Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 1426 (MAD)

Managing Director v. Suseela

2012-03-20

R.BANUMATHI, S.VIMALA

body2012
Judgment (R.BANUMATHI, J.) 1. Challenge in this appeal is the award passed in M.C.O.P.No.2423 of 2007 dated 06.01.2011, awarding compensation of Rs.13,25,000/-for the death of the deceased Loganathan in the road traffic accident on 15.01.2007. 2. Deceased Loganathan was working as Sub Inspector of Police. On 15.01.2007 at about 3.30 p.m., when the deceased was riding his motorcycle bearing Registration No.TN 01 G 2430 on G.S.T. Road towards Chenglepet, opposite to Muthumariamman Koil, the bus belonging to the appellant corporation bearing Registration No.TN 21 N 0504 driven by its driver in a rash and negligent manner, came on the wrong side of the road and dashed against the motorcycle. Due to the hit, the deceased was thrown out and sustained multiple injuries and died. On the complaint lodged by one Kanagaraj -a close relation of the deceased, criminal case was registered in Crime No.15 of 2007 on the file of D1 Chenglepet Police Station. The deceased was aged 50 years and was working as Sub Inspector of Police, D2 Anna Salai Police Station, Chennai and earning Rs.12,000/- per month. Alleging that the accident was due to the rash and negligent driving of the driver of the appellant corporation and that the family has lost the support, the claimants filed the claim petition seeking compensation of Rs.20 lakhs. 3. Resisting the claim petition and denying the manner of accident, the appellant corporation filed counter contending that on 15.01.2007 the appellant corporation's bus bearing Registration No.TN 21 N 0504 was proceeding from Thirupulivanam towards Chennai and when the bus was nearing Chinnamariamman Koil, the motorcyclist with pillion rider came in the opposite direction and without observing the traffic rules, the motorcyclist tried to overtake a vehicle moving before his motorcycle. While doing so, the two wheeler hit against the right bumper of the standing bus, due to which, the rider of the two wheeler - Loganathan and also the pillion rider -Ethiraj fell down on the road and both of them died on the spot. The accident was due to the rash and negligent act of the motorcycle rider and the petition is bad for non-joinder of necessary parties i.e. owner and insurer of the said motorcycle. Appellant corporation also denied the age, occupation and monthly income of the deceased. 4. Before the Tribunal, first claimant was examined as P.W.1. Eye witness - Jayanthi was examined as P.W.2. Appellant corporation also denied the age, occupation and monthly income of the deceased. 4. Before the Tribunal, first claimant was examined as P.W.1. Eye witness - Jayanthi was examined as P.W.2. On behalf of the claimants, Exs.P1 to P8 were marked. On the side of the appellant - Corporation, the driver, who was on duty at the time of accident, was examined as R.W.1 and no document was marked. 5. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving of the bus driver. Based on Ex.P4 Salary Certificate, the Tribunal has taken the monthly income at Rs.11,101/-. Pointing out that there are six dependents, applying the ratio of the decision in Smt.Sarla Verma and Others Vs. Delhi Transport Corporation and another (2009(2) TNMAC 1), the Tribunal deducted 1/4th amount for personal expenses and taken the loss of dependency at Rs.99,909/- per annum. Based on the post mortem certificate, the Tribunal has taken the age of the deceased as 50, adopted multiplier 13 and calculated the total loss of income at Rs.12,98,817/-. Adding conventional damages, the Tribunal has awarded total compensation of Rs.13,25,000/- as under: Loss of dependency.. Rs.12,98,817.00 (Rs.11,101/- x 12 x 1/4 x 13) Loss of consortium.. Rs. 10,000.00 to the 1st claimant Loss of love and affection .. Rs. 10,000.00 to claimants 2 to 5 Funeral expenses, Transport expenses .. Rs. 6,183.00 = = = = = = = = Total.. Rs.13,25,000.00 = = = = = = = = 6. The impugned award is challenged on two grounds negligence as well as quantum. Learned counsel for the appellant contended that the Tribunal erred in coming to the conclusion that the accident was due to the rash and negligent driving of the driver of the appellant corporation. Drawing our attention to Ex.P2 -rough sketch, learned counsel submitted that the Tribunal did not properly appreciate Ex.P2 - rough sketch and the oral evidence. It was further submitted that the complainant Kanagaraj was not an eye witness and in the absence of examination of the complainant, the Tribunal was not right in arriving at the conclusion that the accident was due to the rash and negligent driving of the bus driver. 7. It was further submitted that the complainant Kanagaraj was not an eye witness and in the absence of examination of the complainant, the Tribunal was not right in arriving at the conclusion that the accident was due to the rash and negligent driving of the bus driver. 7. Per contra, learned counsel for the respondents/claimants contended that based on the consistent evidence adduced by the claimants, the Tribunal rightly held that the accident was due to the negligence of the driver of the appellant Corporation. 8. Eye witness - Jayanthi is the resident of Kolathumetu Street, Indra Nagar, Chenglepet and she was examined as P.W.2. In her evidence, P.W.2 has stated that on 15.01.2007, she was proceeding in an auto to go to the hospital and while she was proceeding in the National Highways, the motorcycle of the deceased was proceeding in front of her and at that time, the bus bearing Registration No.TN 21 N 0504 driven in a rash and negligent manner came from the opposite direction and hit against the motorcycle. P.W.2 asserted that the accident was due to the negligent driving of the bus driver. 9. P.W.2 is the resident of Kolathumetu Street, Indra Nagar, Chenglepet. To substantiate that she is the resident of the said address, Ex.P8 photo copy of the Family Card of P.W.2 has been produced, which would show that P.W.2 is a natural and probable witness. The evidence of P.W.2 is also corroborated by other objective findings recorded during investigation. 10. Deceased Loganathan was proceeding in his motorcycle bearing Registration No.TN 01 G 2430 from Chennai to Guntur i.e. from North to South. The appellant Corporation's bus bearing Registration No.TN 21 N 0504 was proceeding from Thirupulivanam to Chennai i.e. from South to North. By perusal of Ex.P2 - rough sketch, it is seen that the road Chennai-Tindivanam is a National Highways. By perusal of Ex.P2, it is also seen that the scene of crime is in the middle of the road i.e. 30 feet from western extremity and 35 feet from the eastern extremity. Ex.P2 clearly indicates that the point of impact was at a distance of 35 feet from the eastern side. The bus which was proceeding from South to North, to keep left, ought to have proceeded on the western side of the road. Ex.P2 clearly indicates that the point of impact was at a distance of 35 feet from the eastern side. The bus which was proceeding from South to North, to keep left, ought to have proceeded on the western side of the road. The fact that the point of impact is in the middle of the road at a distance of about 35 feet from the eastern side clearly indicates that the bus swerved to the wrong side - eastern side. Based on the evidence of P.W.2 and Ex.P2, the Tribunal rightly held that the accident was due to the negligent driving of the bus driver. 11. Case of the appellant is that the two wheeler overtook another vehicle proceeding in front of it and in that process, hit against the right side bumper of the bus. To substantiate the defence plea, excepting the evidence of R.W.1 driver of the bus, no other independent evidence was adduced. In the absence of any independent evidence being adduced, the evidence of R.W.1 is not acceptable. That apart, as pointed out by the Tribunal, F.I.R. Ex.P1 was registered against the bus driver. On completion of investigation, charge sheet was also filed against the bus driver (R.W.1). Registration of the criminal case and filing of charge sheet against the bus driver would prima facie show the negligence of the bus driver. On overall analysis of oral and documentary evidence, we are of the view that the Tribunal was right in holding that the accident was due to the rash and negligent driving of the bus driver and fastening the liability upon the appellant corporation. We do not find any reason to interfere with the actual finding recorded by the Tribunal. 12. Insofar as the quantum, learned counsel for the appellant contended that the quantum of compensation awarded by the Tribunal is exorbitant. Learned counsel submitted that the Tribunal erred in fixing the monthly income at Rs.11,101/- and also erred in not making suitable deductions towards income tax. Learned counsel further submitted that the deceased was aged 50 years at the time of accident and he would have continued to work only for another eight years and while so, the Tribunal erred in taking the income for the entire multiplier period of 13 and prays for suitable reduction of the compensation. 13. Placing reliance upon the judgment in K.R.Madhusudan and Others Vs. 13. Placing reliance upon the judgment in K.R.Madhusudan and Others Vs. Administrative Officer and Another (2011 (1) TN MAC 161 (SC)), learned counsel for the claimants submitted that as per the decision laid down in Sarla Verma's case (cited supra), the Tribunal ought to have made additions to income for future prospects. It was further submitted that even though the deceased was aged 50 years at the time of accident, considering the fact that no addition was made for the future prospects, there is no necessity for adopting lesser multiplier and also for making deduction towards income tax. 14. Deceased Loganathan was working as Sub Inspector of Police. Ex.P4 is the salary certificate of the deceased. It is seen from Ex.P4 that the gross salary of the deceased was Rs.11,101/- and after deductions, his net salary was Rs.6,586/-. It is fairly well settled that for taking the income, only the gross salary has to be taken. 15. The contention of the learned counsel for the appellant is that when the salary of the deceased is Rs.11,101/-, suitable deduction at 10% ought to have been made towards income tax. The accident was in the year 2007. If the income of the deceased is taken at Rs.11,101/-, the annual income of the deceased is around Rs.1,33,212/- (Rs.11,101/-x 12 = Rs.1,33,212/-). After making standard deductions and H.R.A., we do not think that the income of that slab would have been the taxable income. In any event, it is pertinent to point out that even though the deceased was working as Sub Inspector of Police, the Tribunal has not given any additions to the income towards future prospects. Viewed from that angle, we do not think that it is necessary to make deduction of 10% towards income tax. 16. To prove the age of the deceased, the claimants have not filed any documents like S.S.L.C. Book, Service Register etc., Ex.P5 is the death certificate in which the age of the deceased is stated as 50 years. In Ex.P3 -post mortem certificate, age of the deceased is stated as 50. The Tribunal has adopted multiplier 13. As per the II Schedule, for the age group of above 45 years and not exceeding 50 years, proper multiplier to be adopted is 13 and the Tribunal has adopted multiplier 13. 17. In Ex.P3 -post mortem certificate, age of the deceased is stated as 50. The Tribunal has adopted multiplier 13. As per the II Schedule, for the age group of above 45 years and not exceeding 50 years, proper multiplier to be adopted is 13 and the Tribunal has adopted multiplier 13. 17. Learned counsel for the appellant contended that since the deceased was working as Sub Inspector of Police, he would have continued in service only for another eight years and thereafter, he would have retired and he would have got only pension and while so, the Tribunal erred in adopting multiplier 13 and calculating the income for the entire multiplier period of 13. It was further submitted that for the multiplier 8, the Tribunal should have taken the salary at Rs.11,101/-and for the remaining multiplier period, the Tribunal ought to have made suitable deduction and calculated loss of dependency only based upon the pension amount to which the deceased would have been entitled to. 18. Of course, the deceased would have continued in service for eight more years and thereafter, he would have attained superannuation. After his retirement, the deceased would have got only pension at the rate of 40% or 50% of the last drawn salary. But on that ground, we are not inclined to interfere with the loss of dependency calculated by the Tribunal by taking the income at Rs.11,101/- per month and multiplier at 13. The reason being as per the decision of the Sarla Verma's case (cited supra), the Tribunal has not given addition in income for future prospects. Since the deceased was working as Sub Inspector of Police, he would have got the benefits of VI Pay Commission and also increments and would have also got future promotions. Considering the permanent nature of the job and also the implementation of VI Pay Commission in the State of Tamil Nadu, the Tribunal ought to have given suitable addition towards future prospects. 19. Learned counsel for the appellant contended that since the deceased was aged 50 years, the ratio of the decision laid down in Sarla Verma's case is not applicable. In this regard, learned counsel for the respondents/claimants has drawn our attention to the decision in K.R.Madhusudan and Others Vs. Administrative Officer and Another (2011 (1) TN MAC 161 (SC)). 19. Learned counsel for the appellant contended that since the deceased was aged 50 years, the ratio of the decision laid down in Sarla Verma's case is not applicable. In this regard, learned counsel for the respondents/claimants has drawn our attention to the decision in K.R.Madhusudan and Others Vs. Administrative Officer and Another (2011 (1) TN MAC 161 (SC)). Observing that in exceptional cases, even though the deceased was aged 50 years, he shall be entitled to increase in income due to future prospects and making a distinction with the ratio of the decision in Sarla Verma's case, in para 9 and 10 of the said judgment, the Supreme Court has held as under: "9.) In the Sarla Verma (supra) judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances. We are of the opinion that the rule of thumb evolved in Sarla Verma (supra) is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different Courts, and to overcome the same. 10.) The present case stands on different factual basis where there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a rise in income in the future, a fact which was corroborated by evidence on record. Thus, we are of the view that the present case comes within the 'exceptional circumstances' and not within the purview of rule of thumb laid down by the Sarla Verma (supra) judgment. Hence, even though the deceased was above 50 years of age, he shall be entitled to increase in income due to future prospects." 20. Thus, we are of the view that the present case comes within the 'exceptional circumstances' and not within the purview of rule of thumb laid down by the Sarla Verma (supra) judgment. Hence, even though the deceased was above 50 years of age, he shall be entitled to increase in income due to future prospects." 20. Thus it was clearly laid down that in exceptional cases where there is clear evidence on record that deceased was bound to get rise in income in future, even though deceased was above 50 years of age, he shall be entitled to the increased income due to future prospects. In this case, the deceased was working as Sub Inspector of Police and his job was of permanent nature. Since VI Pay Commission was implemented in the State of Tamil Nadu and that the deceased would have certainly had the benefit of VI Pay Commission and in the said exceptional facts and circumstances of the case, we are of the view that the ratio of the above decision in Madhusudan's case (cited supra) is applicable to the case on hand. However, loss of dependency calculated by the Tribunal at Rs.12,98,817/- is quite reasonable, warranting no interference. Insofar as conventional damages, the Tribunal has awarded Rs.10,000/-to the first claimant for loss of consortium, Rs.10,000/- to other claimants towards loss of love and affection and Rs.6,183/- for funeral expenses. Conventional damages awarded by the Tribunal is also quite moderate, warranting no interference. The Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained. 21. In the result, the award passed by the Tribunal in M.C.O.P.No.2423 of 2007 (dated 06.01.2011) and the quantum of compensation awarded by the Tribunal is confirmed and the appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 22. The appellant Corporation is directed to deposit the entire compensation amount along with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimants are permitted to withdraw the compensation amount payable to them along with accrued interest.