IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 477 of 2004()
1. SHAKIELA GEORGE, W/O. THE LATE K. GEORGE
... Petitioner
2. ANJALI RACHEL GEORGE,
Vs
1. K. SATHY, (OWNER OF TELCO LORRY
... Respondent
2. NARAYANAN, (DRIVING LICENCE
3. UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.CHACKO GEORGE (SR.)
For Respondent :SRI.LIJU. M.P
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :18/11/2010
O R D E R
PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ.
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M.A.C.A. NO. 477 & 479 OF 2004
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DATED THIS, THE 18TH DAY OF NOVEMBER , 2010.
COMMON J U D G M E N T
Gopinathan, J.
These appeals are preferred by the petitioners in O.P. (MV) 243 and
244 of 1996 on the file of the Additional Motor Accidents Claims
Tribunal, Ernakulam. The above two original petitions along with another
petition – O.P. (MV) 242 of 1996 were enquired together by the Tribunal
below and by a common award dated 23.7.2003, all those petitions were
disposed of.
2. The brief facts leading to the filing of the original petitions are as
follows: On 24.3.1995, at 8.30 P.M. at Chuvattupadam along the
Trichur-Vadakkancherry road, a lorry bearing Registration No. TNR 5769,
owned, driven and insured by Respondents 1 to 3 respectively, hit against a
car bearing Registration No. TMG 2615 driven by late Viswambaran and as
a result, Viswambaran and two passengers, namely Abraham Philip and
George Plavelil sustained severe injuries to which all the three succumbed.
The appellants in M.A.C.A. 477/2004 are the legal heirs of deceased
George Plavelil. The appellants in the other appeal are the legal heirs of
Abraham Philip. They, in their separate petitions, O.P. 243 of 1996 and
O.P. 244 of 1996 before the Tribunal below, contended that the accident
M.A.C.A. NOS. 477 & 479/2004
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occurred because of the rash and negligent driving of the lorry by the
second respondent and hence all the respondents are liable to compensate
them. In O.P. 243/1996 a sum of Rs. 30,75,000/- was claimed as
compensation. In the other petition, a sum of Rs. 31,71,000/- was claimed
as compensation.
3. Respondents 1 and 2 remained exparte. The third respondent,
though admitted the insurance liability, contended that the accident occurred
because of the negligent driving of the car by late Viswambaran and hence
the third respondent is not liable to compensate the appellants. The third
respondent also contended that the claim made is exorbitant. The Tribunal
enquired all the three petitions jointly and evidence was recorded in O.P.
(MV) 244 of 1996. The first appellant in M.A.C.A. 479/2004 was examined
as PW.1. The first appellant in the other appeal was examined as PW.2.
One of the legal heirs of Viswambaran was examined as PW.3. Exts.A1 to
A16 were also marked. The contesting respondent did not adduce any oral
or documentary evidence. The Tribunal below, on appraisal of the evidence
on record, awarded a sum of Rs. 7,78,500/- in O.P.(MV) 244 of 1996. In
O.P. 243 of 1996, a sum of Rs. 8,98,500/ was awarded. Aggrieved by the
inadequacy of the compensation awarded, these appeals were preferred.
M.A.C.A. NOS. 477 & 479/2004
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4. Sri. H. Ramanan, learned counsel appearing for the appellants
submitted that the compensation awarded by the Tribunal below for loss of
dependency in both the cases is very low and sought for interference and
enhancement. On the same time, the learned counsel conceded that the
compensation awarded by the Tribunal on other heads in both the cases are
just and reasonable.
5. The learned standing counsel appearing for the third respondent
didn’t dispute the liability to compensate. According to the learned counsel,
the compensation awarded in both the cases are just and reasonable.
6. In the light of the submission made by the learned counsel for
appellants, we are examining the adequacy of compensation for loss of
dependency alone. In M.A.C.A. 477 of 2004, it was revealed by the
evidence of PW.2 and by Exts.A12 and A13 that deceased George Plavelil,
on the date of accident was employed as General Manager, M/s. Kerala
Rubber and Reclaims Limited., Ernakulam and was drawing a salary of
Rs.3,200/-, D.A. 600, variable D.D. of Rs. 1,543.80, House Rent Allowance
Rs. 500/- and conveyance allowance of Rs. 600/-. In addition to that, he
was the director of two other companies by name M/s. Nelluparayil
Rubbers and M/s. Ryas Rubber Company at Kalamassery and as director of
the Company as evidenced by Ext.A13, he was drawing a salary of Rs.
M.A.C.A. NOS. 477 & 479/2004
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2,000/-. If Exts. A12 and A13 are taken together, the deceased was having a
monthly salary of Rs. 8,443/- whereas the Tribunal below had calculated
only Rs. 7,000/- and from that a sum of Rs. 2,000/- was deducted towards
personal expenses and Rs. 5,000/- was capitalized for a period of 14 years
and thus, the compensation for loss of dependacy was determined at Rs.
8,40,000/-. According to the learned counsel for the appellant, the Tribunal
below went wrong in limiting the salary of the deceased at Rs. 7,000/- and
that taking into account that the deceased was aged below 40 years, the
income should have been capitalized for a period of 15 years. We find merit
in the submission. Going by Exts.A12 and A13, the admissibility of which
was not disputed, we find that as submitted by the learned counsel for the
appellant, the total monthly salary of the deceased was Rs. 8,443/- of which
Rs. 600/- is towards conveyance allowance. We find that the conveyance
allowance cannot be accounted to determine the loss of dependancy and that
for determining the loss of dependency, we find that a sum of Rs. 7,843/- is
to be taken as the salary of the deceased. In Sarla Varma v. Delhi
Transport Corporation (2010 (2) KLT 802 SC) the Apex Court had held
that the second schedule attached to the amended Motor Vehicles Act is not
correct and to determine the compensation of a person aged between 36 –
40 years, the multiple shall be 15 years. Admittedly, the deceased was
M.A.C.A. NOS. 477 & 479/2004
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below 40 years. Therefore, the monthly loss of dependency is to be
calculated for 15 years. Taking into account of the number of dependency,
we find that one third of the monthly salary of Rs.7,843/- is to be deducted
towards personal expenses and the balance Rs. 5,229/- shall be capitalized
for a period of 15 years to determine the compensation for loss of
dependency. If calculated so, it would come to Rs.9,41,220/- (5,229 x 12 x
15). Therefore, we find that in M.A.C.A. 477/2004, the appellants are
entitled to a further sum of Rs.1,01,220/- towards compensation for loss of
dependency.
7. In M.A.C.A. 479 of 2004 also, the Tribunal had committed
identical error. Deceased Abraham Philip was employed as the Managing
Director of the Kerala Rubber and Reclaims Ltd. As per Ext.A8, the
statement of calculation of remuneration, he had been drawing a sum of Rs.
9,990/- per month. In addition to that, as director of Ryas Rubber Private
Ltd. the deceased was drawing a sum of Rs. 2,000/ and thus, the monthly
salary was stated as Rs. 11,990/-. The monthly salary certified is not
disputed. The learned standing counsel for the third respondent contended
that the income of the deceased would have been subjected to income tax
and no material is produced to show as to what exactly was the net income,
after deducting the tax. The learned counsel for the appellant do concede
M.A.C.A. NOS. 477 & 479/2004
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that the amount certified in Ext.A8 would be subjected to income tax and
regarding the tax payable, no document was produced. Hence we are
constrained to have a guess work to determine the net income.
8. As regards late Abraham Philip, there are four dependents. If the
principle laid down in Sarla Varma’s case (supra) is applied, one fourth of
the salary alone can be deducted towards personal expenses and the rest is
to be capitalized for determining the compensation for dependency. Late
Abraham Philip was aged 46. So, the multiple to be applied as per the
decision of the Apex Court in Sarla Varma’s case (supra) shall be 13.
Instead of that, the Tribunal below has taken a multiple of 12. So also, the
salary of the deceased was roughly determined at Rs. 7,000/-, out of which
Rs. 2,000/ was deducted as personal expenses. We find that a rectification
is to be made regarding the multiplier and multiplicand, but subject to
some guess work regarding the tax payable. If 1/4th of the salary of the
deceased is deducted, the balance amount would come to Rs.7,491/-. In the
absence of any evidence regarding the tax payable, we find that the monthly
loss of dependency can be determined at Rs.7,000/- and when multiplied
for 13 years, it would come to Rs.10,92,000/- (7000x12x13). The
Tribunal had already awarded a sum of Rs.7,20,000/- towards loss of
dependency. Therefore, the appellants are entitled to an enhanced sum of
M.A.C.A. NOS. 477 & 479/2004
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Rs. 3,72,000/-. The appeals are liable to be allowed to that extent.
In the result, both the appeals are allowed in part. In M.A.C.A.
477/2004 the appellants are entitled to a further sum of Rs.1,01,220/-
towards loss of dependency in addition to the amount awarded by the
Tribunal. In M.A.C.A. 479/2004, we find that the appellants are entitled to
a further amount of Rs.3,72,000/- towards loss of dependency. The
appellants in M.A.C.A. 479/2004 are entitled to apportion the
compensation amount in equal moiety. The appellants are also entitled to
future interest at the rate of 7.5% from the date of petition till payment or
deposit before the Tribunal for the enhanced amount.
PIUS C KURIAKOSE,
(JUDGE)
P.S. GOPINATHAN,
(JUDGE)
knc/-