MACT; Thressiamma Sebastian Vs. Shoji Ram [Kerala High Court, 29-02-2016]

Motor Accidents Claims – Salary – Deductions –¬†Whether the entire salary is to be reckoned – Held, Entire monthly salary should have been accepted by the Tribunal without effecting any deductions, subject to deduction of income tax, if any.

Tribunal


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

M.A.C.A. No. 1112 of 2006

Dated this the 29th day of February, 2016

APPELLANT(S)/PETITIONER/APPELLANT

THRESSIAMMA SEBASTIAN

BY ADV. SRI.SREELAL N.WARRIER

RESPONDENT(S)/RESPONDENTS

SHOJI RAM AND OTHERS

R3 BY ADV. SRI.E.M.JOSEPH

JUDGMENT

P.R.Ramachandra Menon, J

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 Cooperative 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