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2012 DIGILAW 4043 (MAD)

Kumari v. Krishnan

2012-10-01

P.DEVADASS

body2012
Judgment :- The claimants mainly challenges the quantum of compensation awarded to them. 2. Mr.A.A.Venkatesan, learned counsel for the appellants contended that there are four dependents to the deceased, but the Tribunal had deducted 1/3 from the income of the deceased. Ex.P.8 salary certificate mentions the gross salary, but the Tribunal had taken only net salary. For loss of future prospects, 30% of the salary of the deceased is to be added. But, this was not done. The learned counsel cited New India Assurance Co. Ltd. Vs. Gopali and Others (2012 ACJ 2131) and submitted that in that case for loss of future prospects the Court added 100% of last salary of the deceased. The deceased was working in a three-star hotel and he was in receipt of tips at the rate of Rs.300/- daily and that has been completely ignored. No compensation was granted to appellants 2 to 4 for loss of love and affection of the deceased. Very less compensation has been given to the 1st appellant for loss of consortium. 3. On the other hand, Mr.D.Bhaskaran, learned counsel for the Insurance Company contended that there are many uncertainties in the monthly income of the deceased. Tips is an example of this. There is no clear-cut information about the exact salary of the deceased. Considering the relevant factors and evidence adduced, the Tribunal had awarded them proper compensation. Gopali (supra)is not applicable to the facts of this case. 4. I have considered the rival submissions. Perused the materials on record and the impugned Judgment. 5. The road accident had taken place on 03.01.2005. Deceased was employed as a Steward in Residency Hotel, Trichy. It is a three-star hotel. He was a confirmed employee. He had put in 14 years of service. He had 18 years of remaining service. 6. Exs.P8 and P9 are the salary certificates of the deceased. For calculating loss of dependency, salary assumes signal importance. For calculating compensation, in case of salaried persons, from the salary, statutory deduction, if any alone has to be deducted. In arriving the salary, other deductions have to be ignored. Ex.P.9 is the last salary certificate of the deceased. Ex.P8 has been issued one month before Ex.P.9. As per Exs.P.8 and P.9, his gross monthly salary was Rs.4,125/-. Under Ex.P.8, the net salary is Rs.1,964/-. The Tribunal had taken only this amount. This is not correct. 7. In arriving the salary, other deductions have to be ignored. Ex.P.9 is the last salary certificate of the deceased. Ex.P8 has been issued one month before Ex.P.9. As per Exs.P.8 and P.9, his gross monthly salary was Rs.4,125/-. Under Ex.P.8, the net salary is Rs.1,964/-. The Tribunal had taken only this amount. This is not correct. 7. Under Ex.P.8 or under Ex.P.9, there is no statutory deduction. The latest salary slip is Ex.P.9. As far as the basic pay and the dearness allowances are concerned, there is no difficulty. Some allowances also have been mentioned in Ex.P.9. They are paid to him as per the contract of employment. Some allowances have continuity. They were given because of his employment. If he is not employed, he will not be given those benefits. Pay means not pay alone. It is pay and allowances. 8. The deceased was earning Rs.4,125/- per month. There is dearth of data whether he was an income-tax assessee and whether he had taxable income after eligible deductions and what is the income tax he was bound to pay. 9. The evidence of P.W.2, the Accounts Officer of the hotel shows that the deceased was in receipt of tips every day in the range of Rs.300/-. The deceased was employed in a three-star hotel. Receiving of tips in such hotels is not an uncommon event. Tips are given on the pleasure of the customers. There is lot of uncertainties in it. When he got promoted to a higher post, the tips income will go away. One thing is clear that the deceased was in receipt of tips. It had gone to the benefit of his family. Now, that has been lost to his family. So, a lump sum amount needs to be given for the loss of income by way of tips. 10. In SMT.SARALA VERMA AND OTHERS Vs. DELHI TRANSPORT CORPORATION AND ANOTHER [2009 (2) TN MAC 1 (SC)], the Hon'ble Apex Court held that for loss of future prospects such as pay revision, increment, 30% of the last salary is to be added. It is based on the age of the deceased. But, SMT.SARALA VERMA (supra) restricted it to Govt. employees and employees of public sector undertakings. Subsequently, in SANTOSH DEVI Vs. NATIONAL INSURANCE CO. LTD. It is based on the age of the deceased. But, SMT.SARALA VERMA (supra) restricted it to Govt. employees and employees of public sector undertakings. Subsequently, in SANTOSH DEVI Vs. NATIONAL INSURANCE CO. LTD. AND OTHERS [2012 ACJ 1428], the Hon'ble Supreme Court extended this benefit to the dependents of deceased, who were employed in private sectors, even to dependents of self-employed persons, who have lost their lives in road accidents. Gopali (supra) is not applicable to the facts of this case. Now, in this case, the deceased was employed in a three-star hotel. He was then 41 years old. Therefore, compensation for loss of future prospects has to be added to the income of the deceased. 11. The Tribunal deducted 1/3 from the income of the deceased towards his pleasure and other expenses. In SMT.SARALA VERMA (supra),it was held that when there are four dependents, this deduction should be ¼. So, in this case, the deduction should be at the rate of ¼. 12. At the time of accident, the deceased was 41 years old. The Tribunal adopted the multiplier 15'. As per SMT.SARALA VERMA (supra), it should be 14'. 13. Now, calculating on the above lines, the loss of dependency comes to Rs.6,75,696/-(Rs.4,125/- + 30% -¼ x 12 x 14). 14. The first appellant became a widow at a young age. For loss of consortium, the Tribunal had awarded her only Rs.5,000/-. It is increased to Rs.15,000/-. No amount for loss of love and affection of the deceased has been awarded to appellants 2 to 4, who are daughter, son and mother respectively of the deceased. Under this head, each is awarded Rs.10,000/-. Towards cremation expenses only Rs.2,000/- has been awarded. It is increased to Rs.4,000/-. Towards loss of estate, the Tribunal had awarded only Rs.2,500/-. It is increased to Rs.10,000/-. Towards loss of income by way of tips Rs.10,000/- is awarded. 15. In the result, the amount awarded by the Tribunal is modified. The appellants are awarded a total compensation of Rs.7,44,696/-with 7.5% interest p.a. from the date of filing of the claim petition till deposit. Within 4 weeks from the date of receipt of a copy of this Judgment, the second respondent shall deposit the entire compensation amount, less amount, if any, already deposited. On such deposit, appellants 1 and 4 are paid their share of amount as allocated by the Tribunal. Within 4 weeks from the date of receipt of a copy of this Judgment, the second respondent shall deposit the entire compensation amount, less amount, if any, already deposited. On such deposit, appellants 1 and 4 are paid their share of amount as allocated by the Tribunal. The minors' amounts shall continue to be in Bank deposit up to their 18 years of age. The accrued interest thereon shall be regularly paid to their mother and guardian, namely, first appellant. The Civil Miscellaneous Appeal is allowed to the extent indicated above. No costs.