BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/03/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A(MD)No.1449 of 2004 and M.P.(MD)Nos. 1 and 2 of 2009 1. V.Sornam 2. V.Samuthirakani 3. V.Ramar 4. V.Kalarani ... Appellants/Claimants vs Tamil Nadu State Transport Corporation (Madurai Division.II) Limited, Vannarpettai, Tirunelveli - 627 003 through its Managing Director. ... Respondents/Respondents (Second respondent remained ex parte and third respondent was exonerated before the Tribunal) PRAYER Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated 27.11.2003 made in M.C.O.P.No.1660 of 2001, on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Tirunelveli. !For Appellants ... Mr.T.Selvakumaran ^For Respondent ... Mr.N.Asaithambi * * * :JUDGMENT
The appellants are the claimants in M.C.O.P.No.1660 of 2001, on the file
of the Motor Accidents Claims Tribunal (Principal District Judge), Tirunelveli,
claiming a compensation of Rs. 8 lakhs. They are the legal heirs of the
deceased Mr.Velayutham, who died in the accident that took place on 13.11.2001,
caused by the driver of the bus owned by the respondent/corporation. The
details of the accident are not necessary as the finding of the Tribunal that
the driver of the respondent/corporation was responsible for the accident was
not questioned by the respondent/corporation. The issue is relating to the
quantum of compensation that was awarded to the appellants. In the order, dated
27.11.2008, the Tribunal has awarded a sum of Rs.1,96,000/- as compensation
under the following heads:
1. for loss of income - Rs.1,84,800/-
2. for loss of consortium
to the first appellant - Rs. 10,000/-
3. for funeral expenses - Rs. 1,200/-
----------------
Total - Rs.1,96,000/-
----------------
The appeal is filed seeking enhancement.
2. The learned counsel for the appellants submit that the Tribunal had
committed an error in taking 55 as the age of the deceased at the time of
accident. The learned counsel for the appellants submits that since as per
Ex.P5, the Post-mortem Certificate, the age of the deceased was noted as 50
years, the same should have been taken as the age of the deceased.
3. On the other hand, the learned counsel for the respondent submits that
the Tribunal has correctly taken the age of the deceased as 55 years based on
Ex.P8. Ex.P8 is the correspondence between the employer under whom the deceased
was employed and the Life Insurance Corporation of India, regarding the payment
of death benefits to the deceased.
4. I have considered the submissions made on either side and perused the
records.
5. The deceased was employed in South India Mines and Minerals Industries
Limited, Sankar Nagar, Tirunelveli District. Ex.P8 contains series of four
letters and those letters are (1) letter dated 13.12.2001 addressed by the said
company to the Life Insurance Corporation of India Limited (ii) letter dated
18.01.2002 addressed by the Life Insurance Corporation of India Limited in reply
to the said company (iii) letter dated 22.01.2002 addressed by the said company
to the Life Insurance Corporation of India Limited and (iv) the form of
discharge for payment of benefits under the policy issued by Life Insurance
Corporation of India Limited.
6. The letter dated 13.2.2001 of Life Insurance Corporation of India
Limited, is as follows:
The South India Mines and Mineral Industries Limited,
Sankar Nagar.
F.203/660/2001-2002
Manager(P&Gs),
Life Insurance Corporation of India,
Tirunelveli Divisional Office,
‘Jeevan Prakash’,
Punithavathiar Street,
Palayamkottai,
TIRUNEVELI – 627 002.
Sub: Settlement of Gratuity in respect of
S.Velayutham – Expired on 13.11.2001.
Rer: Group Gratuity(Cash Accumulation)Scheme,
File No.T001193
……..
We are to report that the following employee expired on 13.11.2001. Kindly
arrange for payment of Gratuity to the fund at your earliest to enable the trust
to make the payment to the deceased employee’s family.
1. Name of the employee : S.VELAYUTHAM
S/o.Sudalaimuthu
2. Serial No. in the list : 10193
3. Date of birth : 21.07.1946
4. Date of joining service : 01.07.1982
5. Date of expiry : 13.11.2001
6. No. of years of service : 19 years
7. Last pay drawn(Basic+
D.A) : Basic pay : Rs. 68.830
D.A. : Rs. 143.580
............
: 212.410
per day
8. Gratuity payable : Rs.60,537/-
for The South India Mines
and Mineral Industries
Limited.,
Executive Director.
7. The reply dated 18.01.2002 from Life Insurance Corporation of India
Limited to the said company is as follows:
LIFE INSURANCE CORPORATION OF INDIA
TIRUNELVELI DIVISIONAL OFFICE
Telephone : 574729 ” Jeevan Prakash”,
Punithavathiar Street,
Tiruneveli – 627 002.
Ref: P & G.S./File No.1193
Master Policy No.33086 Dated: 18.01.02
Registered Post.
The General Manager,
South India Mines and Mineral
Industries Limited,
315, Narayana Nagar,
Sankar Nagar 627 307.
Dear Sir/s,
Ref: Death Benefit- Refund of Group Gratuity Life Assurance Scheme.
Sri. S.Velautham, M.No. With reference to your letter dated enclosing the Discharge Form,
we send herewith our Cheque No.140164, dated 19.01.2002 for Rs.70095/-(Rupees
Seventy thousand and ninety five only) drawn on CB Palayamkottai Branch towards
the settlement of the same.
Kindly acknowledge receipt. Yours faithfully,
Kindly return the discharge
form duly signed and
witnessed. p.SR./Divisional Manager
Encl: One Cheque and one DI
CC to Accounts Department
8. The letter, dated 22.01.2002 of the company to the Life Insurance
Corporation of India Limited acknowledges the receipt of cheque for
Rs.7000.95/-along with the letter, dated 18.01.2002 of Life Insurance
Corporation of India Limited , payable under Group Gratuity Life Assurance
Scheme. The form of discharge for payment of benefits is issued by the Life
Insurance Corporation of India Limited. The aforesaid documents make it very
clear that the age of the deceased was 55 years at the time of accident as the
date of birth of the deceased was 21.07.1946,while the date of accident was
13.11.2001.
9. Further P.W.2, Assistant Manager of South India Mines and Minerals
Industries Limited, Tirunelveli deposed that the deceased had only three more
years of service had he not died in the accident. The following statement in
the Chief examination of P.W.2 is extracted hereunder:
” mth; 58 taJ tiu mth; vA;fs; epWtdj;jpy; gzpghpayhk;”
In cross-examination of P.w.2 he stated as follows:
”nwe;J Bghd Btyhajk; vA;fsplk; mspj;Js;s gpwe;j Bjjp tpgug;go mth; nd;Dk; 3
Mz;Lfs; kl;LBk vA;fs; epWtdj;jpy; gzpghpa naYk;.”
10. Therefore, I do not find any infirmity in the order of the Tribunal
taking the age of the deceased as 55 years at the time of accident.
11. Secondly, the learned counsel for the appellants submits that the
Tribunal had committed an error in taking the monthly earnings of the deceased
as Rs.2100/-. The learned counsel further submits that as per Ex.P6 to Ex.P8,
the deceased was paid Rs.269.895/- per day as his wages. But, the Tribunal had
committed an error in not taking into account the wages as disclosed in Ex.P6 to
Ex.P8, on the ground that it is not known whether the said amount of
Rs.269.895/- is the salary for a day or the salary for a month. The learned
counsel further submits that Ex.P8 being the correspondence between the company
and the Life Insurance Corporation of India Limited, the Tribunal should have
taken the salary as noted in Ex.P6 to Ex.P8.
12. On the other hand, the learned counsel for the respondent/corporation
submits that since the salary register was not produced, the Tribunal was
correct in taking Rs.2,100/- as the salary of the deceased person and no fault
could be found on the Tribunal for not taking Rs.269.895/- as daily wages of
the deceased.
13. I have considered the submissions made on either side and perused the
records.
14. I am in agreement with the submissions made by the learned counsel
for the appellants that while the Tribunal acted based on Ex.P8 in determining
the age of the deceased at 55 years, the Tribunal is not correct in refusing to
take the wages as disclosed in Ex.P8. As per Ex.P8, the gratuity was paid based
on the basic pay and Dearness Allowance paid to the deceased for his 19 years of
service rendered with the company under the Group Gratuity Life Assurance
Scheme. Ex.P6 is the salary certificate. As per Ex.P6, the details of the
salary paid to the deceased is as follows:
THE SOUTH INDIA MINES&MINERAL INDUSTRIES LTD Grams:SIMMINDS
(FORMERLY AGRICULTURAL FARMS LIMITED PHONE:0462 300344
(LIMESTONE-MINE OWNERS) FAX:0462 300113
…………………………………..
Regd Office:315, Narayana Nagar,Sankar TNGSTNo. 5569913
Nagar,P.O Dt: 1.4.1995
Talaiyuthu R.S.,Tirunelveli District Our Ref.No.
627 357.
3rd April 2003
TO WHOMSOEVER IT MAY CONCERN
This is to certify that our employee late S.Velayutham,S/o. Sudalaimuthu,
Token No.548, was drawing daily wages at the rate of Rs.269.895 per day and paid
monthly, during October2001 as furnished below:
Rs.
Basic Pay 68.827
Dearness Allowance 143.581
House Rent Allowance 4.808
Special Benefits 52.679
-------
Total 269.895 per
day
He has been in continuous service of our compny since 1.7.1982.
This certificate is issued for the purpose of claiming accident and other
death benefits of the deceased employee.
For The South India Mines and
Mineral Industries Ltd.,
Executive Director.
15. Ex.P7 is the identity card given to the deceased and in the same also
appears the rate of wages paid to the deceased. Ex.P8 is the correspondence
between the company and the Life Insurance Corporation of India Limited and the
details were already extracted above. Hence, it is very clear that the deceased
was earning Rs.269.895/- as daily wages. But, the Tribunal refused to take
Rs.269.895/- as the daily wages on the ground that the Tribunal was not able to
come to a conclusion as to whether the said amount of Rs.269.895/- represents
daily wages or monthly wages. The following finding of the Tribunal is
extracted hereunder in this regard:
BkYk; k.rh.2 Mf rPdpthrfk; vd;gth; rhl;rpahf tprhhpf;fgl;ljpy; mth; jdJ
rhl;rpaj;jpy; nwe;J BghdtUf;F tpgj;J fhyj;jpy’;U.269.89 igrh tUkhdk; vd;Wk;
mjw;F jhA;fs; bfhLj;j rhd;wpjH; k.rh.M6 vd;Wk; nwe;J Bghdthpd; milahs \ml;il
k.rh.M7 vd;Wk;, jA;fs; epWtdj;jpw;Fk; vy;.Irpf;Fk; nilBaahd fojA;fspd; efy;fs;
k.rh.M.8 thpir vd;Wk; rhd;whtzA;fs; jhf;fy; bra;ag;gl;Ls;sd. Bkw;fz;l
rhd;whtzA;fis ghh;;f;Fk;BghJ nwe;J Bghdth; jpd Typahf Btiy ghh;j;J ehs; xd;Wf;F
mog;gil rk;gsk; 68.82 igrh vd;Wk; o.v 143.58 igrh vd;Wk;, tPl;L trjp mytd;!;
4.08 igrh vd;Wk; rpwg;g[ tHA;fy; 52.67 igrh vd;W Fwpg;gplg;gl;Ls;sjpy;mJ
khjj;jpw;fh my;yJ ehs; x;d;Wf;fh vd;W Bkw;fz;l rhd;whtzA;fspy; bjspthf tpsf;fk;
vJt[k; ny;iy. ehs; Typahf tHA;fg;gLk; vd;W Fwpg;gplg;gl;Ls;sjpy; Bkw;fz;l
tpguA;’fis ghh;f;Fk;BghJ mJ ehs;Typahf bjhpatpy;iy. mth; rk;gsk; bgw;w fzf;F
g[j;jfA;fs; Bghd;w ek;gj;jFe;j MtzA;fs; vJt[k; jhf;fy; bra;atpy;iy.
16. The aforesaid reasoning is not acceptable to me. When the Tribunal
acted on the basis of Ex.P8 for determining the age of the deceased at the time
of accident, the Tribunal should have also taken the wage details as found in
Ex.P8. Further, this document is between the company and the Life Insurance
Corporation of India Limited. Furthermore, 5% of the earnings of the deceased
was deducted towards the said scheme as per the evidence of P.W.2. In this
regard, the evidence of P.W.2 is extracted hereunder.
”vA;fs; epWtdj;jpy; gzp bra;j Btyhajk; vd;gtiu FUg; nd;Rud;;!;
jpl;lj;jpy; Brh;e;J mtuJ tUkhdj;jpy; 5%%rjtPjk; tPjk; khjhkhjk; gpoj;J fl;o
nUe;Bjhk;. mth; nwe;j gpd;gmj;jpl;lj;jpd; fPH; mtUf;F mtuJ FLk;gj;jhUf;F fpilf;f
Btz;oa gzpf;bfhil bjhif Fwpj;J vA;fs; epWtdj;jpw;Fk; vy;Irpf;Fk; nilBaahd
fojA;fspd; rpuhf;;!; efy; k.rh.M.8 thpir.”
17. Therefore, I am of the view that the finding of the Tribunal in
taking Rs.2100/- as the monthly salaryof the deceased is erroneous.
Accordingly, this Court takes Rs.269.895/- as the daily wages of the deceased.
Further P.W.2 deposed that he would work for 25 days a month. Hence his monthly
earning works out to Rs.269.895×25=6747.375/-. According to P.W.2, the deceased
would have served up to 58 years had he not died, i.e., he would retire only on
31.07.2004, as his date of birth is 21.07.1946. The appellants are entitled to
loss of income suffered by the claimants from 13.11.2001 to 31.07.2004.(2 years
8 months and 15 days) and hence, the total loss of income comes to
Rs.2,29,966.425/-. After 58 years, I like to take the same wages as taken by
the Tribunal at Rs.2100/-as the monthly wages of the deceased and after
deducting one third towards for his personal expenses, the loss of income
suffered by the claimants is Rs.1400/-p.m.- Annual loss is Rs.1400 x 12 =
Rs.16,800/-. To arrive at the loss of income for the rest of the period,
multiplier ‘8’ is applied, instead of ’11’ used by the Tribunal, since loss of
income for 2 years,8 months and 15 days were worked out. The loss of income for
the rest of the period comes to Rs.1,34,400/-(Rs.16,800 x 8). Hence, the
appellant is entitled to Rs.2,29,966.425/-+1,34,400/-=3,64,366.425/-as
compensation towards loss of income.
18. Thirdly, the learned counsel for the appellants submits that the
Tribunal should have award each a sum of Rs.10,000/- other than the first
appellant towards loss of love and affection, as the first appellant alone was
ordered a sum of Rs.10,000/- towards loss of consortium. I am also of the view
that the appellants other than the first appellant are entitled to Rs.10,000/-
each towards loss of love and affection.
19. For the reasons stated above, the appellants are entitled to the
following compensation:
1. for loss of income - Rs. 3,64,366.425
2. for loss of consortium
to the first appellant - Rs. 10,000.000
3. for loss of love and
affection to the appellants
2 to 4 - Rs. 30,000.000
4. for funeral expenses - Rs. 1,200.000
-------------------
total - 4,05,566.425
--------------------
The total compensation is rounded to Rs.4,05,566.425/-.
20. After deducting the compensation already awarded by the Tribunal, the
appellants are entitled to balance award amount (Rs.4,05,566.425-
1,96,000=2,09.566.42/- with the same rate of interest as ordered by the
Tribunal, from the date of application till the date of realization and the
respondent is directed to deposit the balance to the credit of M.C.O.P.No.1660
of 2001 on the file of the Motor Accident Claims Tribunal, Principal District
Judge, Tirunelvel, within a period of six weeks from the date of receipt of a
copy of this order and the appellants are permitted to withdraw the same, in the
ratio as apportioned by the Tribunal earlier.
21. The Civil Miscellaneous Appeal is disposed of in the above terms. No
costs.
vsn
To
The Motor Accidents Claims Tribunal,
(Principal District Judge),
Tirunelveli.