High Court Kerala High Court

Shakiela George vs K. Sathy on 18 November, 2010

Kerala High Court
Shakiela George vs K. Sathy on 18 November, 2010
       

  

  

 
 
  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.

= = = = = = = = = = = = = = = = = = = = = = = =
M.A.C.A. NO. 477 & 479 OF 2004
= = = = = = = = = = = = = = = =
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/-