BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/07/2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.(MD).No.56 of 2009 And M.P.(MD).No. 1 of 2009 The Divisional Manager The New India Assurance Co., Ltd., 161-A, East Veli Street Madurai - 625 001. .. Appellant Vs 1. Mr.T.Chelladurai 2. Tmt.D.Maragadam 3. Minor C.Nivitha Varadhalakshmi Minor represented by Father & Natural guardian ..Respondents PRAYER Appeal filed under Section 173 of the Motor Vehicles Act, against the Decree and Judgement dated 24.07.2008 made in M.C.O.P.No.1630 of 2006 on the file of the Motor Accident Claims Tribunal ( Additional District and Sessions Judge, FTC No.3), Madurai. * * * * * !For Appellant ...Mr.B.Vijay Karthikeyan ^For Respondents ...Mr.K.Mahendran :JUDGMENT
This appeal has been preferred by the Insurance Company against the award
of a sum of Rs.5,85,000/- as against the claim of Rs.10,00,000/- by the
respondents 1 to 3/claimants.
FACTUAL MATRIX
2. The case of the respondents/claimants before the Tribunal was that one
Mr.Ragavendran, a final year B.E., (Automobile Engineering) student, met with an
accident on 13.04.2006 and died on the spot due to multiple injuries.
3. According to the claimants, the deceased died when he was riding the
motor cycle from the East to West in Melur-Trichy N.H. Main road and the fourth
respondent driver drove the lorry in a rash and negligent manner from West to
East and came to the wrong side and dashed against the motor cycle in the
southern side of the road and then went off the road and dashed against the
Tamarind tree in the southern side of the road and thereby the deceased
C.Ragavendran thrown out from the motor cycle and died on the way to Hospital.
According to the claimants, the deceased was a final year B.E., (Automobile
Engineering) student and had a potential of earning more and though, a sum of
Rs.6,850/- was calculated as compensation and they restricted their claim to
Rs.10,00,000/-.
4. The appellant /Insurance Company contested the claim petition by
filing detailed counter statement and in paragraph 3 of the counter statement,
it was pleaded that there was no negligence on the part of the driver of the
fourth respondent. On the side of the claimant, three witnesses, namely, PW-1
to PW-3, were examined and the following documents were marked as follows:-
Exhibit P-1 – Certified copy of F.I.R.
Exhibit P-2 – Certified copy of postmortem certificate
Exhibit P-3 – Certified copy of charge sheet
Exhibit P-4 – Certified copy of Judgement passed in
C.C.No.252 of 2006
Exhibit P-5 – Legal heirship certificate issued by Tahsildar,
Melur
Exhibit P-6 – Authorisation letter issued by MAVMM
Engineering College, Madurai.
Exhibit P-7 – Certificate issued by MAVMM Engineering
College
Exhibit P-8 – Identity Card of the deceased Ragavendran
5. On the side of the appellant, no one was examined and no documents
were marked. One Court witnesses, namely, CW-1 was examined and three documents
were marked as X-1 to X-3 and the same is held as follows:
X-1 – Particulars of driving licence letter given by the Motor
Vehicle Inspector Gr.I.
X-2 – Xerox copy extract of driving licence issued to the
deceased compared with the original
X-3 – Xerox copy of the office copy of driving licence
extracted from the licence register.
FINDINGS OF THE TRIBUNAL:
6. On appreciation of pleadings and evidence and the exhibits marked
before it, the Tribunal found that the driver of the fourth respondent was
responsible for the accident. The reasoning were elaborately dealt with by the
Tribunal in paragraph 8 of the award. The Tribunal found that the deceased,
Ragavendran was holding proper licence to ride the two wheeler based on Exhibit
X-1 to X-3. For coming to the conclusion that the driver of the fourth
respondent alone was responsible for the accident, the Tribunal relied upon the
testimony of PW-1.
7. Apart from that, the Tribunal considered Exhibit P-1- F.I.R. and
Exhibit P-3- Charge sheet, filed against the lorry driver and Exhibit P-4- the
Judgement passed in C.C.No.252 of 2006, in which, the driver of the fourth
respondent was convicted for the offence of rash and negligent driving. Based
on the evidence and the exhibit as stated above, the Tribunal found that the
fourth respondent driver was responsible for the accident.
AWARD OF TRIBUNAL:
8. The Tribunal awarded the compensation as follows:-
Loss of Income : Rs.5,40,000/-
Loss of Love and
affection for 1st and
2nd Respondent : Rs. 30,000/-
Loss of Love and
affection for the 3rd
Respondent : Rs. 10,000/-
Funeral Expenses: Rs. 5,000/- --------- Rs.5,85,000/- ---------
The aforesaid award is being challenged before this Court in this appeal.
NEGLIGENCE:
9. There is no challenge by the appellant with regard to the negligence
part. Even otherwise, the tribunal after appreciating the pleading, evidence on
record correctly found that the driver of the insured vehicle alone was
responsible for the accident and therefore the finding of the tribunal does not
warrant any inference and the same is confirmed.
QUANTUM:
10. As far as the quantum is concerned, the counsel for the
appellant attacked the award on three grounds:-
1. That the deceased was an Engineering college student and non-earning
member and the Tribunal wrongly fixed the monthly income at Rs.4,500/- and hence
the finding in this regard has to interfered with.
2. The multiplier adopted by the Tribunal is contrary to the Judgement
of the Hon’ble Supreme Court passed in Lakshmana Iyer case.
3. The Tribunal ought to have deducted 50% from the monthly income of
the deceased towards personal expenses, as the deceased was a bachelor.
11. In support of the above submissions, he relied upon the Judgement of
the Hon’ble Supreme Court passed in Sarala Verma and others -Vs- Delhi Transport
Corporation and another reported in (2009) 6 SCC 121 = 2009 ACJ 1298. He also
further relied upon another Judgement of the Hon’ble Supreme Court passed in
Syed Basheer Ahamed and others -Vs- Mohammed Jameel and another reported in
(2009) 2 SCC 225.
12. The learned counsel further relied upon another Judgement of the
Division Bench of this Court TATA AIG General Insurance Company Ltd., -Vs-
Balakrishna Ready and five others reported in 2009 (1) TANMAC 205, in the said
Judgment for the death of 19 years old Engineering student, this Court fixed at
Rs.3,000/- as his monthly income and the same amount should be fixed in this
case also.
13. On the other hand, Mr.K.Mahendran, the learned counsel for the
respondents/claimants supported the award of the Tribunal contending that the
deceased was 22 years final year B.E., student and he was a bright student and
having the potential of earning more and the future prospectus are more. He
relied upon the judgement of the Division Bench of this Court passed in National
Insurance Co. Ltd., -Vs- T.A.Nicholas and two others reported in 2009 (1) TN MAC
373. In that case, 22 years old Engineering student suffered grevious injuries
in the right leg. For loss of earning capacity, the Tribunal fixed the notional
income of Rs.10,000/- per month and the same was affirmed by the Division Bench
of this Court. Relying upon the said Judgement, in fact, the learned counsel
pleaded for enhancement.
14. Heard the learned counsel for the appellant and the respondents.
INCOME:-
15. It is not in dispute, the deceased was a final year student in
Automobile Engineering. In fact, the said fact was proved by PW-3 and the
letter given by the college Principal, Exhibit-P-6 and Exhibit P-7 and Exhibit
P-8. To arrive at the income, the Tribunal gave its reasoning in paragraph 10
of the award and the same is extracted as follows:-
”The deceased Ragavendran being an Engineering college student at the
time of accident he was not earning any income at that time. But as an
Engineering college student he has got the latent ability, talent and potential
to earn substantially in future as an Engineering student soon after the
completion of his course. Though there is no concrete evidence to prove his
monthly income and though he was not earning at the time of the accident.
Considering that he was studying a professional course and as a would be
engineer he would have great prospect to earn substantially, this Tribunal feels
that it would be just and fair compensation if the monthly income of the
deceased is fixed at Rs.4,500/- p.m.”
16. The aforesaid reasoning given by the Tribunal would show that the
prospects of the deceased could be more in case of his completion of the
Engineering course. However, the Tribunal did not take into the future
prospects of the deceased in proper manner. The future prospects of an Engineer
is more compared to other fields. The Engineers are more in demand in any part
of the world. In this electronic era, the service of the Engineers are more
required. In a number of Judgements, the Hon’ble Supreme Court as well as this
Court, held that arriving at income, the future prospects of the deceased should
be taken into consideration.
17. In Bijoy Kumar Durga -Vs- Bidya Dhar Dutta and others reported in
(2006) 3 SCC 242, while arriving at loss of income, it was held by the Hon’ble
Supreme Court that the future prospects has to be considered. In a recent
Judgement passed in R.K.Mallik and another -Vs- Kiran Pal and another reported
in 2009 (8) Scale 451, the Supreme Court while awarding compensation to the
parents of the death of school children, held that:
”It is well settled legal principles that in addition to awarding
the compensation for pecuniary losses, the compensation must also be granted
with regard to the future prospects of the children. It is incumbent upon the
Court to consider the said aspect while awarding the compensation”.
18. In the aforesaid R.K.Malik’s case, the Hon’ble Supreme Court took
into consideration, the earlier decision passed by the Apex Court passed in
General Manager, Kerala, State Road Transport Corporation, Trivandrum -Vs-
Susamma Thomas and others reported in (1994) 2 SCC 176, Sarala Dixit (Smt.) and
another -Vs- Balwant Yadav and others reported in (1996) 3 SCC 179, Latha
Wadhva and others -Vs- State of Bihar and others reported in (2001) 8 SCC 197
and held that the future prospects of the deceased is one of the vital aspects
to be considered by the Tribunal, while arriving at the loss of income. In the
said case, for the death of school children, the Tribunal awarded Rs.1,55,000/-
to the dependents of the children between the age group of 10 to 15 years and
Rs.1,65,000/- between 15 to 18 years and Rs.1,30,000/- to Rs.1,31,000/- for the
death of three children below 10 years. On appeal, the High Court enhanced the
compensation in all cases by Rs.75,000/-. On appeal by the claimants, the
Hon’ble Supreme Court awarded a sum of Rs.75,000/- more as additional
compensation for future prospects of the children. In arriving at the decision,
the Hon’ble Supreme Court in the said case, elaborately dealt with the cases
already decided by the Hon’ble Supreme Court in detail.
19. As far as this case is considered to proper reasoning was given by
the Tribunal to arrive at monthly income of the deceased at Rs.4,500/-. Even in
these days, a coolie is considered to be earning about Rs.3,000/- to Rs.5,000/-.
The automobile Engineer’s prospects is more when there are more automobile
industries in this part of India.
20. The Judgement of the Division Bench of this Court passed in National
Insurance Co. Ltd., -Vs- T.A.Nicholas and two others reported in 2009 (1) TN MAC
373, relied on by Mr.K.Mahendran, the learned counsel for the claimant, spoke
about the notional income at Rs.10,000/- per month by the Tribunal, which was
confirmed in appeal by this Court. In paragraph 8 of the said Judgement, it has
been observed as follows:-
”We now come to the loss of his earning capacity or permanent disability.
There is no evidence for this except the statement of the claimant, PW-1. But
we do not think that it is an unreasonable figure, considering his
qualification. Therefore, we will accept the figure as fixed by the Tribunal
i.e., Rs.10,000/- per month”.
21. Based on the judgement and considering his position as student
studying final year BE (Automobile Engineer), this Court could fix the monthly
income of the deceased at Rs.10,000/-. There was no contra evidence before the
Tribunal to rebut the evidence adduced by the claimant. However, in the absence
of any appeal by the claimant, such an exorbitant amount need not be fixed.
Therefore, this Court fixes the monthly income of the deceased at Rs.7,000/- per
month. This exercise is being done by this Court, considering the facts and
circumstances of the case by invoking Order 41 Rule 33 of C.P.C.
22. The case relied on by the learned counsel for the appellant TATA AIG
General Insurance company Ltd., -Vs- Balakrishna Reddy and others reported in
2009 (1) TAN MAC 205 speaks about the death of Engineering college student, aged
about 19 years, wherein, composite negligence on the part of the car driver as
well as the deceased was arrived at and there was no reasoning given for fixing
the monthly income at Rs.3,000/- and it only confirmed the notional income
adopted by the Tribunal. It is also understood from the Judgement, the no
future prospects of the deceased was taken into consideration. The other
Judgement relied upon by the learned counsel for the appellant, Syed Basheer
Ahamed and others -Vs- Mohammed Jameel and another reported in (2009) 2 SCC
225, wherein a business man died in the accident and his monthly income was
fixed at Rs.7,000/- by the Tribunal and the same was reduced to Rs.4,000/- based
upon the entries in the current bank account of the deceased.
23. The case on hand is relating to the death of non-earning member,
namely, the final year B.E., (Automobile Engineering) student, whose future
prospects are more compared to a business man. In any event, the prospects of
an Engineering student cannot be compared with a business man especially when
there are more automobile industries in India.
24. As stated above, the prospects of the Engineering student is more
compared to any other field as found by this Court, the monthly income of the
deceased student is fixed at Rs.7,000/- per month.
DEDUCTION TOWARDS PERSONAL EXPENSES:
25. The learned counsel for the appellant assailed the Tribunal’s award
for non-deduction of 50% of income towards personal expenses as the deceased was
bachelor. The learned counsel for the appellant strenuously argued relying upon
the Judgement of the Hon’ble Supreme Court passed in Sarala Verma and others –
Vs- Delhi Transport Corporation and another reported in 2009 ACJ 1298. In that
case, the deceased was a scientist in Indian Council of Agricultural Research
(ICAR) earning a monthly salary of Rs.3,402/- and other benefits. While dealing
with deduction, the Hon’ble Supreme Court gave the following guidelines for
deduction towards personal and living expenses of the deceased. The paragraph
No. 14 and 15 of the Judgement are extracted as follows:-
”14. Though in some cases the deduction to be made towards personal and
living expenses is calculated on the basis of units indicated in Trilok
Chandra’s case, 1996 ACJ 831 (SC), the general practice is to apply standardized
deductions. Having considered several subsequent decisions of this Court, we
are of the view that where the deceased was married, the deduction towards
personal and living expenses of the deceased should be one-third (1/3rd ) where
the number of dependent family members is 2 to 3; one-fourth (1/4th ) where the
number of dependent family members is 4 to 6; and one-fifth (1/5th ) where the
number of the dependent family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents,
the deduction follows a different principle. In regard to bachelors, normally
50 per cent is deducted as personal and living expenses, because it is assumed
that a bachelor would tend to spend more on himself. Even otherwise, there is
also the possibility of his getting married in a short time, in which event the
contribution to the parent(s) and siblings is likely to be cut drastically.
Further, subject to evidence to the contrary, the father is likely to have his
own income and will not be considered as a dependant and the mother alone will
be considered as a dependant. In the absence of evidence to the contrary,
brothers and sisters will not be considered as dependants, because they will
either be independent and earning, or married, or be dependant on the father.
Thus even if the deceased is survived by parents and siblings, only the mother
would be considered to be a dependant and 50 per cent would be treated as the
personal and living expenses of the bachelor and 50 per cent as the contribution
to the family. However, where family of the bachelor is large and dependant on
the income of the deceased, as in a case where he has a widowed mother and large
number of younger non-earning sisters or brothers, his personal and living
expenses may be restricted to one-third and contribution to the family will be
taken as two-third”.
26. Relying upon the said Judgement, the learned counsel for the
appellant contended that the deceased in this case was a bachelor and 50% of the
income should be deducted towards his personal and living expenses, whereas the
Tribunal deducted only 1/3rd and hence contended that 50% should be deducted.
27. It has been held by a number of Judgements by the Hon’ble Supreme
Court that 1/3rd amount only has to be deducted towards personal income whereas
only in Sarala Verma and others -Vs- Delhi Transport Corporation and another
reported in (2009) 6 SCC 121 = 2009 ACJ 1298 and another Judgement in Syed
Basheer Ahamed and others -Vs- Mohammed Jameel and another reported in (2009) 2
SCC 225, 50% of the income was ordered to be deducted for the death of the
bachelor.
28. In a recent Supreme court Judgement passed in Oriental Insurance
Company Ltd., -Vs- Deo Patodi and others reported in 2009 (8) Scale 194, it has
been held that deduction of 1/3rd towards personal expenses is the ordinary rule
in India. (2004) 2 SCC 473 in Fakeerappa and another -Vs- Karnataka Cement Pipe
Factory and others, the Hon’ble Supreme Court deducted only 1/3rd towards
personal expenses from the income of the bachelor. Similar is the view taken by
the Hon’ble Supreme Court in Bilkish -Vs- United India Insurance Company Ltd.,
and another reported in (2008) 4 SCC 259, Bangalore Metropolitan Transport
Corporation -Vs- Sarojamma and another reported in (2008) 5 SCC 142.
29. The aforesaid ratio adopted by the Hon’ble Supreme Court in a
number of cases would demonstrate the normal rule in India is deduction of 1/3rd
amount from monthly income towards personal expenses. This case is not
exceptional case where 50% has to be deducted. There is no statutory mandate in
the Motor Vehicles Act that 50% should be deducted for the death of the
bachelor. On the other hand, in some of the cases, it is noticed that no amount
was deducted towards personal expenses. However, to strike a fine balance,
1/3rd deduction is the normal rule and the Tribunal rightly deducted 1/3rd
towards personal expenses and it does not warrant any interference by this
Court.
MULTIPLIER:
30. The learned counsel for the appellant submitted, taking into
consideration of the age of the mother, namely 43 years, the Tribunal adopted
multiplier of ’15’. The learned counsel relying upon the Judgement of Lakshmana
Iyer case, wherein it was held that ’10’ is the appropriate multiplier,
submitted that same multiplier has to be adopted in this case.
31. A perusal of the second schedule appended to the Motor Vehicles Act,
1988 would reveal that for the age of 22 years, the proper multiplier is ’17’
and for the age of 43 years, the multiplier is ’15’. In this case, the deceased
was aged about 22 years and the age of the mother was 43 years. The Tribunal
rightly took the age of the mother 43 years and adopted multiplier of ’15’ as
per the schedule and the same cannot be found fault with.
32. The Hon’ble Supreme Court in a number of Judgement held, the second
schedule appended to the Motor Vehicles Act should not ordinarily be deviated
from. In Abati Bezbaruah -Vs- Dy. Director General, Geological Survey of India
and another reported in (2003) 3 SCC 148, the Hon’ble Supreme Court held that
the second schedule should not ordinarily be deviated and in Rani Gupta and
others -Vs- United India Insurance Company Ltd., and others reported in 2009 (5)
Scale 439, it was held that the multiplier specified in the second schedule
should be taken as guideline and in National Insurance Company Ltd., -Vs- Smt.
Saroj and others reported in 2009 (8) Scale 188, it was held that appropriate
multiplier from the second schedule has to be followed. In U.P.Transport
Corporation v. Trilokchand reported in 1996 (4) SCC 362, the Hon’ble Supreme
Court observed that the second schedule suffers from many defects and it is only
guide not reckoner. However, as on date, the second schedule is appended to the
Motor Vehicles Act and forms part of the statue and no amendment has been made
or it has been deleted or set aside by any of the Courts.
33. As long as the second schedule remains with this Motor Vehicles Act,
the same, as far as possible has to be followed, depending upon the facts and
circumstances of the case.
34. In this case, no exceptional or extraordinary circumstances has been
made out by the appellant to deviate from the second schedule. Hence, the
second schedule was properly taken into consideration and suitable multiplier
was adopted by the Tribunal. Hence, the multiplier adopted by the Tribunal is
confirmed.
35. The learned counsel for the appellant found fault with the Tribunal
for awarding a sum of Rs.15,000/- for each of the parents towards loss of love
and affection and Rs.10,000/- for the loss of love and affection of the sister
stating that it is on the higher side. The facts of the case would reveal that
the family had one male child who was miserably lost in the accident. To put it
in nutshell, there is no male descending for the family. The time took away
the child mercilessly by the cruel accident and no amount of money could
compensate the loss of the child especially only a male child. The same cannot
be compensated any amount of money. Though, the amount given towards loss of
love and affection, namely Rs.40,000/- for three claimants, in the opinion of
this Court is very, low the amount awarded by the Tribunal is confirmed by
considering ”just compensation” under Section 168 of the Motor Vehicles Act
1988.
TAX DEDUCTION:
36. Though the tribunal did not deduct any amount towards deduction while
arriving at the compensation, the same is required to be considered by this
Court. In National Insurance Co. Ltd., v. Indira Srivastava and others reported
in (2008) 2 SCC 763, the Hon’ble Supreme Court held that the tax payable has to
be deducted from the compensation. The same principle was reiterated in
Oriental Insurance Co. Ltd., v. Ram Prasad Varma reported in 2009 (1) TNMAC 134.
Based on the above Judgments, 10% deduction has to be made from the loss of
income.
Rs.8,400 X 10
———–
100 = Rs.84,000/-
8,40,000-84,000 = Rs.7,56,000/-
Net loss of Income = Rs.7,56,000/-
37. The Tribunal rightly awarded interest at the rate of 7.5% and the
same is confirmed.
38. Hence, the award of the Tribunal is modified as follows:-
Loss of Income
(7000 x 12 x 15 x 2/3rd ) = Rs.8,40,000-Rs.84,000 = Rs.7,56,000
Net loss of Income = Rs.7,56,000/-
Loss of love and affection = Rs. 40,000/- Funeral Expenses = Rs. 5,000/- ----------------- Total = Rs.8,01,000/- ------------------
39. The award of Rs.5,85,000/- is enhanced to Rs.8,01,000, which will
bear interest at the rate of 7.5% per annum and the appeal is disposed of.
Consequently, connected Miscellaneous Petition is closed. No costs.
vsg
To
The Motor Accident Claims Tribunal
(Additional District and Sessions Judge, FTC No.3)
Madurai