BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/02/2010
CORAM
THE HONOURABLE MRs.JUSTICE PRABHA SRIDEVAN
and
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
Civil Miscellaneous Appeal(MD) No.450 of 2003
and
C.M.P.No.3872 of 2003
1.T.Pragadeeswari
2.The Regional Manager,
United India Insurance Co.Ltd.,
Thanjavur. .. Appellants
vs
1.T.Valarmathi
2.T.Muruganantham
3.T.Muruga Prakash
4.T.Ponsigh
5.S.Velliammal
6.Sekar
7.The Regional Manager,
New India Assurance Co.Ltd.,
85/P, Market Road,
Thanjavur.
[4th respondent minor declared as
major and mother discharged from
Guardianship as per the order of
this Court dated 26.6.2007 made in
M.P.(MD)No.1 of 2007] .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988 Clause 15 of the Letters Patent against the Judgment and Decree dated
7.11.2001 made in MACT OP No.894 of 1996 by the Motor Accident Claims Tribunal
(Principal District Judge), Thanjavur.
!For appellants ... Mr.G.Prabhu Rajadurai
^For respondents 1 to 5 ... Mr.G.Sridharan
for M/s.R.Palaniappan
For 6th respondent ... No appearance
For 7th respondent ... Mr.K.Neelamegam
for M/s.M.Ramdhas
:JUDGMENT
(Judgment of the Court was delivered by PRABHA SRIDEVAN, J)
The insurance company and the owner of the bus involved in the accident
have filed this Appeal against the award of Rs.17,86,000/- as compensation for
the death of one Thirugnanam.
2. The said Thirugnanam was travelling as a pillion rider in the motor
cycle belonging to the sixth respondent herein. At that time, a bus belonging
to the first appellant and insured by the second appellant was driven rashly and
negligently and it ran over the deceased Thirugnanam. He sustained grievous
injuries. He was admitted in the Thanjavur Hospital and he was given treatment
for five days but he succumbed to the injuries. The deceased was employed as
the Deputy Manager in the State Bank of India, Orathanadu Branch and he was
drawing a salary of Rs.14,800.41 per month. He was 49 years old at the time of
the accident. He was a Scale-III Officer. According to the claimants, if he
was alive, he would have become Scale-IV Officer and would have become Scale-V
Officer at the time of superannuation and his basic pay and allowance would be
more than Rs.30,000/- per month. Therefore, according to them, they are
entitled to a sum of Rs.40,00,000/- as compensation.
3. The Tribunal found that the driver of the vehicle involved was guilty
of rash and negligent driving and quantified the compensation as Rs.17,86,000/-.
The Tribunal took note of the salary certificate, which is Ex.P.9, which was
spoken to by PW.6, a bank employee, and without any other discussion, awarded a
sum of Rs.17,86,000/-.
4. Learned counsel appearing for the appellants submitted that the
deceased was 49 years old at the time of accident and 8 years of service alone
was left before reaching the age of superannuation. He submitted that the
Supreme Court had held that for future increase, no amount could be taken into
account if the deceased is above 50 years and since this is a case where the
deceased was marginally short of 50 years of age, no increase could be given for
future prospects. He also submitted that there is evidence to show that the son
of the deceased was given compassionate employment and was earning a sum of
Rs.4,000/- per month. Therefore, he submitted that the compensation must be
reduced.
5. Learned counsel for the claimants on the other hand submitted that even
after the age of superannuation, the deceased would have been gainfully engaged
in some post-retirement operation, thereby, earning not less than Rs.10,000/-
per month. He also submitted that there is evidence to show that, had the
deceased lived till the age of superannuation, he would earn Rs.30,000/- per
month and hence, some increase should be given with regard to the monthly income
taking note of the future prospects.
6. Learned counsel for the claimants also submitted that in Smt.Sarla
Verma & Others v. Delhi Transport Corporation and another [2009(2) TN MAC
1(SC)], it has been held that, 30% increase should be given towards future
prospects, for persons between the age group of 40 and 50 years and since in
this case, the deceased was 49 years old, 30% increase should be given. 7.
Reliance was also placed on the judgment in K.Perumal & another v. Tmt.
Kamalabai [2004 (2) TN MAC (DB) 535, where this Court had taken into account the
contribution that might have been made by the deceased to the family even after
the retirement.
8. we have considered the facts and materials before us and also the
judgment cited before us.
9. In Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others [2008
(2) TN MAC 170 (SC)], the Supreme Court had observed that the High Court had
lost sight of the fact that the benefits which the claimant receives on account
of the death or injury have to be duly considered while fixing the compensation.
In the same order, the Supreme Court extracted the following paragraph from
Helen C. Rebello V. Maharashtra S.R.T.C. [1999 (1) SCC 90]:-
“32. …Thus under the present Act, whatever pecuniary advantage is
received by the claimant, from whatever source, would only mean which comes to
the claimant on account of the accidental death and not other forms of death…
33. Thus, it would not include that which the claimant receives on account
of other forms of deaths, which he would have received even apart from
accidental death. Thus, such pecuniary advantage would have no correlation to
the accidental death for which Compensation is computed. Any amount received or
receivable not only on account of the accidental death but that which would have
come to the claimant even otherwise, would not be construed to be the “pecuniary
advantage”, liable for deduction…”
10. In the National Insurance Co.Ltd., Madurai v. Sujaya C.Moorthy &
Others [2004 (1) TN MAC (DB) 276, a Divison Bench of this Court had held in
paragraph 39 as follows:
“39. … Ex.A.4 is the salary certificate issued by the senior Manager of
Canara Bank which would show that the deceased was drawing a salary of
Rs.7,248/- per month including allowances, besides he is entitled to enjoy the
perquisites of furnished quarters for the value of Rs.1,870/- per month, free
car allowance of Rs.630/- per month and medical care at Rs.1,000/- per annum.
For free quarters, free car and medical care which the deceased is entitled to
if he continued in service, as already pointed out, he would have earned
Rs.6,09,000/-. Therefore, in all he would have earned Rs.6,09,000/- during the
said period of seven years…”
11. In National Insurance Company Ltd., V. Indira Srivastava & others
[2008 (1) TN MAC 166 (SC) 166], the Supreme Court has held in paragraph 17 as
follows:-
“17. The amounts, therefore, which were required to be paid to the
deceased by his employer by way of perks, should be included for computation of
his monthly income as that would have been added to his monthly income by way of
contribution to the family as contra-distinguished to the ones which were for
his benefit. We may, however, hasten to add that from the said amount of
income, the statutory amount of tax payable thereupon must be deducted.”
12. In Smt.Sarla Verma & others v. Delhi Transport Corporation & another
[2009 (2) TN MAC 1 (SC)], the Supreme Court has held as follows:-
“8. … Just compensation is adequate compensation which is fair and
equitable, on the facts and circumstances of the case, to make good the loss
suffered as a result of the wrong, as far as money can do so, by applying the
well settled principles relating to award of compensation. It is not intended
to be a bonanza, largesse or source of profit. Assessment of compensation
though involving certain hypothetical considerations, should nevertheless be
objective. Justice and justness emanate from equality in treatment, consistency
and thoroughness in adjudication, and fairness and uniformity in the decision
making process and decisions….
9. Basically only three facts need to be established by the claimants for
assessing compensation in the case of death: (a) age of the deceased; (b)
income of the deceased; and (c)the number of dependents. The issues to be
determined by the Tribunal to arrive at the Loss of Dependency are: (i)
additions/deductions to be made for arriving at the income; (ii) the deduction
to be made towards the Personal Living Expenses of the deceased; and (iii) the
multiplier to be applied with reference of the age of the deceased. If these
determinants are standardized, there will be uniformity and consistency in the
decisions… To have uniformity and consistency, Tribunals should determine
compensation in cases of death, by the following well settled steps.
Step 1 (Ascertaining the multiplicand):
The income of the deceased per annum should be determined. Out of the
said income a deduction should be made in regard to the amount which the
deceased would have spent on himself by way of Personal and Living Expenses.
The balance, which is considered to be the contribution to the dependent family,
constitutes the multiplicand.
Step 2 (Ascertaining the multiplier)
Having regard to the age of the deceased and period of active career, the
appropriate multiplier should be selected. This does not mean ascertaining the
number of years he would have lived or worked but for the accident. Having
regard to several imponderables in life and economic factors, a table of
multipliers with reference to the age has been identified by this Court. The
multiplier should be chosen from the said table with reference to the age of the
deceased.
Step 3 (Actual calculation):
The annual contribution to the family (multiplicand) when multiplied by
such multiplier gives the ‘Loss of Dependency’ to the family….
11. In Susamma Thomas, this Court increased the income by nearly 100%, in
Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the
income was increased by a mere 7%. In view of imponderables and uncertainties,
we are in favour of adopting as a rule of thumb, an addition of 50% of actual
salary to the actual salary income of the deceased towards future prospects
where the deceased had a permanent job and was below 40 years.[Where the annual
income is in the taxable range, the words ‘actual salary’ should be read as
‘actual salary less tax’]. The additional should be only 30% if the age of the
deceased was 40 to 50 years. There should be no addition, where the age of
deceased is more than 50 years. Though the evidence may indicate a different
percentage of increase, it is necessary to standardize the addition to avoid
different yardsticks being applied or different methods of calculations being
adopted. Where the deceased was self-employed or was on a fixed salary (without
provision for annual increments etc.,), the Courts will usually take only the
actual income at the time of death. A departure therefrom should be made only
in rare and exceptional cases involving special circumstances.
12. … Therefore, it became necessary to standardize the deductions to be
made under the head of Personal and Living Expenses of the deceased. This lead
to the practice of deducting towards Personal and Living Expenses of the
deceased, one-third of the income if the deceased was a married, and one-half
(50%) of the income if the deceased was a bachelor. This practice was evolved
out of experience, logic and convenience. In fact one-third deduction, got
statutory recognition under Second Schedule to the Act, in respect of claims
under Section 163-A of the Motor Vehicles Act, 1988 (‘MV Act’ for short).
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,
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 (th) where the number of dependant family members
is 4 to 6, and one-fifth (1/5th) where the number of dependent family members
exceed six.”
13. We have weighed the rival submissions made by the learned counsel on
the side of the insurance company and on the side of the claimants with regard
to possible increase that should be applied to the income that was received by
the deceased at the time of accident. In this case, there is evidence to show
that the son is receiving a sum of Rs.4,000/- per month upon the compassionate
employment. We cannot brush aside the submission made on behalf of the claimants
that the Supreme Court has fixed 30% as increase towards future prospects that
should be applied for the deceased persons who are in between the age group of
40 and 50 years. We also take note of the fact that the deceased in this case
was just marginally short of 50 years but if we balance the income received by
the son after being employed on compassionate ground, we feel that this amount
balances out the other and therefore, we fix the monthly income at Rs.15,000/-,
out of which, Rs.10,000/- will be the contribution to the family. Hence, the
annual dependency would be Rs.1,20,000/-. Since the deceased was 49 years, we
apply 10 as the multiplier and the loss would be Rs.12,00,000/-.
14. However, we are unable to accept the submission of the learned
counsel for the appellants relying on judgment in K.Perumal’s case supra, for
the possible earnings in future, that the deceased would be earning a sum of
Rs.10,000/- per month if he would be alive. We must remember that the accident
took place in the year 1996. Therefore, we fix a sum of Rs.5,000/- per month as
the possible earning after deducting the personal expenses and adopting the
multiplier 2, the amount comes to Rs.1,20,000/- [5,000 X 12 = 60,000 X 2 =
1,20,000].
Therefore, total pecuniary loss = Rs.13,20,000
[Rs.12,00,000 + 1,20,000]
Loss of consortium to wife = Rs.35,000
Loss of love & affection
towards 3 children 10,000 X 3 = Rs.30,000
Loss of love & affection
towards mother = Rs.10,000
Funeral expenses = Rs.5,000
------------
Total compensation = Rs.14,00,000
============
15. Therefore, the compensation is reduced to Rs.14,00,000/- from
Rs.17,86,000/-, awarded by the Tribunal. Out of this Rs.14,00,000/-, the wife
of the deceased is entitled to Rs.6,00,000/-, mother of the deceased is entitled
to Rs.50,000/-, the second respondent herein is entitled to Rs.1,50,000/- and
the respondents 3 and 4 are entitled to Rs.3,00,000/- each. Coming to the rate
of interest, the interest @ 9% awarded by the Tribunal is reasonable and we are
not inclined to interfere with it.
16. With the above modification, the Civil Miscellaneous Appeal is
allowed. Connected Miscellaneous Petition is closed. No costs.
asvm
To
The Motor Accident Claims Tribunal,
(Principal District Judge),
Thanjavur.