in the instant case, may be having so many personal needs. He
might have availed housing loan, vehicle loan, personal loans etc.,
from the employer and may be effecting timely remittance by way
of monthly installments. That apart, there may be deductions
towards contribution to Provident Fund, Pension fund etc., and all
these deductions clearly reflect the amounts spent by such employee
from his pay packet containing the gross salary. In otherwords, these
amounts, by way of deductions made are part of his hard earned
money and as such, it could not have been deducted to work out the
monthly income. The same should have been reckoned by the
Tribunal for working out the monthly income and for appropriate
multiplicand. In the said circumstance, we deprecate the course
followed by the Tribunal and hold that the entire monthly salary of
Rs.8,802/-, as certified in Ext.A12 should have been accepted by the
Tribunal without effecting any deduction as no deduction is shown
against the income tax.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE P.R.RAMACHANDRA MENON
&
MR. JUSTICE ANIL K.NARENDRAN
29TH DAY OF FEBRUARY 2016
MACA.No. 1112 of 2006
THRESSIAMMA SEBASTIAN,
Vs
SHOJI RAM, S/O. GANGA RAM,
Inadequacy of the compensation awarded by the Tribunal in
respect of the death of the husband of the appellant herein is the
subject matter of challenge in this appeal, preferred for
enhancement of the compensation.
2. The accident was on 13.6.2006. The husband of
the appellant was travelling as a passenger in a jeep bearing
registration No.RJ-20-P/2743 and when the vehicle reached the
place of occurrence, a truck bearing registration No.RSH-3387
driven, owned and insured by respondents 1 to 3 before the
Tribunal dashed against the jeep causing fatal injuries, leading to
the death of husband of the appellant and causing injuries to others.
The loss caused in this regard was sought to be compensated by
filing a claim petition before the Tribunal by the appellant joining
hands with the daughters and son, who in turn have been
transposed as respondents in this appeal (for the reason that they
were not readily available in station, as put forth by the learned
counsel for the appellant). It is also stated that there is no conflict of
interest between the appellant and the other claimants.
3. The evidence adduced before the Tribunal consist
of Exts.A1 to A17 produced and marked from the part of the
claimants. The respondents chose to produce Exts.B1(a) to B1(g)
and Ext.B2. No oral evidence was adduced by both sides. Based on
the materials on record, the Tribunal arrived at a finding that the
accident was solely on the negligence on the part of the driver of the
truck and proceeded to fix the compensation accordingly.
4. Coming to the quantum of compensation payable,
the specific case put forth before the Tribunal was that the deceased
was having a permanent employment in the Kanakkary Co-
operative Bank Ltd., Kheroli, in Kottayam District and was drawing a
monthly income of Rs.8,802/-. This was sought to be substantiated
by producing a salary certificate issued by the employer bank, which
was marked as Ext.A12. The claim was contested by the respondent
insurance company alone and the owner and driver of the vehicle
were declared ex-parte. The insurer contended that, the 'take home
pay' of the deceased was on a much lower level as disclosed from
the acquittance roll issued from the bank, which was produced
before the Tribunal. The Tribunal simply ignored the salary
certificate stating that the same was not properly proved, however,
choosing to place reliance on the acquittance roll, reckoned only
Rs.3739/- as the 'take home pay' after deduction of Rs.5608/-, that
too, after deducting 1/3 towards the personal expenses. It was
accordingly that the annual dependency was worked out as
Rs.44,868/-. Based on the age of the deceased as 48 years, the
appropriate multiplier was fixed as '13', and thus the loss of
dependency worked out as Rs.5,83,184/-. Adding amounts under
different heads, the total compensation payable was fixed as
Rs.6,63,409/- which was directed to be satisfied with interest at the
rate of 7.5% from 5.5.2011, the date of petition, till the realisation,
plus cost. This is sought to be enhanced at the instance of the
appellant herein.
5. Heard Sri. Amal Darsan, the learned counsel
appearing for the appellant as well as the learned counsel appearing
for the insurance company.
6. The basic question to be considered is whether
the Tribunal was justified in deducting a sum of Rs. 5608/- from the
total salary certified in Ext.A12 salary certificate, placing reliance on
acquittance roll. A copy of the certificate is placed for perusal of
this Court by the learned counsel. On going through the same, it is
seen that the deceased was drawing a basic pay of Rs.6,425/, D.A
of Rs.2056/- and H R A of Rs.321/-, thus coming to a total of
Rs.8,802/-, by virtue of the employment as a senior clerk in the
Bank, as on 31.5.2000, in the scale of pay of 3535-6600. It is true
that, nobody was examined by the claimants (from the part of the
employer) in support of the said certificate. But there is no dispute
with regard to the factum of employment as a senior clerk in the
Kanakkary Co-operative Bank Ltd., and the respondent insurance
company had also sought to rely on the 'acquittance roll' issued by
the very same Bank (the employer).Then, the question is whether the
deductions were justified and the balance amount shown in the
acquittance roll alone could be taken as the monthly income or
whether the entire salary is to be reckoned of course, subject to
deduction of income tax, if any.
7. It has to be borne in mind that the employer
concerned was a co-operative society, functioning in terms of the
relevant provisions of the Acts and Rules (Kerala Co-operative
Societies Acts & Rules). By virtue of the scheme of the statute, there
is strict monitoring over the society by the Departmental Authorities
and the contents of the certificates issued by the employer
Society/Bank can never go wrong, particularly since supported by the
acquittance roll, by virtue of periodical inspection, audit and such
other check measures. There is no dispute for the respondent
insurance company as to the maintenance of records by the
employer society, who in fact has produced the acquittance roll and
sought to rely on the same. The question is whether the deduction is
correct or sustainable.
8. An employee who is serving under an employer as
in the instant case, may be having so many personal needs. He
might have availed housing loan, vehicle loan, personal loans etc.,
from the employer and may be effecting timely remittance by way
of monthly installments. That apart, there may be deductions
towards contribution to Provident Fund, Pension fund etc., and all
these deductions clearly reflect the amounts spent by such employee
from his pay packet containing the gross salary. In otherwords, these
amounts, by way of deductions made are part of his hard earned
money and as such, it could not have been deducted to work out the
monthly income. The same should have been reckoned by the
Tribunal for working out the monthly income and for appropriate
multiplicand. In the said circumstance, we deprecate the course
followed by the Tribunal and hold that the entire monthly salary of
Rs.8,802/-, as certified in Ext.A12 should have been accepted by the
Tribunal without effecting any deduction as no deduction is shown
against the income tax.
9. The learned counsel for the appellant sought to
place reliance on the verdict passed by the Supreme Court in Sarala
Verma and others v. Delhi Transport Corporation and
another [2010 (2) KLT 802], where it has been held that, in the
case of permanently employed persons, future prospects have to be
considered by adding 50% of salary in respect of persons up to 40
years and that in the case of persons between 40-50 years, it
should be 30%. The deceased in the instant case had crossed 48
years and as such, by virtue of his permanent employment in
Kanakkary Co-operative Bank Ltd., he is entitled to have an
enhanced monthly income of 30% (following the dictum passed by
the Supreme Court), when it comes to Rs.11422.60 [8802+
(8802x30/100)], rounded as Rs.11,443/-. It is fixed accordingly.
The appropriate multiplier in the case of the deceased is '13' going
by Sarala Verma's case. But then, the said amount cannot be
aspired after the retirement age of '58' which is applicable in the co-
operative sector. As such, the multiplier till that date (having
crossed the age of 48 years on the date of accident) will be '10' and
thereafter it will be '3' with a notional income of Rs.5000/-per
month. It is also a matter of consideration as put forth by the
learned counsel for the appellant, that the family of the deceased
consists of 4 members as legal representatives including the widow
and three children. This being the position, going by the decision
of the Supreme Court in Sarala Verma's case (supra) the deduction
for personal expenses should have been only '<' and not 1/3. We
find it appropriate to pursue such a course and in the said
circumstances, on re-working the compensation on the above
factual aspects it comes to Rs. 11,64,870/- i.e.,
(11433x12x3/4x10=10,29,870/+5000x12x3/4x3=1,35,000/-).
After giving credit to the sum of Rs. 5,83,184/- awarded by the
Tribunal, the balance towards loss of dependency comes to
Rs.5,81,686/-. It is awarded accordingly.
10. The learned counsel for the appellant places
reliance on the decision rendered by the Apex Court in Rajesh v.
Rajbir Singh [2013(3) KLT 89], where it has been held that loss
of consortium, loss of love & affection and funeral expenses should
be awarded at the rate of Rs.1,00,000/-, Rs.1,00,000/- and
Rs.25,000/- respectively. We are aware of the said decision but the
accident in the said case was of the year 2007, whereas in the
instant case, it was in the year 2000. Considering the economic
conditions prevailing on the date of accident, this Court finds that
the claimants are entitled to some enhancement, though not
completely to the extent as mentioned in Rajesh's case. The scope
of the said decision has been considered by another Division Bench
of this Court in Valsamma v. Binu Jose [2014(1)KLT 10], and it
has been held that the amounts payable have to be worked out also
with reference to the age of the deceased and age of the
spouse/claimants. We find that a sum of Rs. 20,000/- has been
awarded towards the loss consortium. Considering the age of the
deceased, the age of the first claimant/ the first appellant herein
and the economic conditions prevailing at the time of accident, we
find it appropriate to grant a further sum of Rs.30,000/-, thus
fixing the compensation for loss of consortium at Rs.50,000/-.
Similarly, in respect of the loss for love and affection, only a sum of
Rs.15,000/- has been awarded by the Tribunal in respect of three
children. We find it appropriate to re-fix the amount payable under
this head as Rs.50,000/- and grant a further sum of Rs.35,000/-,
on this count. Towards funeral expenses, as mentioned already,
only a sum of Rs.3,000/- has been awarded. Considering the date
of accident, we enhance the same by Rs.7000/- more. Thus, the
total balance compensation payable comes to Rs.6,53,686/- (rupees
six lakhs fifty three thousand six hundred and eighty six only) which
is required to be satisfied with interest at the rate of 9% p.a. from he
date of petition, till the satisfaction. The policy stands admitted. In
the said circumstances, we direct the respondent insurance company
to satisfy the due amount with interest as aforesaid at the earliest,
at any rate, within one month from the date of receipt of a copy of
the judgment.
The appeal stands allowed.
No costs.
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