United India Insurance Company Limited v. ShyLaja Menon and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940** **MACA.No. 2075 of 2013** **--------------------IN OPMV 875/2005 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 09-05-2013 ---------------------** ## **APPELLANT(S)** **UNITED INDIA INSURANCE COMPANY LIMITED BANGALORE NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT(S):** **1. SHYLAJA MENON W/O.LATE N.K.MENON, UNNIYAMPURATH HOUSE, PERUMBILLISSERY WEST, NEAR THANIMA OIL MILLS, CHEPU P.O., THRISSUR DISTRICT, PIN 680320.** **2. JAYAKRISHNAN (MINOR) S/O.LATE N.K.MENON, UNNIYAMPURATH HOUSE, PERUMBILLISSERY WEST, NEAR THANIMA OIL MILLS, CHERPU P.O., THRISSUR DISTRICT, REPRESENTED BY HIS MOTHER 1ST RESPONDENT, PIN 686320.** **3. USHA MENON W/O.N.MADHAVA MENON, 402 FANTACY RESIDENCIES, KUNDUMUL, RANGE RAO ROAD, KARANGALPADY, BANGALORE. 560 004. R1 -R 3 BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.N.U.HARIKRISHNA SRI.N.K.UNNIKRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DXY** ## **K.HARILAL, J. ----------------------------------M.A.C.A.No. 2075 of 2013 -----------------------------------------------Dated this the 20[th] day of June, 2018** ## **J U D G M E N T** The United India Insurance Company Limited, the third respondent in O.P(MV).No. 875 of 2005, has filed this appeal challenging the quantum of compensation granted to the respondent herein for the death of deceased N.K.Menon. The respondents are the legal representatives of the deceased N.K.Menon who died in a motor traffic accident. The parties are referred to as in the original petition. 2. According to the petitioners, on 24.07.2004 at about 4 pm, while Sri. N.K.Menon was driving his car, the offending tempo traveler driven by the second respondent, owned by the first respondent and insured with the third respondent, came in a rash and negligent manner and hit against the car. Due to the impact of the hit the said N.K.Menon, sustained fatal injuries and later succumbed to his injuries. According to the petitioners the accident was caused by rash and negligent driving of the **M.A.C.A.No. 2075 of 2013** ..2.. offending tempo traveler by the second respondent and thereby the first and second respondents are liable to pay compensation to them for loss caused by the death of the said N.K.Menon. The petitioners claimed Rs. 60 lakhs as compensation for the death of Sri. N.K.Menon. 3 . The respondents opposed the said application disputing the quantum of compensation claimed under various heads of claim and the cause of accident but admitted the coverage of the insurance policy issued by them to the first respondent. After considering the evidence on record, the tribunal passed the impugned award granting Rs. 58, 95, 000/as compensation to the petitioners. The legality of the determination of monthly income on the basis of presumptive salary and correctness of the quantum of compensation are challenged by the insurance company on various grounds. 4. I have heard the learned Standing Counsel for the Insurance Company, and the counsel appearing for the respondent. **M.A.C.A.No. 2075 of 2013** ..3.. 5. The learned Standing Counsel for the appellant Insurance Company contended that the tribunal went wrong by accepting Ext.A8 salary certificate which pertains to the expected salary particulars of the deceased as on 02.01.2012. The accident has occurred on 24.07.2004. The tribunal granted compensation for loss of dependency taking expected salary after 8 years from the date of accident. The learned Standing Counsel further submits that the tribunal ought not have accepted Ext.A8 salary certificate, which would show his salary in the year 2012, had he been alive. Thus, the tribunal is not justified in taking his monthly salary as Rs. 45,000/- on the basis of Ext.A8 salary certificate. It is also contended that the tribunal wrongly calculated the total compensation and the correct amount as per the quantum of compensation granted under various heads of claim is only Rs. 58, 55, 000/-, but the tribunal went wrong by granting Rs. 58, 95, 000/-. 6. The learned counsel for the respondent advanced arguments to justify the determination of monthly income of the **M.A.C.A.No. 2075 of 2013** ..4.. deceased, on the basis of Ext.A8 presumptive salary certificate. According to him, in view of the preposition laid down by the Apex Court in _**Sarla Verma & Ors. v. Delhi Transport Corp. & Anr.**_ [(2009) 6 SCC 121], there is no illegality in granting compensation, on the basis of presumptive salary at the time of passing the award. Further, it is contended that the amount granted under the heads 'loss of estate' and 'loss of consortium' are inadequate, in view of the proposition laid down by the Supreme Court in _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350 (SC)]. 7. In view of the arguments at the Bar, the point to be considered is, whether the Tribunal is justified in fixing the monthly income of the deceased, on the basis of a presumptive salary on the date of the award? In the instant case, the accident has occurred on 24.07.2004 and the deceased M.K. Menon succumbed to his injuries on the same day itself and the impugned award was passed on 09.05.2013. Going by the **M.A.C.A.No. 2075 of 2013** ..5.. impugned award, it could be seen that the Tribunal has granted compensation for 'loss of dependency' on the basis of Ext.A8 salary certificate and the salary certificate is dated 2[nd] January, 2012. The said certificate states that if the late Mr. Menon continued his service, he would have received minimum presumptive package of Rs.56,907/- per month. The said salary includes HRA, conveyance, special allowance, provident fund, gratuity, incentive etc. However, after excluding the aforesaid items, the Tribunal rightly arrived at a finding that the actual salary, which he would have received at the time of accident is Rs.40,000/- only. After arriving at such a finding, the Tribunal turned round and fixed the monthly income of the deceased as Rs.45,000/- as on the date of award. The enhancement of Rs.45,000/- from Rs.40,000/-, is not supported by any reasoning. 8. But, the question to be considered is, can Rs.40,000/be taken as monthly income of the petitioner, when at the time of accident, he was getting Rs.25,420/- only as monthly salary? **M.A.C.A.No. 2075 of 2013** ..6.. In _**Sarla Verma'**_ s case(supra), the Supreme Court has formulated a common yardstick for determining the compensation considering future prospectus of the deceased and according to that yardstick, in the case of a deceased aged below 40 years, 50% of the income also can be added to the salary at the time of accident, considering his 'future prospects'. Therefore, the Tribunal ought to have adapted the said yardstick only in the instant case. This Court is of the opinion that in view of the preposition laid down in _**Sarla Verma**_ 's case(supra), the Tribunal is not justified in taking a different yardstick on the basis of presumptive salary certificate issued by the employer, which would show probable salary on the date of order had he been alive. 9. In the above view this Court takes Rs.23,420/- as his basic salary and Rs.11,710/- would be added considering future prospective of the deceased. The monthly income of the deceased would stand reduced to Rs.35,130/- from Rs.45,000/[23,420 + 11,710]. Considering the living expenses, had he been **M.A.C.A.No. 2075 of 2013** ..7.. alive,[1] /3 of the said amount also would be deducted. Consequently, the petitioner is given Rs.44,96,640/-[35,130 x 12 x 16 x[2] /3 ] as compensation for 'loss of dependency'. 10. Going by the award, it could be seen that no amount has been granted under the head 'loss of consortium'. In view of the decision reported in _**Pranay Sethi'**_ s case(supra), the Tribunal is not justified in rejecting the claim for compensation under the head 'loss of consortium'. Consequently, the petitioner is given Rs.40,000/- towards 'loss of consortium'. 11. Similarly, the Tribunal has granted Rs.5,000/- only for 'funeral expenses' and the same will stand enhanced to Rs.15,000/-. The petitioner is given a total compensation of Rs.46,41,640/-[15,000 + 10,000 + 10,000 + 44,96,640 + 5,000 + 30,000 + 35,000 + 40,000]. It is needless to say, the total compensation would carry interest, as stipulated by the Tribunal and the remaining portion of the impugned award would stand undisturbed and operative. The Insurance Company is directed to deposit entire compensation with interest within a period of **M.A.C.A.No. 2075 of 2013** ..8.. three months from today. After remitting the court fee, the remaining amount shall be divided and deposited in the same proportion as stipulated by the Tribunal in the impugned award. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K.HARILAL, JUDGE** \\True Copy\\ PA to Judge Dxy