IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 791 of 2003()
1. MRS.PUSHPA RAVEENDRAN
... Petitioner
Vs
1. SRI.RAJINIKANT PRABHUDAS
... Respondent
For Petitioner :SRI.T.K.KOSHY
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :28/10/2010
O R D E R
PIUS C. KURIAKOSE & P.S. GOPINATHAN, JJ.
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M.A.C.A. NO. 791 OF 2003
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DATED THIS, THE 28TH DAY OF OCTOBER, 2010
J U D G M E N T
Gopinathan, J.
The petitioners in O.P. (MV) No. 1707 of 1997 on the file of the
Motor Accidents Claims Tribunal, Ernakulam are the appellants. They are
the widow, two children and parents of deceased Dr. Raveendran. Dr.
Raveendran was working as Quality Control Manager in ATV Projects
India Ltd., Mumbai. At 1.00 a.m. on 31.3.1996, he was travelling in a bus
bearing registration No. GJI V 9951, owned and insured by respondents 1
and 3, from Mumbai to Ahamedabad. When reached at Auranga Bridge at
Valsad in Gujarat State the bus, which was driven by the 2nd respondent,
went off the bridge and fell into the river. As a result, Dr. Raveendran was
slapped a watery grave. Attributing negligence against the second
respondent, who is now removed from party array, the appellants preferred
the above petition before the Tribunal below claiming a sum of Rs. 40
lakhs as compensation.
2. During the enquiry, the Tribunal below recorded the evidence of
the first appellant as PW.1 and Exts. A1 to A6 were marked. The
M.A.C.A. 791/2003 2
negligence attributed against the second respondent was found in favour of
the appellants. Consequently, the respondents were found liable to
compensate the appellants.
3. Relying upon Ext.A4 salary certificate, the Tribunal arrived at a
finding that the deceased was drawing a monthly salary of Rs.12,450/-.
But, the Tribunal reduced a sum of Rs. 6,450/- towards personal
expenditure and Rs. 6,000/- was determined as the loss of monthly
dependency. The deceased was aged 37 years as is evidenced by Ext.A6,
the front page of SSLC Book. Taking note that the first appellant later got
employment, the multiplier was determined at 12. Calculating so, a sum of
Rs. 8,64,000/- was determined as the compensation for loss of dependency.
The Tribunal also awarded the following sums under various heads: (i)
funeral expenses Rs.2,500/-, (ii) hospital expenses rs.2,000/-, (iii)
compensation for pain and suffering Rs. 5,000/-, (iv) compensation for loss
of consortium Rs. 25,000/ and (v) compensation for loss of love and
affection Rs. 25,000/-. In total, a sum of Rs. 9,23,500/- was awarded with
interest at the rate of 9% per annum. Challenging inadequacy of the
compensation awarded, this appeal was filed.
4. The liability of the respondents, especially that of the third
respondent as insurer is not at all challenged. Dispute is only regarding the
M.A.C.A. 791/2003 3
quantum. We heard the learned counsel appearing for the appellants as well
as the standing counsel for the third respondent.
5. It is not disputed that deceased Dr. Raveendran was working as
Quality Control Manager in ATV Projects India Ltd., Mumbai. This is
proved by the testimony of first appellant as PW.1 as well as by Ext.A4
salary certificate. Ext.A4 would show that the deceased was drawing a
basic pay of Rs. 7,000/- and special allowance of Rs. 1,000/-. The
following amounts were also paid to him as reimbursement per month.
Maintenance Rs. 2,000/-, books and periodicals Rs. 1,000/-, conveyance Rs.
1,050/- and education Rs. 400/-. Thus, the total remuneration was certified
at Rs. 12,450/-. It is not disputed that the above amount was subjected to
income-tax. What was the tax payable is not revealed out. The appellants
did not care to produce the tax return. So we are not in a position to
determine the exact net income. However, the learned counsel appearing
for the appellants heavily assailed the deduction of Rs. 6,450/- ie. 52% of
the salary towards personal expenses. The learned counsel also canvassed
our attention to Ext.A5 certificate whereby it is seen that the deceased was a
doctorate holder in technology and submitted that the Tribunal below failed
to take into account the future prospects in determining the compensation.
According to the learned counsel, deceased, being a highly qualified person,
M.A.C.A. 791/2003 4
would have very bright future prospects. Relying upon the decision
reported in Sarla Varma v. Delhi Transport Corporation (2010(2) KLT
802(SC) the learned counsel further submitted that the Tribunal should have
taken into account the future prospects also and that the compensation now
awarded is too low and is without due regard to the ground reality. Having
heard either side, we find some merit in the submission. Taking note that
the deceased was survived by parents, wife and two children, we find that
the Tribunal below went wrong in deducting 52% of the salary for personal
expenses. Regarding the deduction from salary towards personal expenses
of the deceased, the Apex Court had given guidelines in Sarala Varma’s
case (supra). At paragraph 30, it is held as follows:
“Though in some cases the deduction to be
made towards personal and living expenses is
calculated on the basis of units indicated in Trilok
Chandra, the general practice is to apply standardised
deductions. Having considered several subsequent
decisions of this court, we are of the view that where
the deceased was married, the deduction towards
personal and living expenses of the deceased, should
be one-third (1/3rd) where the number of dependent
family members is 2 to 3, one-fourth (1/4th) where the
number of dependant family members is 4 to 6, and
one-fifth (1/5th) where the number of dependant family
members exceeds six.”
6. Here, in this case, there are six dependants. If the above
M.A.C.A. 791/2003 5
guidelines given by the Apex Court is accepted, only 1/5th of the salary is to
be deducted for personal and living expenses of the deceased. But we
notice that the appellants are residing in their native place whereas the
deceased was employed at Mumbai and staying there. The total salary
certified in Ext.A4 in fact includes maintenance expenses, conveyance
expenses and allowance for books and periodicals. It is not disputed that
Mumbai is a very costly city. The deceased was a high ranking officer. In
the above circumstances, he had to spend much amount towards personal
and living expenses at Mumbai. However, taking into account of the
entire circumstances including the number of dependants, we are of the
opinion that at no stretch of imagination more than 1/3rd can be deducted
towards living and personal expenses of the deceased. But, we are not able
to fix a correct figure because before us there is no evidence regarding the
income tax payable. It is not disputed that the deceased would have been
an income tax assessee with the salary certified in Ext.A4. So also,
regarding the profession tax payable, there is no evidence. Since there is
no evidence regarding the taxes payable, we have no other go but to have a
‘rule of thumb’ to determine the monthly loss of dependency.
7 6. The learned counsel for the appellants would further submit
that the deceased was a well qualified engineer and well employed in a well
M.A.C.A. 791/2003 6
run company. He being highly qualified, there was every bright chance for
increment as well as for promotion. According to the learned counsel, in
this regard also, the Apex Court had given guidelines in Sarala Varma’s
case (supra). In that case, referring to the decision in K.S.R.T.C. vs.
Susamma Thomas (1994(1) KLT 67 = 1994 (2) SCC 176), at para 24, it
is held as follows:
“In Susamma Thomas, this Court increased the
income by nearly 100%, in Sarala Dixit, the income
was increased only by 50% and in Abati Bezbaruah
the income was increased by a mere 7%. In view of
imponderables and uncertainties, we are in favour of
adopting as a rule of thumb, an addition of 50% of
actual salary to the actual salary income of the
deceased towards future prospects, where the
deceased had a permanent job and was below 40
years. (Where the annual income is in the taxable
range, the words ‘actual salary’ should be read as
‘actual salary less tax’). The addition should be only
30% if the age of the deceased was 40 to 50 years.
There should be no addition, where the age of
deceased is more than 50years. Though the evidence
may indicate a different percentage of increase, it is
necessary to standardise the addition to avoid
different yardsticks being applied or different
methods of calculations being adopted. Where the
deceased was self-employed or was on a fixed salary
(without provision for annual increments etc.), the
courts will usually take only the actual income at the
time of death. A departure therefrom should be made
only in rare and exceptional cases involving special
circumstances.”
8. Admittedly, regarding the increment payable to the deceased or
M.A.C.A. 791/2003 7
the chance for future prospects, there is absolutely no evidence. It is true
that the deceased was a doctorate holder in technology. If he is competent,
there is every chance for having better prospects in employment especially
because at the time of the accident, the deceased was aged only 37 years.
Regarding the competency, we find nothing to doubt. Taking into account
of the high qualification of the deceased, we cannot rule out chances for
better placement or promotion and periodical increment or revision in
salary. But in the absence of reliable evidence regarding the increment or
the chance for better prospects, we have to have some guess work.
9. The Tribunal below adopted the multiplier of 12 for the reason
that the first appellant had got an employment subsequent to the accident.
In para 11 of the impugned award, it is mentioned that the first applicant
had obtained a job in the company where her husband was working, as a
trainee. This finding of the Tribunal below is very heavily assailed by the
learned counsel appearing for the appellant. The learned counsel had taken
us through the evidence of PW.1. In the evidence, it is stated that the first
appellant had, as on the date of examination, been working as a trainee in
AVT Company. According to the learned counsel, the company in which
the deceased was working is ATV Product Ltd. and it is a separate entity.
Going by the evidence of PW.1 and Ext.A4, we find that the submission
M.A.C.A. 791/2003 8
made by the learned counsel for the appellant is absolutely correct. The
first appellant got employment in another company. Even if it is assumed
that the first appellant had got an employment under compassionate ground
in the same company in which her husband was working, that is not at all a
reason to reduce the multiplier. We notice that the accident was in 1996.
The award of the Tribunal below is in 2003. This appeal is coming up for
hearing in 2010. For one reason or other, proceeding for determining
compensation is being dragged. There was nobody to bother about the
appellants who were depending upon the income of the deceased for their
livelihood. The dependants of the deceased were constrained to search for
means for livelihood in their own way. Unless they find out some job
they have to be in poverty. In the above circumstances, if some of the legal
heirs went in search of some job and obtained a job, that shall not be a
reason to reduce the compensation. Unless the first appellant had gone for
some employment she could not have survived with her children. Rather
than taking alms or living at the mercy of the relatives, if the first appellant
sought for an employment, that may not be a reason to reduce the multiplier.
An identical issue had come up for consideration before this Court in
Geetha Kumari v. Rubber Board, (1994(1) KLT 674). At Para 19, it was
held as follows:
M.A.C.A. 791/2003 9
“Accordingly we hold that no portion of the pension,
insurance money, gratuity, provident fund or any
gratuitous payment received by the legal
representatives of a deceased employee can be
deducted from the amount of compensation payable
to them under the M.V. Act. So also the salary or any
part thereof which may be payable to the widow from
the employment given to her on compassionate
grounds on account of her husband’s death cannot be
deducted from the compensation payable to her under
the M.V. Act. No part of the income that the widow
or other legal representatives may be getting from any
business or profession, whether it is a continuation of
the business of the deceased or a new business started
by them can be deducted from such compensation.”
10. We find no reason to take a different view. We further find that
the Tribunal below was not justified in reducing the multiplier. Having
due regard to the age of the deceased, we find that the correct multiplier to
be applied is 15 and not 12.
11. Taking into account of the entire facts and circumstances, the
salary that the deceased was drawing as on the date of accident and that it
was subjected to taxes and the future prospects of getting better placement
or increment in the salary though not mentioned in Ext.A4, we find that to
determine the compensation for loss of dependency, after deducting the
personal expenses, the monthly loss of dependency can be determined at
Rs. 9,000/-. Taking into account of the age of the deceased, it is to be
multiplied for 15 years. If calculated so, the compensation for loss of
M.A.C.A. 791/2003 10
dependency would come to Rs. 16,20,000/- instead of Rs. 8,64,000/-.
Going by the compensation awarded on other counts, we find that no
interference is required, because the compensation awarded on those heads
are just and reasonable. To summarize, we find that the appellants are
entitled to a further sum of Rs. 7,56,000/- towards enhanced compensation.
The appeal would stand allowed to that extent.
In the result, the appeal is allowed in part and the compensation
awarded by the Tribunal below at Rs. 9,23,500/- would stand enhanced to
Rs. 16,79,500/-. Therefore, appellants are entitled to a further sum of Rs.
7,56,000/- (seven lakhs fifty six thousand only). The appellants are also
entitled to interest at the rate of 7.50 % per annum on the enhanced amount
from the date of petition till realisation. There will be no order as to costs.
PIUS C. KURIAKOSE ,
(JUDGE)
P.S. GOPINATHAN,
JUDGE.
knc/-