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Madras High Court · body

2014 DIGILAW 3207 (MAD)

Deepa v. U. Hussain

2014-09-10

R.SUBBIAH

body2014
Judgment : 1. Not being satisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, (I Additional District Judge), Salem, in and by an award dated 21.3.2014 made in M.C.O.P.No.486 of 2008, the claimants have filed the present appeal, seeking enhancement of the compensation amount. 2. Appellants are the claimants before the Tribunal. They are wife, minor daughter, minor sons and mother of the deceased C.Velayutham respectively. 3. It is the case of the claimants before the Tribunal that, on 30.1.2008 at about 9.45 p.m., when the deceased C.Velayutham was riding his motor bike bearing registration No.TN-30-U-6737 near Line Medu-Fashion Embroidery Shop, within the Annadhanapatty Police Limits, a TATA Recovery lorry bearing registration No.TN-01-F-5808 came from the opposite direction in a rash and negligent manner and dashed against the two wheeler, due to which, he was thrown away from the two wheeler and died on the spot. Hence, his wife, children and mother made a claim, claiming a sum of Rs.25,00,000/- as compensation. 4. The said claim was resisted by the third respondent insurance company stating that at the time of accident, the driver of the lorry was under the influence of alcohol and he had also not possessed with any valid driving licence to drive the recovery van. Therefore, there is violation of policy conditions and hence, the insurance company is not liable to pay the compensation amount. That apart, the insurance company has also taken a defence that the claim of Rs.25,00,000/- is extremely on the higher side. Thus, they sought for the dismissal of the claim petition. 5. In order to prove the claim, on the side of the claimants, the wife of the deceased examined herself as P.W.1, besides examining one D.Tamilselvan, an eye witness to the occurrence, as P.W.2 and one M.Nagarajan as P.W.3 marked 14 documents as Exs.P.1 to P.14. On the side of the insurance company, one Selladurai was examined as R.W.1, one K.Sekar was examined as R.W.2, one P.Selvaraj was examined as R.W.3 and one Sadhiq Basha, the driver of the lorry was examined as R.W.4 and four documents were marked as Exs.R.1 to R.4. 6. On the side of the insurance company, one Selladurai was examined as R.W.1, one K.Sekar was examined as R.W.2, one P.Selvaraj was examined as R.W.3 and one Sadhiq Basha, the driver of the lorry was examined as R.W.4 and four documents were marked as Exs.R.1 to R.4. 6. The Tribunal, after analysing the entire evidence, both oral and documentary, has come to the conclusion that the accident was the result of rash and negligent driving of the driver of the TATA Recovery lorry bearing registration No.TN-01-F-5808 insured with the third respondent insurance company. By coming to such a conclusion, the Tribunal has made calculation under different heads and awarded a sum of Rs.20,30,352/-as compensation and directed the third respondent insurance company to pay the same. Being not satisfied with the said quantum of compensation, the claimants have filed the present appeal, seeking enhancement of the compensation amount. 7. Since the present appeal has been filed only questioning the quantum of compensation, I am not dealing with the other aspects of the award. 8. So far as the quantum of compensation is concerned, it is the case of the claimants before the Tribunal, that the deceased was a Grade-I Police Constable and he was receiving a sum of Rs.12,000/- per month as salary. In order to prove the income of the deceased, one Nagarajan, who was working as Superintendent in the office of the Commissioner of Police, Salem City, was examined as P.W.3 and the salary certificate of the deceased was marked as Ex.P.13 and the copy of the first page of the Service Register of the deceased was marked as Ex.P.14. But, the Tribunal, by considering the evidence of P.W.3 and Exs.P.13 and P.14, has fixed the monthly income of the deceased as Rs.10,106/- and arrived at a sum of Rs.1,21,272/- as annual loss of income. Further, by adding 50% of the income towards future prospects, the Tribunal has arrived at a sum of Rs.1,81,908/- as annual loss of income (Rs.1,21,272/- (+) Rs.6,063/-). Thereafter, by deducting 1/3rd amount towards the personal expenses of the deceased and by applying the multiplier of 16, as per the dictum laid down by the Hon'ble Apex Court in the decision reported in 2009 ACJ 1298 - Sarla Verma and other v. Delhi Transport Corporation and another, has arrived at a sum of Rs.19,40,352/- under the head of loss of income. Besides, the Tribunal has awarded a sum of Rs.10,000/- towards transportation, a sum of Rs.20,000/- towards loss of consortium, a sum of Rs.10,000/- towards funeral expenses, a sum of Rs.10,000/-each to claimants 2 to 4 under the head of loss of love and affection and a sum of Rs.20,000/-towards loss of estate. Thus, the Tribunal has awarded a total sum of Rs.20,30,352/- as compensation. Not being satisfied with the said quantum of compensation, the claimants have filed the present appeal. 9. It is the main submission of the learned counsel appearing for the claimants that the claimants are five in number and hence, the Tribunal ought to have deducted only 1/4th amount from the monthly income towards the personal expenses of the deceased, whereas the Tribunal has deducted 1/3rd amount towards personal expenses. Therefore, by deducting 1/4th amount towards the personal expenses of the deceased, the amount awarded by the Tribunal under the head of loss of income has to be enhanced. 10. Per contra, learned counsel appearing for the third respondent insurance company has submitted that at the time of accident, the deceased was receiving a sum of Rs.10,106/-as monthly income and if 50% of the said amount is added towards future prospects, the total monthly income works out to Rs.15,159/-and if so calculated, the annual income works out Rs.1,81,908/-. Therefore, it would be appropriate to deduct 10% of the said amount towards income tax. But, the Tribunal has not deducted any amount towards income tax. If so deducted, there will not be any need to enhance the compensation amount awarded by the Tribunal. Thus, he sought for the dismissal of the appeal. 11. By way of reply, the learned counsel appearing for the claimants submitted that in the salary certificate marked on the side of the claimants as Ex.P.13, there is no reference with regard to the deduction of amount towards income tax. When there is no reference in the salary certificate issued by the employer of the deceased with regard to deduction of the amount towards income tax, the presumption would be, at the time of payment of salary, the employer already deducted income tax on the estimated income of the employee from the salary. When there is no reference in the salary certificate issued by the employer of the deceased with regard to deduction of the amount towards income tax, the presumption would be, at the time of payment of salary, the employer already deducted income tax on the estimated income of the employee from the salary. Hence, in the absence of any oral evidence on the side of the insurance company regarding the non-deduction of the income tax, absolutely, there is no need to deduct 10% of the monthly income towards income tax. In support of this contention, learned counsel appearing for the claimants relied upon the decision of the Hon'ble Apex Court reported in 2013 (1) TN MAC 641 (SC) - Vimal Kanwar & others v. Kishore Dan & others. 12. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record. 13. On a perusal of the materials available on record, I find that in the salary certificate produced on the side of the claimants, no reference was made with regard to income tax deduction, though other deductions were mentioned. In this regard, it would be useful to refer the decision of the Hon'ble Apex Court reported in 2013 (1) TN MAC 641 (SC) -Vimal Kanwar & others v. Kishore Dan & others, wherein, in paras 22 and 23, it has been held as follows:- "22. In the present case, none of the respondents brought to the notice of the Court that the income-tax payable by the deceased Sajjan Singh was not deducted at source by the employer State Government. No such statement was made by Ram Avtar Parikh, PW2, an employee of Public Works Department of the State Government who placed on record the Last Pay Certificate and the Service Book of the deceased. The Tribunal or the High Court on perusal of the Last Pay Certificate, have not noticed that the Income-tax on the estimated income of the employee was not deducted from the salary of the employee during the said month or Financial Year. In the absence of such evidence, it is presumed that the salary paid to the deceased Sajjan Singh as per Last Pay Certificate was paid in accordance with law i.e., by deducting the Income-tax on the estimated income of the deceased Sajjan Singh for that month or the Financial Year. In the absence of such evidence, it is presumed that the salary paid to the deceased Sajjan Singh as per Last Pay Certificate was paid in accordance with law i.e., by deducting the Income-tax on the estimated income of the deceased Sajjan Singh for that month or the Financial Year. The appellants have specifically stated that Assessment Year applicable in the instant case is 1997-1998 and not 1996-1997 as held by the High Court. They have also taken specific plea that for the Assessment Year 1997-1998 the rate of tax on income more than 40,000/- and upto Rs.60,000/- was 15% and not 20% as held by the High Court. The aforesaid fact has not been disputed by the respondents. 23. In view of the finding as recorded above and the provisions of the Income-tax Act, 1961, as discussed, we hold that the High Court was wrong in deducting 20% from the salary of the deceased towards income-tax, for calculating the compensation. As per law, the presumption will be that employer - State Government at the time of payment of salary deducted income-tax on the estimated income of the deceased employee from the salary and in the absence of any evidence, we hold that the salary as shown in the Last Pay Certificate at Rs.8,920/- should be accepted which if rounded off comes to Rs.9,000/-for calculating the compensation payable to the dependent(s)." As per the dictum laid down by the Hon'ble Apex Court in the decision cited supra, I am of the opinion, there is no need to deduct 10% of the monthly income towards income tax, since in the pay certificate, no reference was made with regard to the income tax deduction. Therefore, it has to be presumed that at the time of payment of salary, the income tax on the estimated income of the deceased has already been deducted. In other words, a sum of Rs.10,106/- mentioned in the salary certificate of the deceased, is the amount mentioned by the employer after deducting the income tax. Therefore, I am of the opinion, 10% of the monthly income of the deceased need not be deducted in this case towards income tax. 14. Further, on a perusal of the records, I find that the Tribunal, while calculating compensation under the head of loss of income, has deducted 1/3rd amount towards the personal expenses of the deceased. Therefore, I am of the opinion, 10% of the monthly income of the deceased need not be deducted in this case towards income tax. 14. Further, on a perusal of the records, I find that the Tribunal, while calculating compensation under the head of loss of income, has deducted 1/3rd amount towards the personal expenses of the deceased. When the claimants are five in number, the Tribunal ought to have deducted only 1/4th amount. Hence, the amount awarded by the Tribunal needs proper modification. If a sum of Rs.10,106/- is taken as monthly income of the deceased, by adding 50% of the monthly income towards future prospects, the annual loss of income works out to Rs.1,81,908/-. After deducting 1/4th amount towards personal expenses of the deceased, it works out to Rs.1,36,431/-(Rs.1,81,908/- (-) Rs.45,477/-). If 16 multiplier is applied, the total loss of income works out Rs.21,82,896/-. Hence, a sum of Rs.19,40,352/-awarded by the Tribunal under the head of loss of income is hereby enhanced to Rs.21,82,896/-. Further, I find that the Tribunal has awarded only a sum of Rs.10,000/- each to claimants 2 to 4 under the head of loss of love and affection. Considering the fact that the minors have lost their father at their tender age, a sum of Rs.20,000/- each is hereby awarded under the head of loss of love and affection to claimants 2 to 4, totalling a sum of Rs.60,000/-. Further, I find that the Tribunal has not awarded any amount under the head of loss of love and affection to the mother of the deceased / fifth claimant. Hence, a sum of Rs.20,000/- is hereby awarded under the head of loss of love and affection to the fifth claimant. Except this modification, the amount awarded by the Tribunal under the other heads remains unaltered. The break up details are as follows:- Loss of income : Rs.21,82,896/- Love and affection : Rs. 80,000/- Transportation : Rs. 10,000/- Loss of consortium : Rs. 20,000/- Loss of estate : Rs. 20,000/- Funeral : Rs. 10,000/- Total : Rs.23,22,896/- rounded off to Rs.23,25,000/- Thus, a sum of Rs.20,30,352/- awarded by the Tribunal as total compensation is hereby enhanced to Rs.23,25,000/- and the same is payable with interest at the rate of 7.5% per annum. 15. 80,000/- Transportation : Rs. 10,000/- Loss of consortium : Rs. 20,000/- Loss of estate : Rs. 20,000/- Funeral : Rs. 10,000/- Total : Rs.23,22,896/- rounded off to Rs.23,25,000/- Thus, a sum of Rs.20,30,352/- awarded by the Tribunal as total compensation is hereby enhanced to Rs.23,25,000/- and the same is payable with interest at the rate of 7.5% per annum. 15. In the result, the amount awarded by the Tribunal i.e., Rs.20,30,352/- is hereby enhanced to Rs.23,25,000/- and the civil miscellaneous appeal is partly allowed. No costs. 16. In view of the enhancement of compensation amount, the third respondent insurance company is directed to deposit the entire compensation amount including the enhanced amount, after deducting the amount, if any, that has already been deposited by them, with proportionate interest at the rate of 7.5% per annum, from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.486 of 2008 on the file of the Motor Accidents Claims Tribunal (I Additional District Judge), Salem. On such deposit, the wife of the deceased / the first claimant is entitled for a sum of Rs.10,00,000/- and the minor children of the deceased / the claimants 2 to 4 are entitled for a sum of Rs.4,00,000/- each and the mother of the deceased / the fifth claimant is entitled for a sum of Rs.1,25,000/-and claimants 1 and 5 are permitted to withdraw their respective shares along with interest, less the amount, if any, that has already been withdrawn by them. So far as the minor claimants are concerned, the Tribunal is directed to deposit the same in any one of the Nationalised Bank till they attain majority and the first claimant, as the mother of claimants 2 to 4, is permitted to withdraw interest once in three months from the deposited amount.