The Commissioner of Income Tax-I vs. M/s. Prasad Film Laboratories Ltd.,

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938 MACA.No. 531 of 2012 () ------------------------ AGAINST THE AWARD IN OP(MV) 1291/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 27-08-2011 APPELLANT(S)/PETITIONERS: ----------------------- 1. P.E.RAMALA W/O.LATE N.P.NISHAD, NADACKAL HOUSE, PERUMBAVOOR, ERNAKULAM DISTRICT.

BY ADVS.SRI.JOJO GEORGE SMT.T.A.LUXY SRI.P.MURALEEDHARAN (THURAVOOR) SRI.P.M.KUNJIMOIDEENKUTTY

MACA.No. 531 of 2012 () RESPONDENTS/RESPONDENTS: -------------- * 1. KURIACHAN.P.M S/O.MATHAI, PANACKAL HOUSE, POTTACHALIPPADAM ROAD, CHANGAPUZHA NAGAR, KALAMASSERY, ERNAKULAM, PIN-683 104 (REGISTERED OWNER). (DELETED)

* 2. MARTIN MATHEW AGED 33 YEARS, S/O.MATHEW, PAPPADIYIL HOUSE, MANNAMKANDAM VILLAGE, KOOMBANPARA DESOM, NEAR RC, CHURCH ADIMALI, IDUKKI DISTRICT, PIN-685 561(DRIVER). (DELETED) * [RESPONDENT NO.1 AND 2 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 10.7.2014 IN I.A.NO.1991 IN MACA 531/2012]

R3 BY ADVS. K.S. SANTHI SRI.GEORGE CHERIAN (THIRUVALLA) R BY SRI.B.KRISHNAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/

C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.531 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2016 J U D G M E N T K.P. Jyothindranath, J. This appeal is preferred by the claimants in O.P.(M.V.) No.1291/2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 2. The claimants are the wife, three minor children and aged father of the deceased N.P. Nishad, who died in a motor vehicle accident occurred on 2.2.2008 at 11.10 p.m. The deceased Nishad was riding his motorcycle bearing registration No.KL-17-B-2915 from south to north direction through the road from Kalamassery TVS Junction, towards Premier Junction. While so, a tanker lorry bearing registration No.KL-7-BG-6501 came in the same direction and tried to overtake the motorcycle and hit against the same and in that accident he sustained fatal injuries and succumbed to the injuries on the spot. A claim petition was moved before the Tribunal claiming a total compensation of Rs.22,58,000/-. But the Tribunal awarded only an amount of

M.A.C.A.No.531 of 2012 2 Rs.9,86,100/-. Aggrieved by the quantum of compensation awarded by the Tribunal, this appeal is preferred. 3. When the appeal came up for hearing, the learned counsel appearing for the appellants submitted before us that the deceased was aged only 37 years as per the entries in the passport produced and marked before the Tribunal. It is also the submission that deceased was a businessman by profession. Deceased was an income tax assessee. Copies of income tax returns for the period 2005 -06 and 2006-07 were produced before the Tribunal. It is also the submission that deceased was engaged in so many business and was earning much. To show the business of the deceased as well as income, the claimants produced Exts.A11 to A33. Without considering all these materials, the Tribunal considered the monthly income of the deceased as Rs.6,000/-. It is also the submission that the amount awarded on various heads like funeral expenses, loss of consortium and loss of love and affection are also on a lower

M.A.C.A.No.531 of 2012 3 level. It is also the submission that towards loss of estate only a sum of Rs.5,000/- was granted. 4. We heard the learned counsel for the Insurance Company, who submitted before us that it is true that Exts.A11 and A12 were produced by the claimants before the Tribunal. But said documents were not proved and there is no evidence to show that actually the deceased was having any such income from the business. It is also the submission that the Tribunal considered and assessed a just compensation and an interference by this court is not warranted. 5. In this case, we have perused Exts.A11 and A12 which are the sealed copies of SARAL forms furnished by the deceased. It bears the seal of the Income Tax Department. Ext.A11 pertains to the financial year 2005-06 whereas Ext.A12 pertains to the year 2006-07. As per Ext.A11, the taxable income shown in the SARAL is as Rs.87,860/-; whereas the income tax payable for the said

M.A.C.A.No.531 of 2012 4 financial year is shown as Rs.6,572/-. As per Ext.A12, the total taxable income is shown as Rs.1,22,280/-; whereas the tax payable is shown as Rs.2,228/-. After considering the fact that the only amount available after deducting the tax will be coming in his hand as actual income and further considering the fact that the average income has to be considered as his annual income, an amount of Rs.8,387/- is considered as his monthly income for assessment purpose. As per the decision reported in Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] and also keeping in mind the number of dependants (five in number) ¼ of the income has to be deducted towards personal expenses of the deceased. On a perusal of the award, it can be seen that the Tribunal deducted 1/5th to assess the dependency compensation which is corrected in this reassessment. Apart from the said amount, 50% has to be added towards future prospects as per the dictum laid down by the decision of the Hon'ble Apex Court in Rajesh

M.A.C.A.No.531 of 2012 5 v. Rajbir Singh [2013 (3) KLT 89 (SC)]. While the future prospects is considered, it is relevant to note that the deceased was a self employed person having a proved income as discussed above and the age of the deceased was proved as below 40 years (as per Ext.A26 passport). Now the amount available for the purpose of calculation will be Rs.9,435/-. It can be seen that as per the award, the multiplier used by the Tribunal is 16, whereas, as per the dictum laid down in Sarla Varma's case (supra) the multiplier that can be used is '15' as the age of the deceased is proved as 37 years. Thus the total compensation available on this head will be Rs.16,98,300/-(9435x12x15). The Tribunal already awarded an amount of Rs.9,21,600/- towards loss of dependency. After deducting the same, a sum of Rs.7,76,700/- is granted to claimants on the head of loss of dependency. 6. Apart from the same, the appellants claimed an amount of Rs.10,000/- towards funeral expenses, but only

M.A.C.A.No.531 of 2012 6 Rs.7,500/- is seen awarded by the Tribunal. As per the decision in Rajesh's case (supra) it can be seen that the claimants are entitled for a minimum sum of Rs.25,000/- on this head. Thus, additionally an amount of Rs.17,500/- is awarded on this head. Similarly on the head of loss of love and affection only a sum of Rs.25,000/- is seen awarded. On this head, they are entitled for another sum of Rs.75,000/- as three claimants are minor children. The first petitioner is the wife of the deceased who is only aged 30 years at the time of accident. Thus Considering the age and all other attending circumstances, she is entitled for an additional sum of Rs.80,000/- under the head of loss of consortium. Thus the appellants will be entitled for an additional sum of Rs.9,49,200/- which is rounded off to Rs.9,50,000/- (Rupees nine lakhs fifty thousand only). 7. The enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realization. The third respondent shall deposit the said

M.A.C.A.No.531 of 2012 7 amount within a period of two months from the date of receipt of a copy of this judgment. In case of failure on the part of the third respondent to deposit the said amount within the stipulated time, the amount remaining to be paid will carry interest at the rate of 9% per annum from the date of petition. The additional amount awarded towards consortium shall be given to the wife/first petitioner alone. The amount awarded towards loss of love and affection i.e.75,000/-, shall be shared equally in between petitioner Nos.2 to 5. Deducting the compensation awarded on these heads, the amount available shall be shared in the same ratio as ordered by the Tribunal in between the claimants. There will be no order as to costs. Sd/- C.T. RAVIKUMAR JUDGE Sd/- K.P. JYOTHINDRANATH

JUDGE //True copy// P.A. TO JUDGE shg/