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2012 DIGILAW 3949 (MAD)

United India Insurance Company Limited v. Indira

2012-09-20

R.BANUMATHI, R.SUBBIAH

body2012
Judgment :- R.BANUMATHI, J. Being aggrieved by the quantum of compensation of Rs.11,45,000/- awarded for the death of Jothi in a road traffic accident on 24.09.1999, the Appellant-Insurance Company has preferred this appeal. 2. Brief facts are that on 24.9.1999 at about 6.50 P.M., deceased Jothi was walking on his extreme left side of Muthukrishnapuram main road from east to west. At that time, the bus bearing registration No.TN-49 B 1955 owned by 6th Respondent and insured with the Appellant-Insurance Company proceeding from west to east driven by its driver in a rash and negligent manner without making any horn or light sign and hit against the deceased. Due to the impact, Jothi sustained grievous injuries. Immediately, after the accident Jothi was taken to Government Hospital, Panruti and inspite of treatment, Jothi succumbed to the injuries on 24.9.1999. At the time of accident, deceased Jothi was aged 38 years and was working as Assistant Electrician in Chemplast Sanmar Limited, Kadampuliyur, Panruti Taluk and was earning Rs.20,000/-per month. Regarding the accident, a Criminal Case was registered against the bus driver in Crime No.987 of 1999 under Section 304(A) I.P.C. of Nellikuppam Police Station. Alleging that the accident was due to rash and negligent driving of the bus driver, the Claimants who are wife, children and mother of the deceased Jothi have filed Claim Petition claiming compensation of Rs.25,00,000/-. 3. Resisting the Claim Petition, Appellant-Insurance Company has filed the counter contending that the quantum of compensation claimed by the Claimants is highly excessive and without any basis. Appellant-Insurance Company also denied the occupation and income, monthly contribution to the family and age of the deceased and contended that the quantum of compensation of Rs.25,00,000/- claimed by the Claimants is on the higher side. 4. Before the Tribunal, 1st Claimant-Indira examined herself as P.W.1. Eye-witness (Subramanian) was examined as P.W.2. Exs.P1 to P5 were marked on the side of Claimants. No oral and documentary evidence was adduced on the side of Appellant-Insurance Company. 5. Upon consideration of evidence of P.W.2-eye witness and referring to Ex.P1-F.I.R. registered against the bus driver, Tribunal held that the accident was due to rash and negligent driving of the bus driver and that the Appellant-Insurance Company is liable to pay compensation to the Claimants. Insofar as, quantum of compensation, based on Ex.P4-salary slip and Ex.P5-salary certificate, Tribunal has taken the monthly income of the deceased at Rs.7,200/-per month. Insofar as, quantum of compensation, based on Ex.P4-salary slip and Ex.P5-salary certificate, Tribunal has taken the monthly income of the deceased at Rs.7,200/-per month. Applying the ratio of 1996-ACJ-831 (U.P. State Road Transport Corporation and others v. Trilok Chandra and others), Tribunal has calculated nine units and deducted two units towards personal expenses of the deceased and adopting multiplier ?15?, Tribunal calculated the ?loss of dependency? at Rs.9,90,000/-. Adding conventional damages, Tribunal awarded total compensation of Rs.11,45,000/- as under:- Loss of dependency ... Rs. 9,90,000.00 (Rs.5,500 x 12 x 15) Loss of consortium ... Rs. 1,00,000.00 Loss of love and affection ... Rs. 50,000.00 Funeral expenses ... Rs. 5,000.00 ------------------- Total ... Rs.11,45,000.00 -------------------- 6. In his evidence, P.W.2-Subramanian stated about the accident that the bus driver drove the bus in a rash and negligent manner. Evidence of P.W.2 and registration of Ex.P1-F.I.R. against the bus driver are unassailable. Appellant-Insurance Company has preferred the appeal mainly challenging the quantum of compensation awarded by the Tribunal. 7. Ms.N.Mala, learned counsel for Appellant submitted that the quantum of compensation awarded is on the higher side. Learned counsel would further submit that the Tribunal ought to have taken the net pay as per Ex.P4-pay slip for computing the compensation awarded and while so, the Tribunal erred in taking the gross income. Learned counsel also submitted that the Tribunal erred in deducting only Rs.1700/-towards personal expenses and the Tribunal ought to have deducted one-third amount towards personal expenses i.e. Rs.2400/-. 8. Mr.S.Parthiban, learned counsel appearing for Claimants submitted that as per Exs.P5-salary certificate, the deceased was getting salary of Rs.7,200/- and as per Sarla Verma case, the Tribunal ought to have made addition of 30% towards future prospects, which has not been done. It was further submitted that Rs.1700/- deducted towards personal expenses, even though a less amount, the same cannot be interfered with. Learned counsel submitted that the quantum of compensation awarded is very reasonable, warranting no interference. 9. Quantum of compensation - Deceased Jothi was working as Assistant Electrician in Chemplast Sanmar Limited, Kadampuliyur, Panruti Taluk. In her evidence, P.W.1-Indira stated that her husband was getting Rs.20,000/- per month. By perusal of Ex.P4-salary slip (for the month of August 1999) and Ex.P5-salary certificate dated 08.3.2004 (for the month of August 1999), it is seen that deceased Jothi was getting salary of Rs.7,234.06 per month. In her evidence, P.W.1-Indira stated that her husband was getting Rs.20,000/- per month. By perusal of Ex.P4-salary slip (for the month of August 1999) and Ex.P5-salary certificate dated 08.3.2004 (for the month of August 1999), it is seen that deceased Jothi was getting salary of Rs.7,234.06 per month. Based on Exs.P4 and P5, Tribunal has taken the monthly income of the deceased at Rs.7,200/- per month and the same is maintained. 10. Applying the ratio of 1996-ACJ 831 (U.P. State Road Transport Corporation and others v. Trilok Chandra and others), Tribunal has calculated nine units and deducted the amount for two units i.e., Rs.1,600/- plus Rs.100/- i.e., R.1,700/- for personal expenses and calculated the loss of income at Rs.5500/- per month i.e. Rs.66,000/- per annum. Adopting multiplier 15, Tribunal has calculated the loss of dependency at Rs.9,90,000/-. 11. Learned counsel for Appellant-Insurance Company contended that Tribunal ought to have deduced one-third for personal expenses which would be Rs.2,400/- and while so, Tribunal was not right in deducting lesser amount of Rs.1,700/- per month towards personal expenses and that learned counsel for Appellant-Insurance Company prayed for suitable modification. 12. Ofcourse for personal expenses, one-third deduction is the normal rule. As per the decision in Sarla Verma's case [(2009) 6 SCC 121], when the deceased is having permanent job and is aged between 40-50 years, 30% additions to be made for future prospects. In 2012 ACJ 1428 (Santosh Devi v. National Insurance Company Limited and others), the Supreme Court held that additions are to be made even in a case of employees of private sector and also unorganised sector. In this case, deceased was employed in Chemplast Sanmar Limited, Kadampuliyur, Panruti Taluk as Assistant Electrician. As per the ratio of the decision in Sarla Verma's case and Santosh Devi's case, 30% additions could be made for future prospects. But the Tribunal has calculated the monthly income only at Rs.7,200/- and deducted lesser amount of Rs.1,700/-towards personal expenses. But Tribunal has not given any addition for future prospects and in those circumstances, we are not inclined to interfere with the amount of Rs.1,700/- deducted towards personal expenses, even though the said amount is a less amount. Thus amount of Rs.66,000/-per annum (Rs.5,500 x 12) taken by the Tribunal for loss of income is maintained. But Tribunal has not given any addition for future prospects and in those circumstances, we are not inclined to interfere with the amount of Rs.1,700/- deducted towards personal expenses, even though the said amount is a less amount. Thus amount of Rs.66,000/-per annum (Rs.5,500 x 12) taken by the Tribunal for loss of income is maintained. As per Second Schedule to M.V. Act, the multiplier to be adopted is 15" which the Tribunal has rightly adopted and the same is maintained. Adopting multiplier "15", the loss of dependency calculated at Rs.9,90,000/- (Rs.66,000 x 15 = Rs.9,90,000/-) by the Tribunal is maintained. 13. Conventional damages - Tribunal has awarded Rs.1,00,000/- for loss of consortium. 1st Claimant has lost her husband at the young age of 30 years. Therefore, Rs.1,00,000/- awarded by the Tribunal for loss of consortium is maintained. Tribunal has awarded Rs.50,000/-for loss of love and affection to Claimants 2 to 5. Minor Claimants 2 to 4 have lost their father at the age of 9,7 and 5 years respectively. Likewise, the 5th Claimant, mother of deceased has lost her son at the age of 55 years. Considering the fact that minor Claimants have lost their father at their young age and that the 5th Claimant has lost her son at the age of 55 years, compensation of Rs.50,000/- awarded by the Tribunal for loss of love and affection is maintained. Tribunal has also awarded Rs.5,000/-for funeral expenses and the same is maintained. Thus the total compensation of Rs.11,45,000/- awarded by the Tribunal is maintained warranting no interference. The compensation of Rs.11,45,000/-awarded by the Tribunal is to be apportioned amongst the Claimants on pro rata basis as ordered by the Tribunal. Tribunal awarded interest at the rate of 7.5% per annum and the same is also maintained. 14. In the result, the compensation of Rs.11,45,000/-awarded by the Tribunal in M.C.O.P.No.1008 of 2002 dated 12.09.2006 is confirmed and the appeal preferred by the Appellant-Insurance Company is dismissed. It was stated before us that the Appellant-Insurance Company has deposited 80% of the compensation along with accrued interest awarded by the Tribunal. From out of which, Claimants are said to have withdrawn Rs.1,55,000/-being the conventional damages. Claimants 1 and 5 are permitted to withdraw their share of compensation along with proportionate accrued interest lying in the Court, immediately after the receipt of copy of this judgment. From out of which, Claimants are said to have withdrawn Rs.1,55,000/-being the conventional damages. Claimants 1 and 5 are permitted to withdraw their share of compensation along with proportionate accrued interest lying in the Court, immediately after the receipt of copy of this judgment. Appellant-Insurance Company is directed to deposit the balance compensation along with accrued interest within a period of eight weeks from the date of receipt of the copy of this judgment. On such deposit, Claimants 1 and 5 are also permitted to withdraw the balance compensation along with accrued interest. The share in respect of minor Claimants 2 to 4 is ordered to be invested in any of the nationalised bank till they attain majority and the 1st Claimant is permitted to withdraw the accrued interest once in three months directly from the bank. Consequently, connected M.P. is closed. There is no order as to costs.