Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3151 (MAD)

New India Assurance Company Ltd. v. Sahkila Banu

2014-09-08

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment G. Chockalingam, J. 1. Being aggrieved by the award of compensation of Rs.20,35,600/-in M.C.O.P.No.1367 of 2011 on the file of Motor Accidents Claims Tribunal (Chief Judge), Court of Small Causes, Chennai, dated 02.01.2013, the New India Assurance Company Limited has filed this appeal. 2. The brief facts are as follows: On 07.06.2009 at about 14.45 hours, when the deceased Mohamed Ibrahim was riding his motor cycle bearing Registration No.TN-22-AK-3489 from east to west direction in CTH road, opposite to TVS Lucas at Padi, a lorry bearing Registration No.TN-09-M-7299, which was insured with the appellant New India Assurance Company Limited, driven by its driver in a rash and negligent manner came behind and hit the motor cycle. Due to the impact, the rider of the motorcycle namely Mohamed Ibrahim died on the spot. Alleging that the accident was due to the rash and negligent driving of the lorry driver, the claimants viz., wife, sons, daughter and parents of the deceased, have filed the claim petition claiming compensation of Rs.50 lakhs. 3. Resisting the claim petition, the appellant New India Assurance Company Limited has filed the counter stating that the accident was not due to the negligence of the lorry driver and that the quantum of compensation claimed by the claimants was on the higher side. 4. To substantiate their claim, before the Tribunal, on the side of the claimants, the father of the deceased was examined as P.W.1 and one Mr. Rahim was examined as P.W.2 and Exs.P.1 to P.15 were marked. On the side of the appellant New India Assurance Company, neither any witness was examined nor any document was marked. 5. Upon consideration of the oral and documentary evidence, the Tribunal has held that the accident had occurred due to the rash and negligent driving of the lorry driver and held that respondents 1 and 2 before the Tribunal are jointly and severally liable to pay the compensation to the claimants. Insofar as the quantum of compensation, the Tribunal has awarded a total compensation of Rs.20,35,600/- under various heads as under: Loss of pecuniary benefits Rs.19,65,600.00 Loss of consortium to the wife/first claimant Rs. 10,000.00 Loss of love and affection to the sons, daughter and parents/claimants 2 and 6 Rs. 50,000.00 Funeral expenses Rs. 10,000.00 Total Rs.20,35,600.00 6. Insofar as the quantum of compensation, the Tribunal has awarded a total compensation of Rs.20,35,600/- under various heads as under: Loss of pecuniary benefits Rs.19,65,600.00 Loss of consortium to the wife/first claimant Rs. 10,000.00 Loss of love and affection to the sons, daughter and parents/claimants 2 and 6 Rs. 50,000.00 Funeral expenses Rs. 10,000.00 Total Rs.20,35,600.00 6. Even though the learned counsel for the appellant raised a contention in the grounds of appeal that the accident had occurred due to the rash and negligent driving of the driver of the lorry bearing Registration No.TN-09-M-7299, at the argument stage, the learned counsel for the appellant has only questioned the quantum of compensation granted by the Tribunal. Hence, it is not necessary for us to refer to the manner of accident and who was responsible for the death and fastening of liability. 7. The learned counsel for the appellant New India Assurance Company Limited further contended that the Tribunal, without applying the principles of law, erroneously fixed the annual income of the deceased and failed to note that no valid document was filed by the claimants to prove the income and age of the deceased. The learned counsel for the appellant further contended that the Tribunal is erred in fixing the income of the deceased at Rs.12,000/- per month without any documents, salary certificate or employment certificate. It is further contended that the Tribunal is erred in adding 30% towards future prospects. It is further contended by the learned counsel for the appellant that the Tribunal is erred in granting a sum of Rs.10,000/- each to the claimants 2 to 6 towards loss of love and affection, a sum of Rs.10,000/-to the first claimant towards loss of consortium and a sum of Rs.10,000/- towards funeral expenses without any basis. Hence the quantum of compensation awarded by the Tribunal is on the higher side. Under the said circumstances, the learned counsel prayed that the judgment and decree passed by the Tribunal has to be modified and the compensation awarded by the Tribunal has to be reduced according to law. 8. Per contra, the learned counsel for the respondents 1 to 6/claimants contended that the Tribunal, after considering all the evidence and material documents produced on the side of the claimants, fixed the annual income of the deceased and calculated the compensation according to law. 8. Per contra, the learned counsel for the respondents 1 to 6/claimants contended that the Tribunal, after considering all the evidence and material documents produced on the side of the claimants, fixed the annual income of the deceased and calculated the compensation according to law. The learned counsel for the respondents 1 to 6/claimants further contended that the Tribunal has awarded only a meager amount towards loss of consortium, loss of love and affection and for funeral expenses and therefore, the learned counsel for the respondents 1 to 6/claimants prayed that the compensation awarded by the Tribunal under the above heads has to be enhanced according to law. 9. After hearing the elaborate arguments made on either side, the following points arise for consideration in this appeal:- 1. Whether the Tribunal has correctly awarded the compensation or not?; and 2. What other reliefs that the claimants are entitled to? 10. It is not necessary for us to refer to the manner of accident, who was responsible for the death and fastening of liability since those findings are not under challenge. Only the quantum of compensation awarded is under challenge. 11. Learned counsel for the respondents 1 to 6/claimants has relied upon a decision of the Hon'ble Apex Court in the case of Smt.Sarla Verma and Others Vs. Delhi Transport Corporation and another reported in [ (2009)6 SCC 121 ], wherein it has been held as follows:- “24. In Susamma Thomas, (1994)2 SCC 176 : 1994 SCC (Cri)335, this Court increased the income by nearly 100%, in Sarla Dixit (1996)3 SCC 179 , the income was increased only by 50% and in Abati Bezbaruah (2003)2 SCC 148 : 2003 SCC (Cri) 746, the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. (Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. 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. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. 30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, (1996)4 SCC 362 , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third(1/3rd) where the number of the dependent family members is 2 to 3,one-fourth(1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of the dependent family members exceeds six. 50. In addition, the claimants will be entitled to a sum of Rs.5000 under the head of “loss of estate” and Rs.5000 towards funeral expenses. The widow will be entitled to Rs.10,000/- as loss of consortium. Thus, the total compensation will be Rs.8,84,870. After deducting Rs.7,19,624 awarded by the High Court, the enhancement would be Rs.1,65,246.” 12. The learned counsel for the respondents 1 to 6/claimants has relied upon a decision of the Hon'ble Apex Court reported in 2013 ACJ 2544 [Minu Rout and another V. Satya Pradyumna Mohapatra and others], wherein at paragraph No.13, the Hon'ble Apex Court has held as follows:- "13. Appellants claimed compensation under the heading of loss of dependency as they were all dependent on the earnings of the deceased Susil Rout. It is an undisputed fact that Susil Rout was working as a driver of the car which is a skilled job. Appellants claimed compensation under the heading of loss of dependency as they were all dependent on the earnings of the deceased Susil Rout. It is an undisputed fact that Susil Rout was working as a driver of the car which is a skilled job. Appellants have stated in the claim petition and in the evidence of PW-1 that the deceased was earning Rs.5,000/- per month. The oral evidence of PW-1 is not accepted by the Tribunal, solely for the reason that the appellants did not produce documentary evidence to prove the monthly salary of the deceased as Rs.5,000/- per month as claimed by them. However, it had taken monthly income of the deceased at Rs.3,000/-, for the purpose of determining the multiplicand. Out of Rs.3,000/- p.m., 1/3rd amount was deducted towards personal expenses of the deceased and arrived at Rs.3,84,000/- for loss of dependency. Out of that compensation, 50% was deducted towards contributory negligence on the part of the deceased and Rs.1,92,000/-was awarded under the above heading. The compensation awarded by the Tribunal is approved by the High Court, which is not only erroneous in law but also suffers from error in law. The Tribunal ought to have taken the salary of the deceased driver at Rs.6,000/- by taking judicial notice of the fact that the post of a driver is a skilled job. Though the claim of the Appellants is Rs.5,000/-as monthly salary of the deceased for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased should have been taken at Rs.6,000/-per month by the Tribunal for awarding just and reasonable compensation, which is the statutory duty of the Tribunal and the Appellate Court. In view of the law laid down by this Court in Santosh Devi v. National Insurance Co. Ltd. 2012 ACJ 1428 (SC), 30% towards future prospects of the deceased should be added to the monthly income. If 30% is added to the monthly income, it would amount to Rs.7,800/- p.m." 13. In this case, the Tribunal has fixed the income of the deceased at Rs.12,000/- per month. But no document such as salary certificate or bank statement was produced on the side of the claimants even though the deceased was previously employed abroad. But only the driving license and employer pass were produced on the side of the claimants. In this case, the Tribunal has fixed the income of the deceased at Rs.12,000/- per month. But no document such as salary certificate or bank statement was produced on the side of the claimants even though the deceased was previously employed abroad. But only the driving license and employer pass were produced on the side of the claimants. The deceased returned to India and at the time of death, he was working in India. Hence, the income derived by the deceased in India alone has to be taken for calculating the compensation. According to the learned counsel for the respondents/claimants, after returning to India, the deceased purchased a share auto and earned a sum of Rs.50,000/-per month. To prove the same, there is no documentary evidence produced on the side of the claimants. Hence, the argument of the learned counsel for the appellant that the income fixed by the Tribunal is on the higher side is acceptable. We are of the considered view that the income of the deceased has to be fixed at Rs.7,000/-per month and the compensation has to be calculated on that basis alone. In the present case, the age of the deceased at the time of death is 41 years and he is a share auto driver and the post of driver is a skilled job. Considering the above circumstances and in view of the principles of law laid down by the Hon'ble Apex Court in the decision reported in 2013 ACJ 2544 [Minu Rout and another V. Satya Pradyumna Mohapatra and others] cited supra, 30% towards future prospects of the deceased should be added to the monthly income. Since there are six claimants, the Tribunal has correctly deducted 1/4 amount towards personal expenses of the deceased and the same is acceptable. Further, since the age of the deceased is only 41 years, according to the principles of law laid down in the case of Smt.Sarla Verma and Others Vs. Delhi Transport Corporation and another reported in (2009(2) TNMAC 1), the multiplier adopted by the Tribunal as 14 is acceptable. Under the head of loss of consortium to the wife/first claimant, the Tribunal has awarded a sum of Rs.10,000/- which is enhanced to Rs.50,000/-. Towards loss of love and affection to the claimants 2 to 6, the Tribunal has awarded a sum of Rs.50,000/- which is enhanced to Rs.1,00,000/-. Under the head of loss of consortium to the wife/first claimant, the Tribunal has awarded a sum of Rs.10,000/- which is enhanced to Rs.50,000/-. Towards loss of love and affection to the claimants 2 to 6, the Tribunal has awarded a sum of Rs.50,000/- which is enhanced to Rs.1,00,000/-. The Tribunal has awarded a sum of Rs.10,000/- towards funeral expenses which is reasonable and therefore, there is no necessity to modify the same. 14. Thus, in the above said circumstances, we are of the considered view that the compensation has to be re-assessed as follows:- S.No Heads Calculation (1) Annual Income [Rs.7,000/- x 12] Rs. 84,000.00 (2) Add: 30% towards future prospects [Rs.84,000/- + Rs.25,200/-] Rs. 1,09,200.00 (3) Less:1/4th deducted towards personal expenses of the deceased. [Rs.1,09,200/- – Rs.27,300/-] Rs. 81,900.00 (4) Compensation after multiplier of 14 is applied [Rs.81,900/- x 14] Rs. 11,46,600.00 (5) Loss of Consortium to the wife Rs. 50,000.00 (6) Loss of Love & Affection to the claimants 2 to 6 [each Rs.20,000/-] Rs. 1,00,000.00 (7) Funeral Expenses Rs. 10,000.00 Total Compensation Awarded [4+5+6+7] Rs.13,06,600.00 Rounded off Rs.13,07,000.00 The point Nos.1 and 2 are answered accordingly. 15. In the result, the Civil Miscellaneous Appeal is allowed in part and the award passed by the Tribunal in M.C.O.P.No.1367 of 2011 is modified and the compensation of Rs.20,35,600/-awarded by the Tribunal is reduced to Rs.13,07,000/-. The reduced compensation is payable with interest at the rate of 7.5% per annum along with proportionate costs awarded by the Tribunal. The reduced compensation shall be apportioned amongst the claimants as per the ratio ordered by the Tribunal. The share amount of the minor claimants 2 to 4 shall be invested in any one of the nationalized banks till they attain majority. No costs in this appeal. Consequently, connected Miscellaneous Petition is closed. 16. The appellant New India Assurance company Limited is directed to deposit the modified compensation amount along with accrued interest within a period of four weeks from the date of receipt of a copy of this judgment, after deducting the amount already deposited, if any.