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2012 DIGILAW 4662 (MAD)

New India Assurance Co. Ltd. v. Subbarayalu

2012-11-09

P.P.S.JANARTHANA RAJA

body2012
JUDGMENT 1. The Civil Miscellaneous Appeal is filed by the appellant Insurance Company against the judgment and decree dated 27.08.2008 made in M.C.O.P.No.11 of 2007 on the file of Motor Accident Claims Tribunal (Subordinate Judge) at Udumalpet. 2. The background facts in a nutshell are as under:- The deceased Manikandan met with motor traffic accident on 31.10.2006 at 12 noon. The said deceased was riding his motor cycle Hero Honda on Pollachi Main Road. At that time, a mini bus driven by its driver in a rash and negligent manner dashed against the deceased. He died on the spot. The claimants are father, mother and brother of the deceased. They claimed compensation of Rs.20,00,000/-. On pleadings, the Tribunal dealt with the following issue:- Whether the claimants are entitled to compensation ? If they are entitled to what is the quantum ? 3. After considering the oral and documentary evidence let in by both sides, the Tribunal held that due to rash and negligent driving of the mini bus driver, the accident had occurred and awarded compensation of Rs.13,90,000/- and the details of the compensation are as follows:- 1. Loss of Income - Rs.13,60,000/- 2. Loss of love and affection – Rs. 30,000/- Aggrieved by the said award, the appellant/Insurance Company filed the present civil miscellaneous appeal. 4. Learned counsel appearing for the appellant/Insurance Company questioned only the quantum of the compensation and vehemently argued that the Award passed is without basis. He further argued that the Tribunal had taken Rs.10,000/- as salary of the deceased, however, there is no proper evidence in the record to show that the deceased was earning Rs.10,000/- and that he was working as Manager in his Uncle's hotel. He further submitted that the Tribunal adopted 17 multiplier, which is also not in accordance with law. He thus submitted that the award passed by the Tribunal is not in accordance with law and the same may be set aside. 5. Learned counsel for the respondents 1 to 3/claimants submitted that the Tribunal considered all the facts and circumstances of the case and passed the award and the same is fair and reasonable. He further argued that the award is based on valid material evidence and as such, the same may be confirmed. 6. Heard the learned counsel on either side and perused the documents available on record. 7. He further argued that the award is based on valid material evidence and as such, the same may be confirmed. 6. Heard the learned counsel on either side and perused the documents available on record. 7. On behalf of the claimants, father of the deceased viz., Subbarayalu was examined as P.W.1. One Rangan was examined as P.W.2, who is the eye witness to the accident. One Rajendran was examined as P.W.3, who is the maternal uncle and the owner of the hotel, in which deceased was working. Exhibits P.1 to P.12 were marked on the side of claimants. Ex.P.1 is First Information Report. Ex.P.2 is Charge Sheet. Exs.P.3 and 4 are Motor Vehicle Inspector's Report. Ex.P.5 is Post Mortem Report. Ex.P.6 is B.Sc., Mark Sheet of Manikandan. Ex.P.7 is the transfer certificate of Manikandan. Ex.P.8 is Salary Certificate. Ex.P.9 is photograph. Ex.P.10 is the driving licence of Manikandan. Ex.P.11 is Legal Heir Certificate. Ex.P.12 is the death certificate of Manikandan. On behalf of the Insurance Company, no one was examined and no documentary evidence was marked. The Tribunal after considering the oral and documentary evidence held that the accident had occurred only due to the negligent driving of the mini bus driver, which finding is based on valid material and evidence and hence, the same stands confirmed. 8. The Apex Court in the case of Santosh Devi Vs. National Insurance Co. Ltd., and others reported in 2012 ACJ 1428, considered the scope of the compensation relating to the fatal cases and held as follows: "14. We find it extremely difficult to fathom any rationale for the observation made in the judgment in Sarla Verma's case, 2009 ACJ 1298 (SC), that where the deceased was self employed or was on a fixed salary without provision for annual increment, etc, the courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is self employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. Rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. Rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the familities of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of a Class IV employee of the government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of Rs.1,00,000/-. Although the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching clothes. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of para 11 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Therefore, we do not think that while making the observations in the last three lines of para 11 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." 9. After considering the principles enunciated in the judgment cited supra, let me consider the facts of the present case. The age of the deceased was 22 years at the time of the accident. Ex.P.6 is the B.Sc., Mark Sheet and Ex.P.5 is Post Mortem Report. In both the certificates, the age of the deceased is stated to be 22 years and hence, the Tribunal correctly taken the age of deceased as 22 years. In respect of the income of the deceased, the Tribunal examined P.W.3, who is the maternal uncle of the deceased. In his examination, he has stated that the deceased was working in his hotel as Manager and he was paid a sum of Rs.10,000/-and Ex.P.8 is the salary certificate. Learned counsel appearing for the appellant vehemently contended that the said hotel is in Udumalpet and P.W.2 is the maternal uncle of the deceased and it is stated that in Udumalpet, salary of Rs.10,000/-given to the Manager in a hotel is not in reality. It is further stated that however, no details were available regarding the nature of the hotel, turnover of the hotel and the salary ledger of the employees of the hotel. Further, the hotel is run by the maternal uncle of the deceased and no proper evidence is available. In view of the above submission and that there is no evidence available on record in support of monthly salary of the deceased as Rs.10,000/-, this Court is of the view that a sum of Rs.6,000/- can be taken as the monthly salary of the deceased as against Rs.10,000/-. In view of the above submission and that there is no evidence available on record in support of monthly salary of the deceased as Rs.10,000/-, this Court is of the view that a sum of Rs.6,000/- can be taken as the monthly salary of the deceased as against Rs.10,000/-. Out of Rs.6,000/-, 1/3rd has to be deducted for the personal expenses of the deceased and balance of a sum of Rs.4,000/-is taken as monthly contribution to the family and per annum, it works out to Rs.48,000/-. Thus, rounding off the said sum, Rs.50,000/- is taken as the monthly contribution of the deceased towards his family. The Tribunal adopted the multiplier of 17. After taking into consideration the facts that the deceased was a bachelor and there is a brother of him and hence, it is reasonable to adopt multiplier of 15. Thus, as against multiplier of 17, multiplier of 15 is taken as the correct multiplier. Thus, the loss of income is Rs.50,000/- x 15 = Rs.7,50,000/-as against Rs.13,60,000/-. Further, the Tribunal awarded Rs.30,000/-towards loss of love and affection for the three claimants, which in my considered view is fair and reasonable and hence, the same stands confirmed. However, the Tribunal has not awarded any sum towards funeral expenses and transport expenses. Hence, a sum of Rs.10,000/-is awarded towards transport expenses and a sum of Rs.10,000/-is awarded towards funeral expenses. Thus, the modified compensation granted by this Court to the claimants is as follows:- Rs.8,00,000/- with interest at 7.5% per annum. 10. This Court by order dated 11.06.2009 directed the appellant/Insurance Company to deposit a sum of Rs.8,00,000/- and also permitted claimants 1 and 2/father and mother of the deceased to withdraw a sum of Rs.4,00,000/-each on such deposit. In view of the same, this Court directs the appellant/Insurance Company to deposit the modified compensation amount of Rs.8,00,000/-with interest at 7.5% per annum, less the amount already deposited within a period of eight weeks from the date of receipt of copy of the order. On such deposit, the third claimant/third respondent is entitled to withdraw the amount as apportioned by the Tribunal and the balance sum shall be withdrawn by claimants 1 and 2/father and mother of the deceased in equal share. 11. The Civil Miscellaneous Appeal is partly allowed with the above modification. No costs.