High Court Kerala High Court

Devi Amma vs Savitha Vijayan on 25 June, 2008

Kerala High Court
Devi Amma vs Savitha Vijayan on 25 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 806 of 2002(B)


1. DEVI AMMA, W/O. SUKUMARAN
                      ...  Petitioner
2. SMITHA K.S. D/O. SUKUMARAN, RESIDING
3. HAREESH K.S., S/O. SUKUMARAN,
4. MANJUSHA, D/O. SUKUMARAN, (MINOR)
5. NARAYANI AMMA, W/O. PADMANABHAN NAIR,
6. PADMANABHAN NAIR, S/O. KRISHNAN NAIR,

                        Vs



1. SAVITHA VIJAYAN, W/O. K.P. VIJAYAN,
                       ...       Respondent

2. SAJEEVAN, S/O. VASU ALIAS BHASKARAN,

3. THE UNITED INDIA INSURANCE COMPANY LTD.,

                For Petitioner  :SRI.C.VALSALAN

                For Respondent  :SMT.K.C.BEENA

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :25/06/2008

 O R D E R

J.B. Koshy & P.N.Ravindran, JJ.

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M.F.A. No. 806 of 2002

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Dated this the 26th day of June, 2008

Judgment

Koshy,J.

A 52 year old man sustained fatal injuries in an accident

on 26.9.2007. His legal representatives including his wife, three

children and parents filed application for compensation claiming an

amount of Rupees Ten lakhs. The tribunal found that the accident

occurred due to the negligence of the driver of the vehicle insured

by the third respondent insurance company. The first respondent

driver of the above vehicle was found to be negligent. The second

respondent owner of the vehicle was vicariously liable and third

respondent being the insurer was liable to indemnify the insured.

Hence, third respondent was directed to deposit the amount of

Rs.4,31,724/-. The only dispute raised in this appeal is the quantum

of compensation.

2. The deceased was aged 52. Therefore, taking

guidance from the second schedule, apt multiplier is 11. The

tribunal has taken 11 as the multiplier. We see no ground to

interfere in the same. The salary certificate shows that his monthly

M.F.A.No.806/2002 2

salary was Rs.8,818/-. He was employed as an Overseer in the

Kerala State Electricity Board. The tribunal considered the

deductions from the salary, namely, the amount to be paid to co-

operative society for items purchased and house building loan etc.

They are all for the benefit of the family. But, the tribunal took

Rs.4,500/- as the monthly income and one-third was deducted for

calculating compensation. We are of the opinion that the above

calculation is totally incorrect. His monthly salary was Rs.8,818/-.

After deducting tax and allowances payable with regard to the duty,

his monthly income was Rs.8,100/-. Deducting one-third, the

monthly multiplicand should be Rs.5,400/-. Claimant has got a case

that he had three more years of service. There is likelihood of

promotion, yearly increment, benefit of wage revision etc., but, at

the same time, he will have to retire at the age 55 and he will not

get full wages thereafter. But, according to the claimants, they will

be entitled to retiral benefits like gratuity etc. considering the full

length of service and last drawn salary. That itself will be a huge

sum. It is also contended that being a technical employee, an

Overseer employed in the Electricity Board, will be able to get a

better employment after retirement also. Vagaries of life cannot be

predicted. We have also seen that after deducting one-third for

M.F.A.No.806/2002 3

personal expenses from the salary received, balance amount will be

Rs.5,400/=. It is true that in the usual course, taking increments

and hike in salary etc. he would have got a higher amount as last

drawn salary at the time of retirement. His gratuity and other retiral

benefits also will be calculated on the basis of the length of service

and last drawn salary and he may get a job also after retirement. At

the same time, he will have to retire after three years and he will

not get salary from the Electricity Board. Taking all these things

into account, we take only Rs.4,000/- as the multiplicand instead of

Rs.5,400/-. If that be so, compensation payable will be Rs.4000 x 12

x 11 = Rs.5,28,000/-.

The tribunal has granted only Rs.4,00,224/- for loss of dependency.

Therefore, claimants are entitled to an additional amount of

Rs.1,27,776/-.

3. During the course of appeal proceedings, fifth

appellant mother died and her legal representatives were

impleaded.

4. The additional amount of Rs.1,27,776/- should be

deposited by the third respondent insurance company with 7%

interest from the date of application till its deposit over and above

the decreed amount by the tribunal. On deposit of the amount,

M.F.A.No.806/2002 4

sixth appellant father of the deceased is allowed to withdraw

Rs.20,000/- and out of the balance one-third is allowed to be

withdrawn by the wife and the balance should be allowed to be

withdrawn by the 2nd, 3rd and 4th appellants in equal proportion.

Appeal allowed partly.

J.B.Koshy
Judge

P.N.Ravindran
Judge

vaa

M.F.A.No.806/2002 5

J.B. KOSHY
AND
P.N.RAVINDRAN,JJ.

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M.F.A. No. 806 of 2002

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Judgment

Dated:26th June, 2008