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2011 DIGILAW 4842 (MAD)

Poongavanam v. D. Johnson

2011-12-16

K.MOHAN RAM, M.DURAISWAMY

body2011
JUDGMENT :- K. Mohan Ram, J. 1. Not being satisfied with the quantum of compensation awarded by the Motor accidents Claims Tribunal, Principal District Judge, Tiruvannamalai, in MCOP No.86 of 2007, the Fourth Claimant has filed the above Appeal. 2. Pending Appeal, the Respondents 3 to 5 have filed M.P. No.1 of 2010 in CMA No.3337 of 2008 to transpose the Petitioners therein (Respondents 3 to 5) for transposing them as Appellants 2 to 4 in the above Civil Miscellaneous and the said Petition has been ordered today and the Respondents 3 to 5 have been transposed as Appellants 2 to 4. 3. The Appellants filed MCOP No.86 of 2007 before the Tribunal claiming a total compensation of Rs.40 lakhs in respect of the death of the son of the First Appellant, husband of the Second Appellant and the father of the Third and Fourth Appellants (C. Renu) in a motor accident that took place on 28.8.2006 involving a Motorcycle bearing Registration No.TN-25-B-6720 driven by the deceased and the another Motorcycle bearing Registration No.TN-25-F-9740 which was owned by the First Respondent, driven by his son and insured with the Second Respondent. According to the Appellants, the accident had occurred only due to the rash and negligent driving of the two-wheeler by the son of the First Respondent and as such, he and the Insurer are liable to pay the compensation. According to the Appellants, the deceased was aged about 48 years at the time of death and he was employed as a Junior Engineer in the Tamil Nadu Electricity Board and was earning a monthly salary of Rs.21,987/-and accordingly claimed a total compensation of Rs.40 lakhs. It is the further case of the Appellants that between 28.8.2006 and 15.10.2006, the deceased was taking treatment, but on 15.10.2006 he died. 4. Before the Tribunal, the First Respondent contested the claim inter-alia contending that the allegation in the Claim Petition are not true; the First Respondent's son drove the two-wheeler in a careful manner and at that time the deceased suddenly came out from the tea shop towards west to east and caused the accident; the accident had not occurred due to any fault on the part of his son but had occurred only due to the rash and negligent driving of the two wheeler driven by the deceased; the other details regarding age, occupation, income, etc., are denied. 5. 5. The Second Respondent also contested the claim by filing a Counter Statement inter-alia contending that the vehicle belonging to the First Respondent was not insured with the Second Respondent and as such the Second Respondent is not liable to pay any compensation; the age, occupation and income of the deceased has been disputed. 6. Before the Tribunal, on the side of the Claimants/Appellants herein, three witnesses have been examined and Exs. P-1 to P-19 have been marked, but on the side of the Respondents, the oral or documentary evidence was let in. On a consideration of the evidence adduced before it, the Tribunal came to the conclusion that the accident occurred only due to the rash and negligent driving of the two wheeler belonging to the First Respondent and the Tribunal has further held that the Insurer has not proved that the vehicle has not been insured with the Second Respondent and accordingly held that the Second Respondent is also liable to pay the compensation. 7. The Tribunal though referred to Ex.P-4 Salary Certificate of the deceased, which reveals the monthly income of the deceased as Rs.21,987/-, fixed the net salary at Rs.7,238/- and considering the fact that he had nine more years of service, added another Rs.800/- and fixed the monthly income at Rs.8,128/-and by applying multiplier of 9' fixed the pecuniary loss at Rs.5,85,216/-. The Tribunal has also come to the conclusion that after retirement the deceased would have got a sum of Rs.5,500/-towards pension and arrived at the pecuniary loss at Rs.1,76,000/- and ultimately arrived at the Pecuniary Loss at Rs.7,61,216/-. A sum of Rs.5,000/- was awarded toward Loss of Consortium and no other conventional damages have been awarded. The Tribunal has awarded interest at the rate of 7.5% per annum. Being aggrieved by the quantum of compensation awarded, the Claimants have filed the above Appeal. 8. Heard the learned Counsel on either side. 9. Learned Counsel for the Appellants submitted that the Tribunal without even understanding the basic principles to be applied in a case of compensation claimed under the Motor Vehicles Act, on its own, without applying any legal principles, has fixed the pecuniary loss at Rs.7,61,216/-, the Tribunal has only taken the net salary but not the gross salary of the deceased in utter violation of the well settled principles of the Apex Court in a number of decisions. She further submitted that the sum of Rs.5,000/-awarded towards Loss of Consortium is also less and the Tribunal ought to have awarded reasonable compensation towards the other conventional damages. She further submitted that since there are four dependents only 1/4th ought to have been deducted towards the personal expenses of the deceased and not 1/3rd as has been done by the Tribunal. 10. Countering the said submissions, the learned Counsel for the Second Respondent fairly submitted that the Tribunal is not right in taking into consideration the net salary, but should have taken the gross salary. He further submitted that towards the Medical Allowance 750/- has been paid to the deceased, which is personal to the deceased and therefore, the same should be deducted. Further, the learned Counsel placing reliance on a decision of the Apex Court reported in Ranjana Prakash versus Divisional Manager,2011 (2) TN MAC 313 (SC) submitted that 30% should be deducted towards the payment of income tax. He further submitted that split theory may be applied for arriving at the compensation. Except the said submissions, no other submission has been made by the learned Counsel for the Second Respondent. 11. We have considered the aforesaid submissions made by the learned Counsel on either side and perused the materials available on record. 12. At the outset, it has to be pointed out that as contended by the learned Counsel for the Second Respondent, we do not find any reason to apply the split theory in this case, since we are applying the multiplier method. 13. As rightly contended by the learned Counsel for the Appellants the Tribunal has not understood the basic principles to be applied in a case of compensation claimed in respect of the death under the Motor Vehicles Act. The Tribunal is not right in taking into consideration only the net salary instead of the gross salary that was received by the deceased on the date of his death. Similarly, the Tribunal has not awarded appropriate compensation the conventional heads. The Tribunal is not right in taking into consideration only the net salary instead of the gross salary that was received by the deceased on the date of his death. Similarly, the Tribunal has not awarded appropriate compensation the conventional heads. When the multiplier method is applied, the Tribunal ought to have taken into consideration the gross salary and taking into consideration the age of the deceased, it should have considered the future prospects of earning and thereafter, should have made proper deduction taking into consideration the number of dependents and further it should have deducted towards payment of Income tax and thereafter, should have arrived at the Pecuniary Loss, but throwing all the settled legal principles to the wind, the Tribunal, on its own, according to its whims-and-fancies, has arrived at the pecuniary loss. Therefore, the award cannot be sustained, as far as the quantum of compensation awarded is concerned. 14. A perusal of Ex.P-4 Salary Certificate relating to the deceased shows that as on 1.9.2006 the deceased was getting a salary of Rs.21,987/-which includes the sum of Rs.50/- paid towards the Medical Allowances. As rightly contended by the learned Counsel for the Insurer, the Medical Allowance is payable only to the deceased and is personal to him and therefore, the same should be deduced and all the other allowances should be taken into consideration while fixing the monthly income and if so, from the gross salary of Rs.21,987/-, Rs.50/-paid towards the Medical Allowance has to be deducted and if so deducted, the monthly salary comes to Rs.21,937. Since the deceased was holding a permanent post as a Junior Engineer with the Tamil Nadu Electricity Board and he was only 48 years of age at the time of death, as per the law laid down in the case of Sarla Verma versus DTC, 2009 (2) TN MAC 1 (SC) : 2009 (6) SCC 121 his future prospects of earning should be taken into consideration. Since he was 48 years of age, 30% of his last drawn salary should be added towards the future prospects and if so done, Rs.6,581/- (30% of Rs.21,937/-) has to be added with Rs.21,937/- and if so added, the monthly income will come to Rs.28,518/-. The annual income will come to Rs.3,42,217/-. In 2006 the exemption allowed under the Income-tax Act from the annual income was Rs.1,00,000/-. The annual income will come to Rs.3,42,217/-. In 2006 the exemption allowed under the Income-tax Act from the annual income was Rs.1,00,000/-. If Rs.1 lakh is deducted, then the taxable income will be Rs.2,42,217/-. The slab applicable will be 20% tax. If 20%, namely, Rs.48,443/- is deducted from the annual income, the annual net income will be Rs.2,93,774/-. Since there are admittedly four dependants, 1/4th namely Rs.73,444/-is deducted, the annual pecuniary loss will come to Rs.2,20,330/-. The proper multiplier applicable in this case is 13' and if the multiplier of 13' is applied, the total pecuniary loss comes to Rs.28,64,290/-. 15. The Tribunal has awarded only a meager sum of Rs.5,000/- towards Loss of Consortium and we are raising the same to Rs.15,000/-. The Tribunal has not awarded any amount towards the Funeral Expenses by observing that the Government would have paid for the Funeral Expenses. The said observation is not acceptable. Towards the Funeral Expenses, Rs.10,000/-is awarded, towards Transportation Charges, a sum of Rs.10,000/- is awarded, towards Loss of Love and Affection to the Appellants 2 to 4, Rs.10,000/- each (totaling Rs.30,000/-) is awarded and towards Loss to the Estate a sum of Rs.20,000/- is awarded. 16. The Tribunal has awarded Rs.2,45,000/-towards the Medical Expenses on the basis of the Medical Bills produced by the Claimants. The Tribunal while awarding Medical Expenses has observed that as per Ex.P-14 series the Appellants have paid a sum of Rs.1,58,616.19 and under Ex.P-16 series a further sum of Rs.87,603.92. If both amounts are added, it comes to Rs.2,46,220/-, but the Tribunal has awarded only Rs.2,45,000/-. Therefore, towards the Medical Expenses, Rs.2,46,220/- is awarded. Thus the total compensation payable comes to Rs.31,95,510/-. But it is seen that the Appellants have restricted their claim to Rs.15,00,000/-in the Appeal. Since just compensation payable to the deceased comes to Rs.31,95,510/-, though the Appellants have restricted their claim in the appeal to Rs.15,00,000/-, we are inclined to award the aforesaid sum of Rs.31,95,510/-on the condition of the Appellants paying the deficit Court-fee within four weeks from the date of receipt of a copy of this judgment. 17. For the aforesaid reasons, the award of the Tribunal, as far as quantum of Compensation, is set aside and there shall be an award for a total compensation of Rs.31,95,510/-, which will carry an interest at 7.5% p.a. and the Civil Miscellaneous Appeal stands allowed. 18. 17. For the aforesaid reasons, the award of the Tribunal, as far as quantum of Compensation, is set aside and there shall be an award for a total compensation of Rs.31,95,510/-, which will carry an interest at 7.5% p.a. and the Civil Miscellaneous Appeal stands allowed. 18. At this juncture, the learned Counsel for the Appellants submitted that the Second Respondents has so far not deposited even the compensation awarded by the Tribunal. If the Second Respondent has not already deposited any amount towards the award passed by the Tribunal, the Second Respondent shall deposit the compensation as awarded in this Appeal together with the accrued interest thereon within a period of eight weeks from the date of receipt of a copy of this judgment to the credit of MCOP No.86 of 2007 on the file of the Motor Vehicles Accident Claims Tribunal, Tiruvannamalai District Court, Tiruvannamalai. On such deposit being made, the First Appellant/Fourth Claimant is entitled to withdraw a sum of Rs.3,95,510/-, the Second Appellant/First Claimant is entitled to withdraw a sum of Rs.10,00,000/- and the Third and Fourth Appellants/ Second and Third Claimants are each entitled to a sum of Rs.9,00,000/- (totaling Rs.18,00,000/-) together with the accrued interest thereon. But, however, there will be no order as to costs.