Maca/1401/2009 Of Theressia v. Commissioner Of Income Tax, Calicut

PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN &THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 7TH DAY OF MARCH 2013/16TH PHALGUNA 1934 MACA.No. 1401 of 2009 ( ) -------------------------AGAINST THE ORDER/JUDGMENT IN OPMV.1353/2005 of M.A.C.T.,PERUMBAVOORDATED 23.2.2008 APPELLANT(S)/PETITIONERS: ------------------------------------------------ 1. THERESSIA, W/O.LATE JOSEPH, AGED 61 YEARS, KALLARACKAL HOUSE, PARAKKADAVU VILLAGE ELAVOOR P.O. ELAVOOR P.O. 2. GRACY, D/O.LATE JOSEPH, AGED 45 YEARS, -DO -DO- 3. ANNIE, D/O.LATE JOSEPH, AGED 43 YEARS, -DO- -DO- 4. VALSA, D/O.LATE JOSEPH, AGED 41 YEARS, -DO- -DO- 5. SHEEBA, D/O.LATE JOSEPH, AGED 39 YEARS, -DO- -DO- 6. JIJO, S/O.LATE JOSEPH, AGED 35 YEARS, -DO- -DO- BY ADVS.SRI.E.C.POULOSE SMT.BOBBY RAPHEAL.C RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. COMMISSIONER OF INCOME TAX, CALICUT, CALICUT P.O. CALICUT, CALICUT P.O. 2. MUHAMMED.P., S/O.ABDU RAHIMAN, CHEMBAKASSERY HOUSE, CHERUPPA P.O. KOZHIKODE DISTRICT. KOZHIKODE DISTRICT. 3. SR.ALPHONSA @ SHINY, VENERING CONVENT, CHERUVANNOOR P.O. R1 BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON07-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN & BABU MATHEW P.JOSEPH, JJ.==================M.A.C.A.No. 1401 of 2009 ================== Dated this the 7[th] day of March, 2013 J U D G M E N T Siri Jagan, J. The claimants in O.P.(M.V).No. 1353/2005 before the MotorAccidents Claims Tribunal, Perumbavoor, are the appellantsherein. They are the widow and children of late Joseph, who diedin a motor accident on 6.6.2005, on account of negligent drivingof a vehicle owned by the 1[st] respondent and driven by the 2[nd]respondent. The 3[rd] respondent is another daughter of deceasedJoseph. In the O.P. for the death of Joseph, the appellantsclaimed compensation. The Tribunal, after finding negligence onthe part of the 2[nd] respondent, awarded compensation undervarious heads as follows: M.A.C.A.1401/09 - : 2 :- Dissatisfied with the quantum of compensation awarded, theappellants have filed this appeal seeking enhancedcompensation. 2. The appellants contend that although the appellants had adduced convincing evidence regarding the monthly incomeof the deceased as ` 4811/-, the Tribunal has arbitrarily fixed theincome of the deceased only as ` 2500/-, which is notsustainable. They also submit that the compensation awardedunder the other heads are also not commensurate with the losssuffered by the appellants on account of the death of their breadwinner. 3.We have heard the learned counsel for respondents 2and 3 also. 4.The deceased was a headload worker in the FoodCorporation of India. The appellants have produced Ext.A6 wagecertificate issued by the Assistant Manager of the FoodCorporation of India, Kochi, certifying that the deceased was acasual labourer of F.C.I., Angamali Depot, and his gross wagesfor the month of May 2005 was ` 4,811/-. The Manager(Accounts) of the District Office of F.C.I. was examined as PW1.He gave evidence in support of the wage certificate. But in his M.A.C.A.1401/09 - : 3 :- 3.We have heard the learned counsel for respondents 2and 3 also. 4.The deceased was a headload worker in the FoodCorporation of India. The appellants have produced Ext.A6 wagecertificate issued by the Assistant Manager of the FoodCorporation of India, Kochi, certifying that the deceased was acasual labourer of F.C.I., Angamali Depot, and his gross wagesfor the month of May 2005 was ` 4,811/-. The Manager(Accounts) of the District Office of F.C.I. was examined as PW1.He gave evidence in support of the wage certificate. But in his M.A.C.A.1401/09 - : 3 :- evidence he also said that the monthly wages would be so muchonly if the deceased worked on all the working dayscontinuously. On days when he absented, he will not get wagesalso. It is also stated that he would have retired at the age of 60.We are of opinion that in view of the said evidence, although thefinding of the Tribunal that the monthly income of the deceasedwas only ` 2,500/- cannot be accepted, because of theuncertainties of his job, the average monthly wages can be fixedas ` 4,000/-. But we find that the 1[st] appellant was aged 58 yearsand the other appellants were aged 42 years, 40 years, 38 years,36 years and 32 years respectively. Therefore, appellants 2 to 6were major daughters and sons of the deceased and they cannotbe held to be dependents of the deceased. Only the 1[st] appellantcan be taken as the dependent of the deceased. Consequently,the deduction for personal expenses of the deceased should be50% as per the decision of the Supreme Court in Sarla Verma vDelhi Transport Corporation, 2010 (2) KLT 802 (SC). TheTribunal has fixed the age of the deceased as 59 years and themultiplier to be adopted as 8. We do not find anything wrongwith the same. Calculated thus, the appellants would be entitledto ` 1,92,000/- for loss of dependency (` 2000 x 12 x 8). Under M.A.C.A.1401/09 - : 4 :- this head, the appellants would be entitled to additionalcompensation of ` 31,680/- under the head of loss of dependency.On going through the award, we are satisfied that on all otherheads, the Tribunal has awarded just compensation for the deathof Joseph. Therefore, we are not inclined to interfere with thesame. Accordingly, the appellants would be entitled to ` 31,680/-as additional compensation over and above what has beenawarded by the Tribunal. The said amount would carry interestat the rate of 9% per annum from the date of the claim petitiontill date of payment. Respondents 1 and 2 shall pay the samealso, within two months. The appeal is disposed of as above. S.SIRI JAGAN, JUDGE sdk+ Sd/- BABU MATHEW P.JOSEPH, JUDGE ///True copy/// P.A. to Judge M.A.C.A.1401/09 - : 5 :-