{"id":150244,"date":"2010-10-28T00:00:00","date_gmt":"2010-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-pushpa-raveendran-vs-sri-rajinikant-prabhudas-on-28-october-2010"},"modified":"2016-07-03T00:21:35","modified_gmt":"2016-07-02T18:51:35","slug":"mrs-pushpa-raveendran-vs-sri-rajinikant-prabhudas-on-28-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-pushpa-raveendran-vs-sri-rajinikant-prabhudas-on-28-october-2010","title":{"rendered":"Mrs.Pushpa Raveendran vs Sri.Rajinikant Prabhudas on 28 October, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mrs.Pushpa Raveendran vs Sri.Rajinikant Prabhudas on 28 October, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMACA.No. 791 of 2003()\n\n\n\n1. MRS.PUSHPA RAVEENDRAN\n                      ...  Petitioner\n\n                        Vs\n\n1. SRI.RAJINIKANT PRABHUDAS\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.K.KOSHY\n\n                For Respondent  :SRI.P.V.JYOTHI PRASAD\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MR. Justice P.S.GOPINATHAN\n\n Dated :28\/10\/2010\n\n O R D E R\n            PIUS C. KURIAKOSE & P.S. GOPINATHAN, JJ.\n            = = = = = = = = = = = = = = = = = = == = = = = =\n                       M.A.C.A. NO. 791 OF 2003\n                      = = = = = = = = = == = = =\n\n           DATED THIS, THE 28TH DAY OF OCTOBER, 2010\n\n                              J U D G M E N T\n<\/pre>\n
Gopinathan, J.\n<\/p>\n<\/p>\n
      The petitioners in O.P. (MV) No. 1707 of 1997 on the file of the<\/p>\n
Motor Accidents Claims Tribunal, Ernakulam are the appellants. They are<\/p>\n
the widow, two children and parents of deceased Dr. Raveendran. Dr.<\/p>\n
Raveendran was working as Quality Control Manager in ATV Projects<\/p>\n
India Ltd., Mumbai. At 1.00 a.m. on 31.3.1996, he was travelling in a bus<\/p>\n
bearing registration No. GJI V 9951, owned and insured by respondents 1<\/p>\n
and 3, from Mumbai to Ahamedabad. When reached at Auranga Bridge at<\/p>\n
Valsad in Gujarat State the bus, which was driven by the 2nd respondent,<\/p>\n
went off the bridge and fell into the river. As a result, Dr. Raveendran was<\/p>\n
slapped a watery grave.        Attributing negligence against the second<\/p>\n
respondent, who is now removed from party array, the appellants preferred<\/p>\n
the above petition before the Tribunal below claiming a sum of Rs. 40<\/p>\n
lakhs as compensation.\n<\/p>\n
      2. During the enquiry, the Tribunal below recorded the evidence of<\/p>\n
the first appellant as PW.1 and Exts. A1 to A6 were marked.              The<\/p>\n
M.A.C.A. 791\/2003                      2<\/span><\/p>\n
negligence attributed against the second respondent was found in favour of<\/p>\n
the appellants.   Consequently, the respondents were        found liable to<\/p>\n
compensate the appellants.\n<\/p>\n
      3. Relying upon Ext.A4 salary certificate, the Tribunal arrived at a<\/p>\n
finding that the deceased was drawing a monthly salary of Rs.12,450\/-.<\/p>\n
But, the Tribunal reduced a sum of Rs. 6,450\/- towards personal<\/p>\n
expenditure and Rs. 6,000\/- was determined as the loss of monthly<\/p>\n
dependency. The deceased was aged 37 years as is evidenced by Ext.A6,<\/p>\n
the front page of SSLC Book. Taking note that the first appellant later got<\/p>\n
employment, the multiplier was determined at 12. Calculating so, a sum of<\/p>\n
Rs. 8,64,000\/- was determined as the compensation for loss of dependency.<\/p>\n
The Tribunal also awarded the following sums under various heads: (i)<\/p>\n
funeral expenses Rs.2,500\/-, (ii) hospital expenses rs.2,000\/-, (iii)<\/p>\n
compensation for pain and suffering Rs. 5,000\/-, (iv) compensation for loss<\/p>\n
of consortium Rs. 25,000\/ and (v) compensation for loss of love and<\/p>\n
affection Rs. 25,000\/-. In total, a sum of Rs. 9,23,500\/- was awarded with<\/p>\n
interest at the rate of 9% per annum.        Challenging inadequacy of the<\/p>\n
compensation awarded, this appeal was filed.\n<\/p>\n
      4.   The liability of the respondents, especially that of the third<\/p>\n
respondent as insurer is not at all challenged. Dispute is only regarding the<\/p>\n
M.A.C.A. 791\/2003                      3<\/span><\/p>\n
quantum. We heard the learned counsel appearing for the appellants as well<\/p>\n
as the standing counsel for the third respondent.\n<\/p>\n
      5.   It is not disputed that deceased Dr. Raveendran was working as<\/p>\n
Quality Control Manager in ATV Projects India Ltd., Mumbai. This is<\/p>\n
proved by the testimony of first appellant as PW.1 as well as by Ext.A4<\/p>\n
salary certificate. Ext.A4 would show that the deceased was drawing a<\/p>\n
basic pay of Rs. 7,000\/- and special allowance of Rs. 1,000\/-.            The<\/p>\n
following amounts were also paid to him as         reimbursement per month.<\/p>\n
Maintenance Rs. 2,000\/-, books and periodicals Rs. 1,000\/-, conveyance Rs.<\/p>\n
1,050\/- and education Rs. 400\/-. Thus, the total remuneration was certified<\/p>\n
at Rs. 12,450\/-. It is not disputed that the above amount was subjected to<\/p>\n
income-tax. What was the tax payable is not revealed out. The appellants<\/p>\n
did not care to produce the tax return. So we are not in a position to<\/p>\n
determine the exact net income. However, the learned counsel appearing<\/p>\n
for the appellants heavily assailed the deduction of Rs. 6,450\/- ie. 52% of<\/p>\n
the salary towards personal expenses. The learned counsel also canvassed<\/p>\n
our attention to Ext.A5 certificate whereby it is seen that the deceased was a<\/p>\n
doctorate holder in technology and submitted that the Tribunal below failed<\/p>\n
to take into account the future prospects in determining the compensation.<\/p>\n
According to the learned counsel, deceased, being a highly qualified person,<\/p>\n
M.A.C.A. 791\/2003                     4<\/span><\/p>\n
would have very bright future prospects.         Relying upon the decision<\/p>\n
reported in Sarla Varma v. Delhi Transport Corporation (2010(2) KLT<\/p>\n
802(SC) the learned counsel further submitted that the Tribunal should have<\/p>\n
taken into account the future prospects also and that the compensation now<\/p>\n
awarded is too low and is without due regard to the ground reality. Having<\/p>\n
heard either side, we find some merit in the submission. Taking note that<\/p>\n
the deceased was survived by parents, wife and two children, we find that<\/p>\n
the Tribunal below went wrong in deducting 52% of the salary for personal<\/p>\n
expenses. Regarding the deduction from salary towards personal expenses<\/p>\n
of the deceased, the Apex Court had given guidelines in Sarala Varma’s<\/p>\n
case (supra). At paragraph 30, it is held as follows:\n<\/p>\n<\/p>\n
                   “Though in some cases the deduction to be
\n            made towards personal and living expenses is
\n            calculated on the basis of units indicated in Trilok
\n            Chandra, the general practice is to apply standardised
\n            deductions.    Having considered several subsequent
\n            decisions of this court, we are of the view that where
\n            the deceased was married, the         deduction towards
\n            personal and living expenses of the deceased, should
\n            be one-third (1\/3rd) where the number of dependent
\n            family members is 2 to 3, one-fourth (1\/4th) where the
\n            number of dependant family members is 4 to 6, and
\n            one-fifth (1\/5th) where the number of dependant family
\n            members exceeds six.”<\/p><\/blockquote>\n
      6.   Here, in this case, there are six dependants.       If the above<\/p>\n
M.A.C.A. 791\/2003                    5<\/span><\/p>\n
guidelines given by the Apex Court is accepted, only 1\/5th of the salary is to<\/p>\n
be deducted for personal and living expenses of the deceased.       But we<\/p>\n
notice that the appellants are residing in their native place whereas the<\/p>\n
deceased was employed at Mumbai and staying there. The total salary<\/p>\n
certified in Ext.A4 in fact includes maintenance expenses, conveyance<\/p>\n
expenses and allowance for books and periodicals. It is not disputed that<\/p>\n
Mumbai is a very costly city. The deceased was a high ranking officer. In<\/p>\n
the above circumstances, he had to spend much amount towards personal<\/p>\n
and living expenses at Mumbai.        However, taking into account of the<\/p>\n
entire circumstances including the number of dependants, we are of the<\/p>\n
opinion that at no stretch of imagination more than 1\/3rd can be deducted<\/p>\n
towards living and personal expenses of the deceased. But, we are not able<\/p>\n
to fix a correct figure because before us there is no evidence regarding the<\/p>\n
income tax payable. It is not disputed that the deceased would have been<\/p>\n
an income tax assessee with the salary certified in Ext.A4.         So also,<\/p>\n
regarding the profession tax payable, there is no evidence. Since there is<\/p>\n
no evidence regarding the taxes payable, we have no other go but to have a<\/p>\n
‘rule of thumb’ to determine the monthly loss of dependency.<\/p>\n
       7     6. The learned counsel for the appellants would further submit<\/p>\n
that the deceased was a well qualified engineer and well employed in a well<\/p>\n
M.A.C.A. 791\/2003                       6<\/span><\/p>\n
run company. He being highly qualified, there was every bright chance for<\/p>\n
increment as well as for promotion.      According to the learned counsel, in<\/p>\n
this regard also, the Apex Court had given guidelines in Sarala Varma’s<\/p>\n
case (supra).      In that case, referring to the decision in K.S.R.T.C. vs.<\/p>\n
Susamma Thomas<\/a> (1994(1) KLT 67 = 1994 (2) SCC 176), at para 24, it<\/p>\n
is held as follows:\n<\/p>\n
              “In Susamma Thomas, this Court increased the
\n              income by nearly 100%, in Sarala Dixit, the income
\n              was increased only by 50% and in Abati Bezbaruah
\n              the income was increased by a mere 7%. In view of
\n              imponderables and uncertainties, we are in favour of
\n              adopting as a rule of thumb, an addition of 50% of
\n              actual   salary to the actual salary income of the
\n              deceased towards future prospects, where the
\n              deceased had a permanent job and was below 40
\n              years. (Where the annual income is in the taxable
\n              range, the words ‘actual salary’ should be read as
\n              ‘actual salary less tax’). The addition should be only
\n              30% if the age of the deceased was 40 to 50 years.
\n              There should be no addition, where the age of
\n              deceased is more than 50years. Though the evidence
\n              may indicate a different percentage of increase, it is
\n              necessary to standardise the addition to avoid
\n              different yardsticks being applied or different
\n              methods of calculations being adopted. Where the
\n              deceased was self-employed or was on a fixed salary
\n              (without provision for annual increments etc.), the
\n              courts will usually take only the actual income at the
\n              time of death. A departure therefrom should be made
\n              only in rare and exceptional cases involving special
\n              circumstances.”<\/p><\/blockquote>\n
      8. Admittedly, regarding the increment payable to the deceased or<\/p>\n
M.A.C.A. 791\/2003                    7<\/span><\/p>\n
the chance for future prospects, there is absolutely no evidence.  It is true<\/p>\n
that the deceased was a doctorate holder in technology. If he is competent,<\/p>\n
there is every chance for having better prospects in employment especially<\/p>\n
because at the time of the accident, the deceased was aged only 37 years.<\/p>\n
Regarding the competency, we find nothing to doubt. Taking into account<\/p>\n
of the high qualification of the deceased, we cannot rule out chances for<\/p>\n
better placement or promotion and periodical increment or revision in<\/p>\n
salary. But in the absence of reliable evidence regarding the increment or<\/p>\n
the chance for better prospects, we have to have some guess work.<\/p>\n
      9. The Tribunal below adopted the multiplier of 12 for the reason<\/p>\n
that the first appellant had got an employment subsequent to the accident.<\/p>\n
In para 11 of the impugned award, it is mentioned that the first applicant<\/p>\n
had obtained a job in the company where her husband was working, as a<\/p>\n
trainee. This finding of the Tribunal below is very heavily assailed by the<\/p>\n
learned counsel appearing for the appellant. The learned counsel had taken<\/p>\n
us through the evidence of PW.1. In the evidence, it is stated that the first<\/p>\n
appellant had, as on the date of examination, been working as a trainee in<\/p>\n
AVT Company. According to the learned counsel, the company in which<\/p>\n
the deceased was working is ATV Product Ltd. and it is a separate entity.<\/p>\n
Going by the evidence of PW.1 and Ext.A4, we find that the submission<\/p>\n
M.A.C.A. 791\/2003                     8<\/span><\/p>\n
made by the learned counsel for the appellant is absolutely correct.        The<\/p>\n
first appellant got employment in another company. Even if it is assumed<\/p>\n
that the first appellant had got an employment under compassionate ground<\/p>\n
in the same company in which her husband was working, that is not at all a<\/p>\n
reason to reduce the multiplier. We notice that the accident was in 1996.<\/p>\n
The award of the Tribunal below is in 2003. This appeal is coming up for<\/p>\n
hearing in 2010. For one reason or other, proceeding for determining<\/p>\n
compensation is being dragged.       There was nobody to bother about the<\/p>\n
appellants who were depending upon the income of the deceased for their<\/p>\n
livelihood. The dependants of the deceased were constrained to search for<\/p>\n
means for livelihood in their own way.      Unless they find out some job<\/p>\n
they have to be in poverty. In the above circumstances, if some of the legal<\/p>\n
heirs went in search of some job and obtained a job, that shall not be a<\/p>\n
reason to reduce the compensation. Unless the first appellant had gone for<\/p>\n
some employment she could not have survived with her children. Rather<\/p>\n
than taking alms or living at the mercy of the relatives, if the first appellant<\/p>\n
sought for an employment, that may not be a reason to reduce the multiplier.<\/p>\n
An identical issue had come up for consideration before this Court in<\/p>\n
Geetha Kumari v. Rubber Board,<\/a> (1994(1) KLT 674). At Para 19, it was<\/p>\n
held as follows:\n<\/p>\n
M.A.C.A. 791\/2003                     9<\/span><\/p>\n
             “Accordingly we hold that no portion of the pension,
\n             insurance money, gratuity, provident fund or any
\n             gratuitous    payment     received    by   the    legal
\n             representatives of a deceased employee can be
\n             deducted from the amount of compensation payable
\n             to them under the M.V. Act. So also the salary or any
\n             part thereof which may be payable to the widow from
\n             the employment      given to her on compassionate
\n             grounds on account of her husband’s death cannot be
\n             deducted from the compensation payable to her under
\n             the M.V. Act. No part of the income that the widow
\n             or other legal representatives may be getting from any
\n             business or profession, whether it is a continuation of
\n             the business of the deceased or a new business started
\n             by them can be deducted from such compensation.”<\/p><\/blockquote>\n
      10. We find no reason to take a different view. We further find that<\/p>\n
the Tribunal below was not justified in reducing the multiplier.    Having<\/p>\n
due regard to the age of the deceased, we find that the correct multiplier to<\/p>\n
be applied is 15 and not 12.\n<\/p>\n
      11. Taking into account of the entire facts and circumstances, the<\/p>\n
salary that the deceased was drawing as on the date of accident and that it<\/p>\n
was subjected to taxes and the future prospects of getting better placement<\/p>\n
or increment in the salary though not mentioned in Ext.A4, we find that to<\/p>\n
determine the compensation for loss of dependency, after deducting the<\/p>\n
personal expenses, the monthly loss of dependency can be determined at<\/p>\n
Rs. 9,000\/-. Taking into account of the age of the deceased, it is to be<\/p>\n
multiplied for 15 years. If calculated so, the compensation for loss of<\/p>\n
M.A.C.A. 791\/2003                       10<\/span><\/p>\n
dependency would come to Rs. 16,20,000\/- instead of Rs. 8,64,000\/-.<\/p>\n
Going by the compensation awarded on other counts, we find that no<\/p>\n
interference is required, because the compensation awarded on those heads<\/p>\n
are just and reasonable.      To summarize, we find that the appellants are<\/p>\n
entitled to a further sum of Rs. 7,56,000\/- towards enhanced compensation.<\/p>\n
The appeal would stand allowed to that extent.\n<\/p>\n
       In the result, the appeal is allowed in part and the compensation<\/p>\n
awarded by the Tribunal below at Rs. 9,23,500\/- would stand enhanced to<\/p>\n
Rs. 16,79,500\/-. Therefore, appellants are entitled to a further sum of Rs.<\/p>\n
7,56,000\/- (seven lakhs fifty six thousand only). The appellants are also<\/p>\n
entitled to interest at the rate of 7.50 % per annum on the enhanced amount<\/p>\n
from the date of petition till realisation. There will be no order as to costs.<\/p>\n
                                                       PIUS C. KURIAKOSE ,
\n                                                                       (JUDGE)<\/p>\n
                                                          P.S. GOPINATHAN,
\n                                                                        JUDGE.\n<\/p>\n
\nknc\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mrs.Pushpa Raveendran vs Sri.Rajinikant Prabhudas on 28 October, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-150244","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMrs.Pushpa Raveendran vs Sri.Rajinikant Prabhudas on 28 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mrs-pushpa-raveendran-vs-sri-rajinikant-prabhudas-on-28-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mrs.Pushpa Raveendran vs Sri.Rajinikant Prabhudas on 28 October, 2010 - 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