BY AD vs THOMAS ABRAHAM (NILACKAPPILLIL)
Case Details
Cited in this judgment
Heard Sri. Thomas Abraham learned Counsel appearing for the appellant and Sri. George A Cherian learned Counsel appearing for the Insurance company.
4. On a consideration of the rival submissions raised across the Bar, this Court finds that the appellants are entitled to succeed on the limited ground of fixation of the dependency compensation. It is beyond dispute that the deceased Vishnu was drawing a monthly income of Rs.23,883/- as evident from Ext.A4 salary slip. Rs.15/- was deducted for each month towards TDS. The Tribunal on contrary proceeded to deduct 2% towards the income tax and Rs.3,000/- towards professional tax. The aforesaid procedure cannot be subscribed by this Court in the light of the decision in Reliance General Insurance, Kochi Vs Bindu M.A.C.A No.2742 of 2021 7 [2025 KHC 228] wherein this Court laid down the principles by which the Tribunals are to be guided in the matter of fixation of income. The liability of the victim to pay tax on receipt of the salary cannot be deducted by the Tribunal while calculating the compensation towards loss of dependency. Viewed in the above perspective, this court cannot sustain the findings of the Tribunal in deducting the amount towards income tax and professional tax which is not covered under Ext.A4 salary slip.
5. A further perusal of the salary slip shows an amount of Rs.23,883/- as the amount received by late Vishnu deducting Rs.15, the amount will come to 23,868/-. Since the deceased was permanently employed the Tribunal erred egregiously in granting only 40% of future prospects whereas the same ought to have been at 50% going by the table fixed by the Supreme Court in Sarla Verma v. Delhi Transport Corporation & Another M.A.C.A No.2742 of 2021 [(2009) 6 SCC 121]. 8
6. Insofar as the first appellant here is concerned it is seen that no compensation was granted under the head loss of consortium. To that extend also the appellant is entitled to succeed.
7. In the result, the appeal is allowed. The award passed by the Tribunal in O.P M V No.761/2018 and O.P M V No.593/2018 is modified as follows: a. Adding 50% future prospects, the income of the deceased comes to an amount of Rs.35,802/- (23,868+(23,868 x 50/100)) b. The appellant is entitled for a compensation of Rs.4,63,692/- (35,802 x 12 x 17 x 2/3 - 44,05,380) towards loss of dependency. c. The appellant is entitled to have a compensation of Rs.3,000/- (18,000-15,000) under the head funeral expense. d. The appellant is entitled to have a M.A.C.A No.2742 of 2021 9 compensation of Rs.16,000/- (48,000 x 2-(40,000 + 40,000) under the head Loss of consortium to wife and child. e. The appellant is entitled to have a compensation of Rs.48,000/-under the head loss of consortium to mother. f. The appellant is entitled to have a compensation of Rs.3,000/-(18,000-15,000) under the head loss of estate. Thus a total of Rs.5,33,692/-(Rupees five lakhs thirty three thousand six hundred and ninety two only) is awarded as the enhanced compensation together with interest at 8% per annum from
23.06.2018 till realization with proportionate cost. Since the appellant has not taken notice to the wife and the minor child who has not been made a party, this Court has no other alternative but to reject the request of the appellant for enhancement in respect M.A.C.A No.2742 of 2021 10 of proportion under which the amount of compensation has to be shared. Therefore this Court confirms the rate at which the amount has to be apportioned as fixed by the Tribunal. While calculating the appellants proportion towards the enhanced compensation, the compensation granted by this Court under the head loss of consortium shall not be taken into consideration. The insurance company shall deposit the amount within two months from the date of receipt of a copy of this judgment. The Tribunal shall issue notice to the claimants in O.P(MV) No.761/2018 before releasing the amounts. Cak Sd/- EASWARAN S. JUDGE
Heard Sri. Thomas Abraham learned Counsel appearing for the appellant and Sri. George A Cherian learned Counsel appearing for the Insurance company.
4. On a consideration of the rival submissions raised across the Bar, this Court finds that the appellants are entitled to succeed on the limited ground of fixation of the dependency compensation. It is beyond dispute that the deceased Vishnu was drawing a monthly income of Rs.23,883/- as evident from Ext.A4 salary slip. Rs.15/- was deducted for each month towards TDS. The Tribunal on contrary proceeded to deduct 2% towards the income tax and Rs.3,000/- towards professional tax. The aforesaid procedure cannot be subscribed by this Court in the light of the decision in Reliance General Insurance, Kochi Vs Bindu M.A.C.A No.2742 of 2021 7 [2025 KHC 228] wherein this Court laid down the principles by which the Tribunals are to be guided in the matter of fixation of income. The liability of the victim to pay tax on receipt of the salary cannot be deducted by the Tribunal while calculating the compensation towards loss of dependency. Viewed in the above perspective, this court cannot sustain the findings of the Tribunal in deducting the amount towards income tax and professional tax which is not covered under Ext.A4 salary slip.
5. A further perusal of the salary slip shows an amount of Rs.23,883/- as the amount received by late Vishnu deducting Rs.15, the amount will come to 23,868/-. Since the deceased was permanently employed the Tribunal erred egregiously in granting only 40% of future prospects whereas the same ought to have been at 50% going by the table fixed by the Supreme Court in Sarla Verma v. Delhi Transport Corporation & Another M.A.C.A No.2742 of 2021 [(2009) 6 SCC 121]. 8
6. Insofar as the first appellant here is concerned it is seen that no compensation was granted under the head loss of consortium. To that extend also the appellant is entitled to succeed.
7. In the result, the appeal is allowed. The award passed by the Tribunal in O.P M V No.761/2018 and O.P M V No.593/2018 is modified as follows: a. Adding 50% future prospects, the income of the deceased comes to an amount of Rs.35,802/- (23,868+(23,868 x 50/100)) b. The appellant is entitled for a compensation of Rs.4,63,692/- (35,802 x 12 x 17 x 2/3 - 44,05,380) towards loss of dependency. c. The appellant is entitled to have a compensation of Rs.3,000/- (18,000-15,000) under the head funeral expense. d. The appellant is entitled to have a M.A.C.A No.2742 of 2021 9 compensation of Rs.16,000/- (48,000 x 2-(40,000 + 40,000) under the head Loss of consortium to wife and child. e. The appellant is entitled to have a compensation of Rs.48,000/-under the head loss of consortium to mother. f. The appellant is entitled to have a compensation of Rs.3,000/-(18,000-15,000) under the head loss of estate. Thus a total of Rs.5,33,692/-(Rupees five lakhs thirty three thousand six hundred and ninety two only) is awarded as the enhanced compensation together with interest at 8% per annum from
23.06.2018 till realization with proportionate cost. Since the appellant has not taken notice to the wife and the minor child who has not been made a party, this Court has no other alternative but to reject the request of the appellant for enhancement in respect M.A.C.A No.2742 of 2021 10 of proportion under which the amount of compensation has to be shared. Therefore this Court confirms the rate at which the amount has to be apportioned as fixed by the Tribunal. While calculating the appellants proportion towards the enhanced compensation, the compensation granted by this Court under the head loss of consortium shall not be taken into consideration. The insurance company shall deposit the amount within two months from the date of receipt of a copy of this judgment. The Tribunal shall issue notice to the claimants in O.P(MV) No.761/2018 before releasing the amounts. Cak Sd/- EASWARAN S. JUDGE