BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.428 of 2008 and M.P.(MD) No.2 of 2008 The Branch Manager, The New India Assurance Company Ltd, 202,204, Mahatma Gandhi Road, Pondicherry-605 001. .. Appellant Vs. 1.A.Mary Imelda Jayaseeli 2.Minor X.Merlyn Regella 3.Minor X.Medlyn Marisha 4.K.S.Alphonse 5.Valarmathi 6.V.Tamilvanan (Minor Respondents 2&3 are through their Mother & natural Guardian A.Mary Imelda Jeyaseeli,the first respondent herein) .. Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Decree and Judgment dated 21.06.2007, passed in M.A.C.O.P.No.2003 of 2005, on the file of the Motor Accidents Claims Tribunal(Additional District Court, FTC-II)Madurai. !For Appellant ... Mr.G.Prabhu Rajadurai ^For Respondents ... M.Senthilkumar for R1 to R5 :JUDGMENT
This appeal is focussed as against the judgment and decree dated
21.06.2007, passed in M.A.C.O.P.No.2033 of 2005, by the Motor Accidents Claims
Tribunal -cum- Additional District Court, Fast Track Court-II, Madurai.
2. The challenge in this Civil Miscellaneous Appeal is relating to the
quantum of compensation awarded by the Tribunal, vide judgment dated 21.06.2007,
to the tune of Rs.13,92,320/-(Rupees Thirteen Lakhs Ninety Two Thousand Three
Hundred and Twenty only) on the following sub-heads:
(i) For Loss of Income - Rs.13,04,320.00 (ii)For Loss of Consortium for P.1 - Rs. 15,000.00 (iii)For Loss of Love and affection for P2 & P3 - Rs. 20,000.00 (iv) For Loss of Love and affection for P.1 - Rs. 15,000.00 (v) for Loss of Love and affection for P4 & P5 - Rs. 10,000.00 (vi)For Loss of Estate - Rs. 25,000.00 (vii)For Funeral Expenses - Rs. 3,000.00 -------------- Total- Rs.13,92,320.00 --------------
3.The challenge in this appeal is relating to the quantum of compensation
awarded by the Tribunal on the main ground that the Tribunal has chosen wrongly
the multiplier 16, even though the deceased was 40 years old; the monthly
income of the deceased as assessed by the Tribunal in a sum of Rs.10,190/- is
also not correct.
4. The point for consideration is as to whether the Tribunal awarded ‘just
compensation’?
5.Heard both sides.
6.The learned counsel for the Insurance Company drawing the attention of
this Court to the salary particulars of the deceased, would develop his
arguments that the Tribunal had not excluded certain items from the purview of
calculation and according to him, a sum of Rs.440/-p.m awarded towards Personal
Development Allowance, should have been excluded from assessing the
compensation as such amount was only for the purpose of enabling the deceased to
improve himself for his consequential increased efficiency at work.
7.Whereas the learned counsel for the claimants claimants placing
reliance on the evidence adduced relating to future prospects of the deceased,
would advance his argument that the Tribunal had not considered the future
prospects of the deceased and the compensation should be much more than what
was awarded by the Tribunal.
8. In this factual matrix, it is just and necessary to analyse the salary
certificate. The learned counsel on both sides relied on the copy of the
salary certificate and there is no dispute regarding that. As such I would
like to extract the relevant portion of the Salary Certificate so produced by
them as under:
Basic Salary Rs.3,825/-
Dearness Allowance Rs.1,650/-
House Rent Allowance Rs.2,160/- Special Allowance Rs. 635/- Education Assistance Rs. 500/- Conveyance Assistance Rs. 880/- Washing Allowance Rs. 100/- Personal Development Allowance Rs. 440/- Medical Allowance Rs.4,924/- Leave Travel Concession Rs.5,700/- ---------- Total Rs.10,190/- ----------
9. From the above sub-heads, it is clear that a sum of Rs.880/- p.m was
given by the employer towards conveyance assistance and a sum of Rs.100/- was
given towards washing allowance. Obviously, the amounts given under the
aforesaid sub-heads never can be taken as income of the deceased and that
should be deleted. Relating to other sub-heads, such as, House Rent Allowance,
Special Allowance, Educational Assistance, I am of the considered opinion that
those are all should be treated as income and there could be no second thought
over it. Regarding the medical allowance and Leave Travel Concession, those
amounts were paid only annually and that also should be taken while assessing
the annual income of the deceased.
10. The contention of the learned counsel for the Insurance Company that
Personal Development Allowance of Rs.440/- should not be treated as his income
is neither here nor there. Whatever be the sub-head under which such allowance
was paid, it was his income only which he was getting along with his pay packet
and virtually while deducting 1/3rd of the income towards deceased’s personal
expenses had he been alive automatically that some would get merged into it. It
would be unjust if separately a sum of Rs.440/- is excluded and once again
1/3rd amount also is deducted from the remaining amount. As such, the sum of
Rs.440/- cannot be excluded from computing the monthly income of the deceased.
The calculation of the annual income of the deceased would come to Rs.1,21,144/-
(Rupees One Lakh Twenty One Thousand One Hundred and Forty Four only)
[Rs.1,10,520/- (Rs.9,210X12) + Rs.4,924/- (Medical Allowance) + Rs.5,700/-
(Leave Travel Concession)] and after deducting 1/3rd amount towards the
deceased’s expenditure which he would have incurred for maintaining himself had
he been alive, the annual dependency comes to Rs.80,763/- (Rupees Eighty
Thousand Seven Hundred and Sixty Three only).
11.The learned Counsel for the Insurance Company would submit that
multiplier 16 is on the higher side. At this juncture, my mind is redolent with
the following decisions of the Honourable Apex Court:
(i) U.P.State Road Transport Corporation and others v. Trilok Chandra and
others reported in (1996) 4 Supreme Court Cases 362.
(ii) The Managing Director, TNSTC Ltd, v. K.I.Bindu and others reported in
2005 (2) TNMAC (SC) 350.
(iii) Hafizun Begum v. Md.Ikram Heque and others reported in 2007 (4) CTC
335.
12. From the perusal of the aforesaid decisions, it is very clear that
choosing the multiplier will differ from case to case and there should not be
any hard and fast rule. Only by taking into account the age of the deceased the
multiplier cannot be chosen. Various factors as highlighted supra in those
decisions should be considered and I need not dilate on that.
13. Here the wife and the two minor children are the principal claimants
along with the parents of the deceased. Necessarily the multiplier 16 has to be
chosen otherwise significant compensation cannot be arrived at, which would be
of some soccur to the principal claimants.I am fully aware of the fact that
multiplier found set out in the Second Schedule appended to the Motor Vehicles
Act, need not be followed in all cases, but in this case multiplier 16, appears
to be correct for the reasons adverted supra.
14. The learned counsel for the appellant correctly highlighted that
after awarding a sum of Rs.15,000/- towards loss of consortium for the first
petitioner, the Tribunal was not justified in awarding a sum of Rs.15,000/-
towards loss of Love and Affection for the same first petitioner and hence it
has to be deleted. Towards loss of Love and Affection for the minor children,
a sum of Rs.20,000/- was awarded by the Tribunal which could be confirmed. A
sum of Rs.10,000/- awarded by the Tribunal under the sub-head ‘loss of love and
affection’ towards the parents, could also be confirmed. However, the Tribunal
without any evidence, awarded a sum of Rs.25,000/- under the caption, ‘loss of
estate’. It is not that for the sake of awarding compensation under that
caption, simply some amount has to be awarded and that has to be deleted in the
absence of evidence in that regard. Under the sub-head ‘funeral expenses’ a sum
of Rs.3,000/- was awarded which warrants no interference. Accordingly, the
following formula emerges:
(i) For Loss of Income (Rs.80,763/-x16) -Rs. 12,92,208.00 (ii)For Loss of Consortium for P.1 - Rs. 15,000.00 (iii)For Loss of Love and affection for P2 & P3 - Rs. 20,000.00 (iv) For Loss of Love and affection for P4 & P5 - Rs. 10,000.00 (vi)For Funeral Expenses - Rs. 3,000.00 -------------- Total-Rs.13,40,208.00 --------------
15.In the result, the Civil Miscellaneous Appeal is partly allowed and the
total compensation is reduced from Rs.13,92,320/- (Rupees Thirteen Lakhs Ninety
Two Thousand Three Hundred and Twenty only) to Rs.13,40,208/- (Rupees Thirteen
Lakhs Forty Thousand Two Hundred and Eight only) and the rate of interest at the
rate of 7.5% arrived at by the Tribunal is confirmed. The rest of the award of
the Tribunal shall hold good. Consequently, connected Miscellaneous Petition is
closed. No costs.
rsb/gsr
TO
The Motor Accidents Claims Tribunal
(Additional District Court)
FTC-II,
Madurai.