IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 MACA.No. 742 of 2003() ---------------------- AGAINST AWARD DT 7.7.03 IN OPMV.1013/01 OF MACT, NEYYATTINKARA APPELLANT(S): APPELLANTS.APPLICANTS. ------------------------------------ 1. B.GIRIJA KUMARI, W/O.LATE SUMAN NAIR, SREENIVAS, VENGODE, CHERIAKOLLA, KUNNATHUKAL, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. G.S.JAYASREE, D/O.LATE SUMAN NAIR, SREENIVAS, VENGODE, CHERIAKOLLA, KUNNATHUKAL, NEYYATTINKARA, THIRUVANANTHAPURAM. 3. G.S.RAJASREE, D/O.LATE SUMAN NAIR,(MINOR REP. BY HER MOTHER WO IS THE IST APPELLANT. BY ADV. SRI.R.T.PRADEEP ADV.SRI.V.VIJULAL RESPONDENT(S): RESPONDENT. -------------------------- 1. S.V.KRISHNAN KUMAR, K.V.NIAS, PULLENTHERI, KARAKOBNAM, KUNNATHUKAL, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. THE BRNACH MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, RAMAKRISHNAN BUILDING, AUTO JUNCTION, THIRUVANANTHAPURAM. ADV. SRI.SAJU.S.A FOR R1 SRI.JACOB MURICKAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 742 OF 2003 ```````````````````````````````````````````````````` Dated this the 17th day of June, 2009 J U D G M E N T Joseph, J. This appeal is filed by the claimants. The Motor Accidents Claims Tribunal has awarded a sum of Rs.1,70,564/- with interest at the rate of 9% from 21.8.2001 on an application filed for compensation on account of the death of the husband of the first appellant and father of appellants 2 and 3. 2. We heard learned counsel for the appellants Sri.R.T.Pradeep and learned counsel for the Insurance Company Sri.Jacob Murickan. Sri.R.T.Pradeep essentially raises two contentions. He would submit in the first place that the Tribunal has erred in calculating the compensation on the basis that the deceased had a monthly income of Rs.2,000/-. He would point out that the claim was on the basis that the deceased was earning Rs.4,500/-. Of the same, Rs.3,000/- was attributable to monthly income which the deceased was earning from his employment as godown supervisor in a private concern. Rs.1,500/- out of MACA.742/03 : 2 : Rs.4,500/- was sought to be attributed as the income derived from agricultural operations. He would point out that the appellants had produced Ext.A6 employment-cum-salary certificate showing income of Rs.3,000/- per month. It is also pointed out that the claimants were prepared to take out notice to the Managing Partner to prove the monthly salary at the time of the death. But the Tribunal opined that the Managing Partner need not be summoned and salary certificate can be acted upon. Accordingly, it is pointed out that the application was got dismissed as not pressed. Thereafter, the Tribunal ought not to have rejected the case of the appellants at any rate that deceased was earning an income of Rs.3,000/- from his employment, he contends. Learned counsel for the appellants also submits that the Tribunal should have found that Rs.1,500/- was derived from agricultural operations. The second contention taken is that an amount of Rs.10,000/- alone is awarded towards loss of estate. According to the learned counsel for the appellant, the Tribunal has erred in awarding such a meagre sum. He relies on the decision of the apex court in Bangalore Metropolitan Transport Corporation MACA.742/03 : 3 : Vs. Sarojamma and another [2008 (5) SCC 142]. Therein, the apex court was considering an application under section 163A of the Motor Vehicles Act and held, inter alia, as follows:- “ 11. This aspect of the matter has also been considered in U.P. SRTC Vs. Trilok Chandra by a three-Judge Bench of this Court in the following terms: ' The compensation to be awarded has two elements. One is the pecuniary loss to the estate of the deceased resulting from the accident, the other is the pecuniary loss sustained by the members of his family for his death. The Court referred to these two elements in Gobald Motor Service case. These two elements were to be awarded under section 1 and section 2 of the Fatal Accidents Act, 1855 under which the claim in that case arose. The Court in that case cautioned that while making the calculations no part of the claim under the first or the second element should be included twice. The Court gave a very lucid illustration, which can be quoted with profit: '... An illustration may clarify the position. X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependants(we will ignore the other expenditure incurred by him). X-Y ie.Z, is the amount he MACA.742/03 : 4 : saves every year. The capitalised value of the income spent on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under section 1 they got capitalised value of Y, under section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z ie. X, would be the capitalised value of his entire income.' ” On the strength of the said observations, learned counsel for the appellants would contend that the amount which would have been saved by the deceased should have been arrived at and MACA.742/03 : 5 : thereafter the said amount should have been capitalised and the same should have been awarded towards the loss of estate and the Tribunal erred and acted mechanically in granting an amount of Rs.10,000/- alone towards loss of estate. 3. Per contra, learned counsel on behalf of the insurance company would raise the following contentions. He would submit that the income has been arrived at on the basis of the evidence available. There is absolutely no evidence produced regarding the agricultural operations alleged. No evidence was produced regarding the lands for the said purpose, he points out. He would further submit that the contention advanced on the basis of 2008 (5) SCC 142 cannot hold good. He points out that the amount awarded towards loss of estate should essentially be the amount which is saved by the deceased and which would be deemed to accrue to the estate following his death and he would submit that the materials on record in this case do not warrant the grant of any further sum towards loss of estate. 4. As regards the question relating to income of the deceased is concerned, we would think that the amount fixed at MACA.742/03 : 6 : Rs.2,000/- per month may be a too meagre. The first appellant has been examined. It may be true that the employer is not examined. We cannot entirely overlook the case of the appellants. It is a fact that the appellants have the definite case that they were prepared to take out notice to the employer and prove the income as shown in the certificate and it was not prosecuted because of the reasons we have already referred to. It is inevitable that in the fixation of income some amount of guess work is involved. Having regard to all the facts, we can fix the income of the deceased at Rs.3,000/- per month. As regards the issue regarding the question of enhanced award of compensation towards loss of estate, we do not think that the appellants have made out any case for the grant of further compensation in this regard as such. When the dependency is calculated, necessarily the amount that would be spent necessary for the personal expenditure of the income by the deceased would have to be deducted. Normally 1/3rd is accepted as appropriate amount to be deducted towards the personal expenditure of the deceased. It may be true that going by the principles for awarding compensation towards loss of MACA.742/03 : 7 : estate being the amount which is saved by the deceased a calculation which has been adumbrated by the apex court and extracted by us may be possible. But, this is a matter for which there must be definite pleading as also proof. Otherwise, there will be duplication in the matter of payment of compensation. This is for the reason that if the amounts are set apart on the logic that they are needed for the personal expenses, then, it cannot at the same time, be maintained the said amount which would have been spent would be available for being considered for the grant of compensation towards loss of estate. But, it is possible if the materials are produced in an appropriate case where pleadings are available and materials are also proved to the satisfaction of the Tribunal to justify the grant of larger sum towards loss of estate. We do not think that such a situation is present in the facts of this case as such. In the result, the appeal is allowed in part. The income of the deceased is fixed at Rs.3,000/- of the same 1/3rd i.e., Rs.1,000/-, will stand deducted to the personal expenses of the deceased. In the light of the increased income, we feel that the appellants can be awarded Rs.5,000/- towards loss of estate. MACA.742/03 : 8 : Accordingly, the appellant is entitled to Rs.69,000/- (rounded of from Rs.68,936/-). The appeal is partly allowed and the appellant is allowed to realise a sum of Rs.69,000/- with 7.5% interest from the date of petition till date of realisation from the respondents. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L. JOSEPH FRANCIS, JUDGE) aks // True Copy // P.A. to Judge