Thulasibaiamma, Sruthi V. Nair, Akash V. Nair and Lakshmikuttiamma v. Riyaz Nazeer and The Branch Manager, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935** ## **MACA.No. 690 of 2007 ( )** **------------------------OP(MV)NO. 936/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,PUNALUR -----------------------------------------------** ## **APPELLANTS/PETITIONERS:** **---------------------------------------------** ## **1. THULASIBAIAMMA,** - **W/O.LATE VIJAYAKRISHNAN NAIR, KANIYARAZHIKATHU VEEDU, EDAMULACKAL, ANCHAL P.O., KOLLAM DISTRICT.** ## **2. MINOR- SRUTHI V. NAIR,** - **S/O. LATE VIJAYAKRISHNAN NAIR, KANIYARAZHIKATHU VEEDU, EDAMULACKAL, ANCHAL P.O., KOLLAM DISTRICT.** ## **3. MINOR- AKASH V. NAIR,** - **S/O LATE VIJAYAKRISHNAN NAIR, KANIYARAZHIKATHU VEEDU, EDAMULACKAL, ANCHAL P.O., KOLLAM DISTRICT.** ## **4. LAKSHMIKUTTIAMMA,** - **W/O.LATE GOPALAN NAIR, KANIYARAZHIKATHU VEEDU, EDAMULACKAL, ANCHAL. P.O., KOLLAM DISTRICT.** **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** **1. RIYAZ NAZEER, S/O NAZEER, KALEEKKAL HOUSE, MUTHOOR P.O., THIRUVALLA.** ## **2. THE BRANCH MANAGER,** - **M/S. NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, PATHANAMTHITTA.** **R1 BY ADV. SRI.SHAJIN S.HAMEED** **SRI.BIJU VARGHESE ABRAHAM** **R2 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------- M.A.C.A.No.690 of 2007 -----------------------------------------------------------------Dated this the 21[st] day of August, 2013 J U D G M E N T ## K. Ramakrishnan, J. The wife, children and widowed mother of deceased Vijayakrishnan Nair, who are the appellants herein have filed O.P.(M.V).No.946/2001, before the Motor Accidents Claims Tribunal, Punalur, claiming compensation for the death of their breadwinner, who died in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. After considering the evidence on record, the tribunal found that, the accident occurred due to the rash and negligent driving of a vehicle by the first respondent and awarded a total compensation of 11,04,000/- on₹ various heads as follows: |**Sl.**<br>**No.**|**Head of claim**|**Amount awarded**<br>**_₹_**| |---|---|---| |1|Loss of dependency|1059000| |2|Transportation expenses|2000| |3|Funeral expenses|3000| |4|Pain and suffering|10000| |5|Loss of consortium|10000| |6|Loss of love and affection|20000| ||Total|1104000| M.A.C.A.No.690 of 2007 2 Dissatisfied with the quantum of compensation awarded, the appellants have come before this court with the above appeal. 2. We have heard the learned counsel for the appellants and counsel for the insurance company. 3. Counsel for the appellants submitted that the deceased was working as Senior Accounts Officer in BSNL at the time of his death and he was drawing a salary of 13,375/- at that time and subsequently the pay₹ revision has come up in the department, which was given retrospective effect from 2000 onwards and thereby he will be getting a monthly income of 22,774/- at that₹ time. In order to prove this fact PWs 2 and 3 were examined and Exts.A16 to A17 was also produced to prove this fact. PW2 and 3 were the Accountants Officer in the BSNL at the relevant time. But in spite of all these evidences, the tribunal has taken only the basic salary of ₹ 8,825/- and taking multiplier of 15 and awarded only ₹10,59,000/-, as compensation under the head loss of dependency, which is very less. The amount awarded M.A.C.A.No.690 of 2007 3 under other heads is also palpably low. Further, future prospects have not been taken into consideration by the tribunal. So, according to the counsel for the appellants, the appellants are entitled to get enhanced compensation on all other heads. 4. On the other hand, the counsel for the insurance company submitted that for the purpose of assessing loss of dependency, the actual salary as on the date of death alone has to be taken into consideration. At the time of death, he was drawing only 13,375/- and the₹ tribunal was justified in not taking into consideration the subsequent revision made in the department, which was given retrospective effect from 01.08.2000. So, according to him, the total compensation awarded is just and proper. 5. We have considered the rival contentions of both parties. 6. It is an admitted fact that the deceased Vijayakrishnan Nair was working as Senior Accounts Officer in BSNL at the time of his death and admittedly as M.A.C.A.No.690 of 2007 4 per Ext.A14, his salary was 13,375/- at that time. Earlier₹ this was under the Telecommunication Department and subsequently, it was converted to BSNL, a Government owned company. Thereafter, the pay structure was revised, giving retrospective effect from 01.08.2000. In **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , it has been specifically held that what has to be taken as the income of the deceased, is the actual income drawn by him at the time of his death. It is observed in the subsequent decision reported in **2013(3) KLT 89 Rajesh v. Rajbir Singh (SC),** the future prospects in the case of age group between 40 and 50 will be 30%, even in the case of persons having non stable income. So, according to the counsel for the appellants at least 30% increase will have to be taken. But in this case, if the principle laid down in Sarla Verma's case (supra) is applied, what would have been taken is the actual salary as on the date of death. But, considering the fact that the salary revision was made in the department giving retrospective effect, we feel that the M.A.C.A.No.690 of 2007 5 revised salary can be taken for the purpose of assessing the monthly income of the deceased, so that, that will taken in the future prospects that ought to have been considered for fixing the monthly salary of the deceased at the time of his death. This ought to have been done by the tribunal and that was not done. So, going by the evidence of PWs 2 and 3, the deceased will be getting a monthly salary of 22,774/-, in the same cadre in which₹ he was as per the revised scale at the time of his death and that can be taken as his monthly income for the purpose of assessing the loss of dependency of the claimants and we adopt the same for this purpose. 7. As per Sarla Vermas case(supra), for the age group of 40 to 45, the multiplier to be taken is 14 and not 15 as taken by the tribunal. Further, when the dependants are more than 3, then the deduction ought to be 1/4[th] for the personal expenses of the deceased and not 1/3[rd] as done by the tribunal. Further in the case of a Government employee, the income tax at the rate of 20% will have to be deducted at source and the balance alone M.A.C.A.No.690 of 2007 6 will be taken as the income of the deceased for the purpose of assessing loss of dependency. On the basis of these inputs if re-calculation is made, the appellants would be entitled to get an amount of ₹ 22,95,698/-(Rs.22,774 x 12 x 14 x ¾ x 80%) instead of ₹10,59,000/- awarded by the tribunal. So, the appellants are entitled to get an additional amount of 12,36,619/-₹ under the head loss of dependency. Considering the fact that the case is of the year 2001, the amount awarded under other heads are reasonable and just. We are not inclined to enhance the amounts awarded under other heads. So in all, the appellants will be entitled to get an additional compensation of 10,59,000/-, over and above₹ what has been awarded by the tribunal, which the 2[nd] respondent insurance company is liable to pay with 9% interest from the date of the claim petition, till date of payment. Three months time is granted to the insurance company to pay this amount as well. 8. The tribunal has not apportioned the amount between the claimants, who are the aged mother M.A.C.A.No.690 of 2007 7 wife and two minor children. So, considering this fact, we feel that 3,00,000/- can be given to the 4₹ th claimant and the balance amount can be given equally to claimants 1 to 3, out of which, the amounts payable to claimants 2 and 3 can be deposited in a Nationalised Bank till they attain majority, with liberty to the first claimant to withdraw the monthly interest accrued on the deposit, for the maintenance of the minor children. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge Corrigendum The figure “₹ 22,95,698/-” occurring in line 5 of page 6 of the judgment dated 21.08.2013 is corrected and substituted as “₹ 22,95,619/-” and the figure “₹ 10,59,000/-” occurring in line 13 of page 6 is corrected and substituted as “₹12,36,619/-”, vide order dated 12.09.2013 in I.A.2464/2013 in M.A.C.A. 690/2007. Sd/Registrar (Judicial) ss