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2012 DIGILAW 4144 (MAD)

Shanthi Selvam v. K. Annamalai

2012-10-05

R.BANUMATHI, R.SUBBIAH

body2012
Judgment :- R. SUBBIAH, J. Not being satisfied with the quantum of compensation awarded by the Tribunal, challenging the award, dated 8.7.2003 passed in M.A.C.T.O.P.No.466 of 1996 on the file of the Motor Accident Claims Tribunal, Small Causes Court, Chief Judge, Chennai, the legal heirs of the the deceased V.Selvam, have filed the present appeal. 2. It is the case of the appellants/claimants that the deceased Selvam died in the motor accident that occurred on 27.7.1995 involving the lorry bearing Registration No.TNW 8901 owned by the 5th respondent and insured with the New India Insurance Company, the respondents 3 and 4 in the present appeal. The accident had occurred when the deceased Selvam was riding his Scooter bearing Registration No.TCZ 8684 from East to West on the GST Road, Chennai, near Cemetry Road Junction, a Lorry bearing Registration No.TNW 8901, which was driven by the second respondent, came in the opposite direction and suddenly took a right turn in a rash and negligent manner and hit against the Scooter and as a result, the wheel of the lorry ran over the abdomen of the deceased Selvam and he died on the spot. Hence, the claim petition was filed by the claimants claiming a compensation of Rs.52,00,000/-. But in the present appeal, the claim was restricted to Rs.35,00,000/-. 3.Theclaim petition was resisted by the Insurance Company by filing a counter denying the negligence of the driver of the said lorry and thereby denying the liability of the insured and the insurer of the said vehicle. 4.In order to prove the claim, on the side of the claimants/appellants, three witnesses have been examined as P.Ws.1 to 3 and Exs.1 to 15 have been marked, whereas no witness has been examined and no documentary evidence has been marked on the side of the respondents/Insurance Company. 5. On the basis of the oral and documentary evidence, the Tribunal came to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the lorry and awarded a total compensation of Rs.15,32,055/- with 9% interest p.a. 6. Being aggrieved by the award of the Tribunal, the Claimants have filed the above appeal questioning the quantum of compensation alone. 7. Heard the learned counsel for the appellants/claimants as well as the respondents/Insurance Company. 8. Being aggrieved by the award of the Tribunal, the Claimants have filed the above appeal questioning the quantum of compensation alone. 7. Heard the learned counsel for the appellants/claimants as well as the respondents/Insurance Company. 8. The learned counsel for the appellants submitted that since the present appeal is filed for the enhancement of compensation amount, he confined his arguments only in respect of quantum of compensation awarded by the Tribunal. 9. With regard to the quantum of compensation awarded by the Tribunal, it is the contention of the learned counsel for the appellants that originally the deceased was employed in Best & Crompton Engineering Company Ltd at Madras and subsequently, he was appointed as Senior Manager at Arab-Malaysian Best & Crompton Company in Malaysia. The deceased was getting gross salary of Rs.5905/- and after deduction he was getting a net salary of Rs.4959/- as on 30.6.1994. 10. It is the further contention of the learned counsel for the appellants that the deceased was getting an employment in Malaysia on contract basis and to prove the same, Appointment order of the Deceased was marked before the Tribunal as Ex.P.4. As per Ex.P.4, the deceased got employment on contract basis in Malaysia for the period covering from 7.3.1994 to 6.9.1995 and he was paid for the said period RM.4,400/- (Ringgit). The said contract is renewable for a further period of six months from the date of expiry of the original contract period. But the deceased had died in the accident on 27.7.1995 when he came to India. At the time of his death, he was having only two months of service as per the original contract of employment. But as per the terms and conditions of the contract, the contract period is renewable for a further period of six months on the expiry of the original contract period. In such circumstances, the Tribunal while calculating the the compensation ought to have taken the renewable period of six months into consideration to determine the loss of income, whereas the Tribunal has taken into account only the two months period, which the deceased had to complete as per the original contract. 11. In such circumstances, the Tribunal while calculating the the compensation ought to have taken the renewable period of six months into consideration to determine the loss of income, whereas the Tribunal has taken into account only the two months period, which the deceased had to complete as per the original contract. 11. That apart, the learned counsel for the appellants submitted that the Tribunal while calculating the loss of income had taken a sum of Rs.12000/-as monthly income and after deducting 1/3 towards personal expenses, applied the multiplier 15 and calculated the loss of income. While doing so, the Tribunal, ought to have added 50% with the monthly income towards future prospects and ought to have made calculation on that basis. In this regard, the learned counsel for the appellants relied on the decision of the Apex Court reported in (2009) 6 SCC 121 (Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another). Therefore, the learned counsel for the appellants submitted that the amount awarded by the Tribunal has to be enhanced following the principle laid down in the said decision. 12. Per contra, the learned counsel for the respondents 3 and 4/Insurance Company submitted that the amount awarded by the Tribunal is just and proper and therefore, nothing warrants to interfere with the same and hence, the appeal may be dismissed. 13. We have considered the aforesaid submissions and perused the materials available on record. 14.Since the present appeal has been filed only questioning the quantum of compensation awarded by the Tribunal, we are not inclined to go into the finding rendered by the Tribunal regarding negligence and therefore, the finding of the Tribunal regarding negligence is confirmed. 15. The Tribunal awarded a total compensation of Rs.15,32,055/- under the following heads, which are as under:-Loss of Pecuniary Benefits: Two months salary at Malaysia : Rs. 77,055.00 Apply multiplier of 15 for Rs.8000/-permonth Rs.8000 x 12 x 15. : Rs.14,40,000.00 Loss of Consortium for the first petitioner : Rs. 5,000.00 Loss of Estate : Rs. 5,000.00 Funeral Expenses : Rs. 5,000.00 ---------------------- Total : Rs.15,32,055.00 ----------------------- 16. It is the grievance of the appellants that the deceased Selvam got an employment at Malaysia on contract basis for a period covering from 7.3.1994 to 6.9.1005. The said contractual employment can be renewed for a further period of six months. 5,000.00 Loss of Estate : Rs. 5,000.00 Funeral Expenses : Rs. 5,000.00 ---------------------- Total : Rs.15,32,055.00 ----------------------- 16. It is the grievance of the appellants that the deceased Selvam got an employment at Malaysia on contract basis for a period covering from 7.3.1994 to 6.9.1005. The said contractual employment can be renewed for a further period of six months. Since the deceased had died in the accident prior to two months before completing the original contract period, the Tribunal had calculated the income taking into account only two months salary without considering the renewable period of six months and therefore, considering the same, the income of the deceased has to be calculated. But we are of the opinion that the further period of extension is the option of the deceased and there is no evidence that the deceased had opted for extension of the contract period and therefore, in the absence of any evidence for exercising the option for extension, the contention of the learned counsel for the appellants cannot be accepted. In such circumstances, we do not find any infirmity in the calculation made by the Tribunal based on the income earned by the deceased V.Selvam from the employment on contract at the rate of 4522 Ringgit. Therefore, we are not inclined to accept the submission of the learned counsel for the appellants that the calculation has to be made at the rate of 4522 Ringgit for a further period of six months. 17.In so far as the calculation made by the Tribunal in respect of the income earned by the deceased after the contract period is concerned, though the Tribunal determined the monthly salary of the deceased at Rs.12000/-, the Tribunal ought to have added some reasonable amount towards future prospects as per the decision of the Apex Court reported in (2009) 6 SCC 121 (Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another). Considering the facts and circumstances of the case, a sum of Rs.3,000/- could be added towards future prospects. If so, the total loss of monthly income would be Rs.15,000/- (Rs.12,000/- + Rs.3,000/- = Rs.15,000/-) and 1/3 rd is deducted, namely, Rs.5,000/-, it will come to Rs.10,000/-, which is the net monthly income of the deceased. 18. Considering the facts and circumstances of the case, a sum of Rs.3,000/- could be added towards future prospects. If so, the total loss of monthly income would be Rs.15,000/- (Rs.12,000/- + Rs.3,000/- = Rs.15,000/-) and 1/3 rd is deducted, namely, Rs.5,000/-, it will come to Rs.10,000/-, which is the net monthly income of the deceased. 18. Since the age of the deceased was 40 at the time of the accident and the same is not in dispute, the multiplier to be adopted is 15 and to arrive at the total loss of income, if net monthly income of the deceased is multiplied with 12 and 15, it will come to Rs.18,00,000/- (Rs.10,000/- x 12 x 15 = Rs.18,00,000/-). Hence, the total loss of income comes to Rs.18,00,000/- but the Tribunal arrived at Rs.14,40,000/-. 19. The Tribunal determined the two months salary at Rs.77,055/- in Malaysia and the same is rounded off to Rs.78,000/-. 20. Further, the Tribunal awarded a sum of Rs.5000/-towards loss of consortium, which in our view is on the lower side and therefore, the same is enhanced to Rs.25000/-by adding a sum of Rs.20000/-. The Tribunal has not awarded any amount towards loss of love and affection in respect of the appellants 2 and 3 and considering the fact that the children were minor at the time of the accident and they lost their love and affection of their father and therefore, a sum of Rs.50000/-each is awarded towards loss of love and affection. The Tribunal has awarded a sum of Rs.5000/-towards funeral expenses, which in our view is meagre and therefore, the same is enhanced to Rs.10000/-. The Tribunal has also awarded a sum of Rs.5000/-towards loss of estate and the same is confirmed. Now, the total compensation awarded by us after modification as aforesaid, are as under:- Loss of Pecuniary Benefits: Two months salary at Malaysia : Rs. 78,000.00 Apply multiplier of 15 for Rs.10,000/- per month Rs.10,000/- x 12 x 15 : Rs.18,00,000.00 Loss of Consortium for the first petitioner : Rs. 25,000.00 Loss of Love and Affection for 2nd and 3rd appellants : Rs. 1,00,000.00 Loss of Estate : Rs. 5,000.00 Funeral Expenses : Rs. 10,000.00 ---------------------- Total : Rs.20,18,000.00 ----------------------- 21. Thus, the total compensation is awarded at Rs.20,18,000/-. 25,000.00 Loss of Love and Affection for 2nd and 3rd appellants : Rs. 1,00,000.00 Loss of Estate : Rs. 5,000.00 Funeral Expenses : Rs. 10,000.00 ---------------------- Total : Rs.20,18,000.00 ----------------------- 21. Thus, the total compensation is awarded at Rs.20,18,000/-. Since the Tribunal has awarded 9% interest p.a., we are inclined to award interest at 7.5% p.a., following the decisions of the Apex Court and this Court. Out of the said amount, the first appellant is entitled for Rs.3,18,000/- and the second and third appellants are entitled for a sum of 8,50,000/- each with accrued interest at 7.5% p.a. 22. If the respondents 3 and 4/Insurance Company already deposited the amount awarded by the Tribunal, the balance amount shall be deposited within four weeks to the credit of M.C.O.P.No.466 of 1996 on the file of the Motor Accident Claims Tribunal, Small Causes Court, Chief Judge, Chennai, from the date of receipt of a copy of this order, if not, the entire amount awarded by us with the accrued interest at 7% p.a. shall be deposited to the said credit within four weeks from the date of receipt of a copy of this order. On such deposit being made by the Insurance Company, the appellants are entitled to withdraw their respective share as aforesaid. Since the father of the deceased had died after the award was passed, no amount of compensation is awarded in this appeal. With the above directions, the appeal is allowed. However, there will be no order as to costs.