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2010 DIGILAW 4724 (MAD)

Shakila Ravi v. Sri Lakshmi Narayanan Transport

2010-10-26

C.T.SELVAM

body2010
Judgment :- This Civil Miscellaneous Appeal arises against the judgment and decree passed by the Motor Accident Claims Tribunal, (Sub-Court), Gudiyattam, Vellore District in MCOP No.319 of 2004 dated 31.01.2007. 2. The claimants before the Tribunal are the appellants herein. The deceased was the husband of the first appellant and the father of the appellants 2 and 3, who were his minor sons. At about 8 a.m. on 26.10.2004, the deceased and his wife were traveling in a motor cycle on the Madras-Tiruvallur Main Road and near the Brakes India Company Ltd. on such road, when a Tanker Lorry bearing registration No.TN-02-R-6205 which was driven in a rash and negligent manner, hit against the Motor Cycle resulting in the instantaneous death of the deceased. 3. Before the Tribunal, the appellants/claimants claimed compensation in a sum of Rs.75,00,000/-, examined four witnesses and marked the following exhibits: (1) Ex.P.1 : Certified copy of FIR (2) Ex.P.2 : Certified copy of Postmortem Report (3) Ex.P.3 : Certified copy of M.V. I. Report (4) Ex.P.4 : Certified copy of Charge Sheet (5) Ex.P.5 : 10th Mark List (6) Ex.P.6 : Industrial School Certificate (7) Ex.P.7 : Training Certificate (8) Ex.P.8 : Provisional Certificate in Diploma (9) Ex.P.9 : Pan Card (10) Ex.P.10 : Letter issued from United India Insurance Co. Ltd. (11) Ex.P.11 : R.C. Book of two wheeler (12) Ex.P.12 : Copy of Insurance Policy (13) Ex.P.13 : Copy of Insurance Policy (14) Ex.P.14 : Legal heir certificate (15) Ex.P.15 : Authorization letter given by Otis, Chennai (16) Ex.P.16 : Salary Certificate On the side of the respondents, one witness was examined. 4. PW-1 is the wife of the deceased and she has spoken to the occurrence, so too have PW-2 and PW-4 eye-witnesses. PW-3 has been examined on behalf of the employer of the deceased and the salary certificate of the deceased was marked as Ex.P16. RW-1 was the investigator on behalf of the insurance company. 5. 4. PW-1 is the wife of the deceased and she has spoken to the occurrence, so too have PW-2 and PW-4 eye-witnesses. PW-3 has been examined on behalf of the employer of the deceased and the salary certificate of the deceased was marked as Ex.P16. RW-1 was the investigator on behalf of the insurance company. 5. On appreciation of evidence and materials before it, the Tribunal had against the salary certificate Ex.P16 informing the earning of the deceased to be Rs.14,132/-, deducted the sums payable to the deceased as incentive allowance (Rs.511/-); ex-gratia (Rs.2,444/-) and field duty allowance (Rs.910/-) holding that the same cannot be considered as regular salary and found the salary of the deceased to be Rs.10,267/-p.m. As the deceased was aged 37 years, the multiplier of 16 was applied and a sum of Rs.19,71,264/- as so arrived at and 1/3rd thereof was deducted towards his personal expenses and the deceased contribution to the appellants/claimants was held to be Rs.13,14,176/-. The Tribunal found a sum of Rs.5,000/-payable towards loss of consortium; Rs.2,000/- towards funeral expenses; Rs.5,000/-towards loss of love and affection and arrived at a total figure of Rs.13,26,176/-. A sum of Rs.1,00,000/-was deducted therefrom, as such sum had been claimed by the first appellant/wife under a policy of insurance. Thus, it found a sum of Rs.12,26,176/- payable to the appellant/claimants together with interest thereon at 6% from the date of petition. 6. The Tribunal directed that a sum of Rs.4,26,176/-to paid to the first appellant/wife and sums of Rs.4,00,000/- each to the two minors. Consequential direction towards withdrawal of the sums as also the interest portion for the upkeep of the minors were passed. 7. Heard the learned counsel for the appellants and the learned counsel for the 2nd respondent. 8. In the appeal, it is urged that the Tribunal was not satisfied in holding that certain sums reflected in the salary certificate are to be deducted from the monthly income. 7. Heard the learned counsel for the appellants and the learned counsel for the 2nd respondent. 8. In the appeal, it is urged that the Tribunal was not satisfied in holding that certain sums reflected in the salary certificate are to be deducted from the monthly income. Informing that the deceased was a person holding regular employment and was aged only 37 years at the time of his death, had left behind his wife aged 32 years and two minor children aged 10 and 6 respectively as on the date, learned counsel for the appellants would inform that the principles and norms enunciated by the Honourable Apex Court in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another (2009 (2) TN MAC 1 (SC) would be applicable. Learned counsel therefore would pray that the sum of Rs.14,132/- as reflected in the salary certificate be accepted in its totality and that a 50% addition there to be made by taking into consideration his future prospects since the deceased was below 40 years of age. Learned Counsel would state that such was the norm as has been held in the Smt. Sarla Verma’s case and the multiplier of 15 as applied therein, may be applied also in this case. Learned counsel would rely on the decision of the Honourable Division Bench of this Court New India assurance Co. Ltd. v. Kalyalvizhi and 5 others ( 2010 (1) CTC 823 ) towards seeking an increase of compensation under the heads of consortium and loss of love and affection. Learned counsel would another contend that the cremation expenses afforded by the Tribunal sum of Rs.2,000/- is very meager and that interest on the entire compensation ought to have been permitted at 7.5%. 9. Learned counsel for the second respondent would submit that this is a case where the employer wanted to help the family of its deceased employee. Pointing out that the salary certificate Ex.P16 did not inform particulars of provident fund, gratuity fund and ESI distribution of the deceased, he would submit that this would dedicate that the deceased was not a person in regular employment. The submission is that the deceased ought to be found to be a person on a fixed salary without provision of annual increments, etc. and therefore, only the actual income at the time of death ought to be taken into consideration for purpose of compensation. The submission is that the deceased ought to be found to be a person on a fixed salary without provision of annual increments, etc. and therefore, only the actual income at the time of death ought to be taken into consideration for purpose of compensation. The attempt is to draw the instant case away from the application of norms stipulated in Smt. Sarla Verma’s case. 10. I have considered the rival submissions. 11. In New India Assurance Co. Ltd. v. Kayalvizhi and 5 others ( 2010 (1) CTC 823 ), this Court has observed as follows: “13. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ‘just’ compensation which is the pivotal consideration. Though by the use of the expression “which appears to it to be just”, a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, guesses and arbitrariness. The expression “just” denotes equitability, fairness and reasonableness, and non-arbitrariness.” 12. On perusal of the evidence and materials available, this court is of the opinion that this is a fit case where the compensation payable to the appellants is to be enhanced. There is any dispute as to the manner in which the deceased met his death or the liability of the insurer/second respondent to make payment. A closer reading of the testimony of witnesses particularly that of PW- would show that PW-3 was examined as the representative of the employer Otis Elevator Co. Ltd. such witness admitted that the salary certificate Ex.P16 informs the gross salary and stated that the details of deduction made could be spoken to only through perusal of the relevant salary book/account book etc. If indeed, the second respondent/insurer wished to establish that the deceased was only on a fixed salary and that he was not entitled to provident fund, gratuity, ESI etc. If indeed, the second respondent/insurer wished to establish that the deceased was only on a fixed salary and that he was not entitled to provident fund, gratuity, ESI etc. as would be applicable in the case of a regular employee or that he was not entitled to regular increments of salary, it well could have called for the relevant records from the employer to establish its case. When it has not done so, this Court would not consider any such contention. This Court finds no justification in the Tribunal deducting a sum of Rs.1,00,000/- as the same was claimed by the first appellant under an insurance policy. 13. Coming to the question of what would be the actual salary of the deceased, this Court finds itself in agreement with the Tribunal on its deduction of sums payable under the heads incentive and ex- gratia, but this Court is unable to agree with the finding as regards the deduction of field duty allowance. It is in evidence that the deceased was a technician and therefore, the very nature of his job would require him to be on field duty. As such, this Court finds the salary of the deceased to be Rs.11,177/-. This Court finds that the deceased was aged 37 and in permanent employment with a established company viz., Otis Elevator Co. Ltd. and therefore, would apply the form of adding 50% of the income towards loss of future prospects as calculated in the Sarla Verma case. As the deceased was aged 37 and he left behind three dependents, this Court would deduct 1/3rd towards his personal expenses and apply the multiplier of 16. Accordingly, the sum payable under the head loss of income would be Rs.14,30,592/- (Rs.7,451 x 12 x 16). 14. Given the age of the deceased and the fact that he left behind his wife and two minor children of tender years, this Court is inclined to increase the compensation payable under the heads loss of consortium to Rs.40,000/-; love and affection to Rs.20,000/- and funeral expenses to Rs.5,000/-. Accordingly, the total sum payable would be as follows: The said sum of Rs.14,95,592/-shall be paid together with interest at 7.5% from the date of petition. 15. Accordingly, the total sum payable would be as follows: The said sum of Rs.14,95,592/-shall be paid together with interest at 7.5% from the date of petition. 15. In the result, the CMA is allowed and the compensation awarded in MCOP No.319 of 2004 dated 31.01.2007 by the Motor Accident Claims Tribunal, (Sub-Court), Gudiyattam, Vellore District is enhanced to Rs.14,95,592/-together with interest at 7.5% p.a. from the date of filing of the petition. There shall be no order as to costs. 16. It is represented that the respondent has deposited the entire amount as directed by the Tribunal. The balance found payable in keeping with the present order shall be deposited by the second respondent/insurer together with interest thereon at 7.5% p.a. from the date of petition within a period of eight weeks from the date of receipt of a copy of this order. Each of the appellants shall be entitled to 1/3rd of the above sum (as close as may be). The first appellant/wife is at liberty to withdraw the sum payable to her. The sums payable to the appellants 2 and 3/minors shall be held in fixed deposit with a nationalized bank, which will be renewable from time to time upto their respective dates of majority. Upon turning 18, it would be open for the minors to withdraw such sum. Till such event, the first appellant is entitled to withdraw the interest towards meeting the needs of the appellants 2 and 3.