IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 MACA.No. 1084 of 2008() ----------------------- ( OPMV.1620/1999 of THE ADDL.M.A.C.T., ERNAKULAM.) .................... APPELLANT(S): APPELLANT/3RD RESPONDENT:- ---------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI -18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONERS:- ---------------------------- 1. USHAKUMARI, W/O LATE VIJAYAN NAIR, "USHUS" 26/529, FRIENDS NAGAR, KONTHURUTHY, KOCHI -13. 2. PREETHA V., D/O LATE VIJAYAN NAIR DO.... DO...... 3. PRASANTHA V., D/O LATE VIJAYAN NAIR, DO..... DO.... ADV. SRI.SREELAL N.WARRIER FOR R1 TO 3 SRI.B.RAGHUNANDANAN FOR R1 TO 3 SRI.T.T.THOMAS FOR R1 TO 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1329/2008 & i.a.nO.3078/08IN MACA 1084/08 DISMISSED. 24.11.2008. SD/- J.B.KOSHY, JUDGE. SD/- V.K.MOHANAN, JUDGE. J.B. KOSHY & V.K.MOHANAN, JJ. --------------------------------------------- M.A.C.A No.1084 of 2008 ---------------------------------------------- Dated, 24th November, 2008. JUDGMENT Koshy, J. Husband of the first respondent sustained injuries in a motor accident. She, along with her two daughters, approached the Motor Accident Claims Tribunal alleging that the accident occurred due to the negligent driving of the vehicle insured by the appellant insurance company and claimed a total compensation of Rs.25,00,000/-. The Tribunal awarded a total compensation of Rs.19,43,724/-. The only dispute raised by the insurance company is that the compensation awarded is on the higher side. The deceased was aged 48. He was an employee of Cochin Shipyard Ltd. as Senior Fitter. The Tribunal found that the monthly income was Rs.18,255/-at the time of accident based upon the salary slip for the month of April, 1999. It is the contention of the appellant/insurance company that the monthly income fixed is very high. Even though the salary slip relied on by the claimants was not marked, it is submitted that the amount shown in the salary slip is inclusive of all other allowances. It is further submitted that over time allowance should not have been included. It is submitted that Rs.3000/- was shown as special recovery advance and that cannot be included in the salary. It is submitted that shift CRL.A. 1084/08 -:2:- allowances, welfare fund etc. should not be included in the monthly income as that was given considering the shift in which he was engaged. The learned counsel for the respondents also produced a pay slip wherein also the monthly pay was Rs.18255/- which was for the previous month. With regard to the overtime allowance, it is submitted that a fixed amount is payable every month as, being a fitter, he was bound to do work as and when required and was getting over time allowance. Therefore even if the special recovery advance mentioned in the salary for April is reduced, the monthly income will be Rs.15,000/-. It was argued that being a public undertaking company, there are periodical wage revisions and if he would have continued in employment, his salary would have been doubled. Apart from the wage revisions, there will be yearly increments and time bound higher promotions and the compensation will depend upon the last drawn salary. Therefore, considering the future prospects, a higher income could have been fixed by the Tribunal. The learned counsel for the insurance company further argued that if he has been continuing in employment, he will have to retire on 1.5.2010 at the age of 60. It is submitted on behalf of the claimants that being a Senior Fitter, after retirement, he could have worked and CRL.A. 1084/08 -:3:- earned more money because of his experience in the public sector undertaking. Considering his expectancy of life and fluctuating economy, a higher multiplier should be taken. It has been repeatedly held that the second schedule should be taken as guideline for fixing the multiplier. Hence no interference is required with the multiplier taken as 13. We are of the view that considering the salary even at the time of the accident, Rs.15,000/- is taken as the monthly income excluding certain allowances. If that be so, deducting one-third for personal expenses, Rs.10,000/- is the monthly loss of dependency of the family. Hence, compensation payable for loss of dependency will be Rs.15,60,000/- instead of Rs.18,98,624/-. It is contended that only meagre amount was awarded under other heads. Considering the total amount awarded, we are not enhancing the amount granted under other heads. Therefore, total compensation payable will be Rs 16,05,100/- with interest as awarded by the Tribunal and the 3rd respondent insurance company is directed to deposit the above amount after deducting the amount already paid, within one month from the date of receipt of a copy of this judgment. 3. The accident occurred in 1999. Nine years have elapsed. CRL.A. 1084/08 -:4:- The children have already become major. It is submitted that they want urgent funds. In the above circumstances, we are of the opinion that on deposit of the amount it can be withdrawn by the claimants in equal shares. Appeal is partly allowed. J.B. KOSHY, JUDGE. V.K.MOHANAN, JUDGE kvm/- CRL.A. 1084/08 -:5:- V.K.MOHANAN, J. No.... Judgment/Order Dated: