000/-. Similarly, in respect of the loss for love and affection, only a sum of Rs.15,000/- has been awarded by the Tribunal in respect of three **M.A.C.A. No. 1112 of 2006** 9 children. We find it appropriate to re-fix the amount payable under this head as Rs.50,000/- and grant a further sum of Rs.35,000/-, on this count. Towards funeral expenses, as mentioned already, only a sum of Rs.3,000/- has been awarded. Considering the date of accident, we enhance the same by Rs.7000/- more. Thus, the total balance compensation payable comes to Rs.6,53,686/- (rupees six lakhs fifty three thousand six hundred and eighty six only) which is required to be satisfied with interest at the rate of 9% p.a. from he date of petition, till the satisfaction. The policy stands admitted. In the said circumstances, we direct the respondent insurance company to satisfy the due amount with interest as aforesaid at the earliest, at any rate, within one month from the date of receipt of a copy of the judgment. The appeal stands allowed. No costs. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- ## **ANIL K. NARENDRAN,JUDGE** **dlk**