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2014 DIGILAW 488 (MAD)

DEVI v. P. RAVICHANDRAN

2014-02-25

R.MAHADEVAN

body2014
JUDGMENT : R. Mahadevan, J. This appeal has been filed by the claimants against the award dated 31.3.2010 passed by the Motor Accidents Claims Tribunal (Principal District Judge), Erode in M.C.O.P. No. 523 of 2006 for enhancement. The claimant No. 1 is the wife, the claimant No. 2 is the minor daughter and the claimant No. 3 is the mother of R. Durairaj, who died in the fatal accident that occurred on 22.4.2006. The case of the claimants was that R. Durairaj, who was walking along the Erode-Karur Main Road at the extreme left side of the road, was hit by the vehicle of the respondent No. 2 driven by the respondent No. 1 from behind and the vehicle ran over him as a result of which R. Durairaj died on the spot. The claim petition was filed seeking a compensation of Rs. 15,00,000 under various heads alleging, inter alia, that the accident occurred due to rash and negligent driving of the respondent No. 1. 2. The claim was contested by the respondent Nos. 1 and 3. The respondent No. 1 contended that the deceased, who was drunk, fell in front of the vehicle and in any case, since the vehicle was insured, only the respondent No. 3 would be liable to pay compensation. The respondent No. 1 also disputed the age and income of the deceased. The respondent No. 3 contested the claim alleging that the deceased was responsible for the accident as he suddenly attempted to cross the road without noticing the van coming behind him. The respondent No. 3 also disputed the age and income of the deceased. The Tribunal, after considering the oral as well as documentary evidence, has partly allowed the claim petition by awarding a compensation of Rs. 7,24,900 with costs and interest at 7.5 per cent per annum. Aggrieved, claimants have filed the appeal seeking enhancement by Rs. 4,00,000. 3. The counsel for the appellants contended that the Claims Tribunal erred in fixing the monthly income at Rs. 3,450 contrary to the documentary evidence and oral evidence of PW 3 and PW 4. Learned counsel also claimed that the Tribunal erred by not granting any compensation towards future prospects, loss to estate and mental agony. 4. 4,00,000. 3. The counsel for the appellants contended that the Claims Tribunal erred in fixing the monthly income at Rs. 3,450 contrary to the documentary evidence and oral evidence of PW 3 and PW 4. Learned counsel also claimed that the Tribunal erred by not granting any compensation towards future prospects, loss to estate and mental agony. 4. Per contra, learned counsel for the respondent No. 3 has contended that the award passed by the Tribunal is just and warrants no interference with regard to quantum. Learned counsel also invited the attention of this court to contend that the deceased was negligent while crossing the road and, therefore, Claims Tribunal must have proportionately reduced the award for 'contributory negligence'. 5. Heard the counsel for the appellants and the counsel for the respondent No.3. The respondent Nos.1 and 2 were given up. The records from the Tribunal were called for and perused. 6. With regard to negligence, the Claims Tribunal has, after evaluating the oral as well as documentary evidence, held the respondent No. 1 to be responsible for the accident. Upon perusal of the records, this court finds that there is nothing perverse in the findings and the Tribunal was right in holding that the respondent No. 1 was responsible for the accident. 7. The Tribunal has discarded Exhs. P12 and P14 and the evidence of PW 3 and PW 4 regarding the income of the deceased holding that in the absence of salary disbursement register or any other register, the evidence of PW 3 and PW 4 cannot be accepted. The Tribunal also proceeded further to record that inquest report marked as P5 does not reflect that he was working either under PW 3 or PW 4. But upon perusal of the inquest report, there is a specific finding in the inquest report that the deceased was employed as a Cable TV operator. Therefore, the Tribunal ought not to have rejected the evidence of PW 3 and instead ought to have fixed the salary at Rs. 6,600 per month. 8. Chapter XI of the Motor Vehicles Act is a social welfare legislation. The purpose is to award a 'just' compensation by considering the earning capacity of the deceased as if he had not met with the accident. Upon perusal of the award, it could be seen that no compensation has been awarded for loss of future prospects. 8. Chapter XI of the Motor Vehicles Act is a social welfare legislation. The purpose is to award a 'just' compensation by considering the earning capacity of the deceased as if he had not met with the accident. Upon perusal of the award, it could be seen that no compensation has been awarded for loss of future prospects. It is settled law that the Tribunal and the courts have powers to enhance the compensation to ensure that the compensation is just. Even in the judgment reported in Rajesh and Others Vs. Rajbir Singh and Others, (2013) 9 SCC 54 , the Supreme Court has reiterated the same. 9. With regard to future prospects, the Apex Court in Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) 6 SCC 421 , has 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 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. The 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 families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. 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 families 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 the salary of a class IV employee of the government would be in five figures and the total emoluments of those in higher echelons of service will cross the figure of rupees one lakh. 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 on 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. 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. 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. (15) It is also not possible to approve the view taken by the Tribunal which has been reiterated by the High Court albeit without assigning reasons that the deceased would have spent 1/3rd of his total earnings, i.e., Rs. 500, towards his personal expenditure. It seems that the Presiding Officer of the Tribunal and the learned single Judge of the High Court were totally oblivious of the hard realities of the life. It will be impossible for a person whose monthly income is Rs. 1,500 to spend 1/3rd on himself leaving 2/3rd for the family consisting of five persons. Ordinarily, such a person would, at best, spend 1/10th of his income on himself or use that amount as personal expenses and leave the rest for his family. (16) The Tribunal's observation that the two sons of the appellant cannot be treated dependent on their father because they were not minor is neither here nor there. In the cross-examination of the appellant, no question was put to her about the source of sustenance of her two sons. Therefore, there was no reason for the Tribunal to assume that the sons, who had become major, can no longer be regarded dependent on the deceased. (17) In the result, the appeal is allowed, the impugned judgment as also the award of the Tribunal are set aside and it is declared that the claimants shall be entitled to compensation of Rs.2,94,840 [Rs.1,500 + 30 per cent of Rs.1,500 = Rs.1,950 less 1/10th for personal expenses = Rs. 1,755 x 12 x 14 = Rs. 2,94,840]. The claimants shall also be entitled to Rs. 5,000 for transportation of the body, Rs. 10,000 towards funeral expenses and Rs. 10,000 in lieu of loss of consortium. Thus, the total amount payable to the claimants will come to Rs.3,19,840. The enhanced amount of compensation, i.e., Rs.1,42,340 (Rs.3,19,840 Rs.1,77,500) shall carry interest of 7 per cent from the date of application till realization. 5,000 for transportation of the body, Rs. 10,000 towards funeral expenses and Rs. 10,000 in lieu of loss of consortium. Thus, the total amount payable to the claimants will come to Rs.3,19,840. The enhanced amount of compensation, i.e., Rs.1,42,340 (Rs.3,19,840 Rs.1,77,500) shall carry interest of 7 per cent from the date of application till realization. (18) Respondent No. 1 insurance company is directed to pay to the appellant the total amount of compensation within a period of three months by getting prepared a demand draft in her name which shall be delivered to her at the address given in the claim petition filed before the Tribunal. While doing so, respondent No. 1 shall be free to deduct the amount already paid to the appellant." 10. Following the above judgment, the Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, (2013) 9 SCC 54 , has held that there must be an addition of 50 per cent to the income in cases where the age of the deceased is below 40 years. 11. The deceased was only 29 at the time of accident. He must have had many dreams in his life. His family had grown by the birth of his daughter. He certainly would not have spent his entire life with the same income of Rs. 6,600 per month. Hence, the claimants are entitled to addition of 50 per cent on the last drawn salary while computing the compensation for the loss of earnings. 12. The next point is the multiplier. The Tribunal has considered the age of the claimants and on the average, fixed the multiplier at 16. The age of the deceased was 29 years and the multiplier applicable to persons of that age is 17 as per the dictum of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 . The provisions of Motor Vehicles Act, being a social welfare legislation, the highest multiplier is to be considered for awarding compensation. 13. In the judgment reported in Amrit Bhanu Shali and Others Vs. National Insurance Co. Delhi Transport Corporation and Another, (2009) 6 SCC 121 . The provisions of Motor Vehicles Act, being a social welfare legislation, the highest multiplier is to be considered for awarding compensation. 13. In the judgment reported in Amrit Bhanu Shali and Others Vs. National Insurance Co. Ltd. and Others, (2012) 11 SCC 738 , the Apex Court has, while dealing with the adoption of multiplier regarding deceased bachelors, held as follows: "(17) Selection of multiplier is based on the age of the deceased and not on the basis of the age of dependant. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of dependants has no nexus with the computation of compensation. (18) In the case of Sarla Verma (supra), this court held that the multiplier to be used should be as mentioned in column (4) of the Table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13." 14. Considering the dictum of the Supreme Court in the judgment referred above and the age of the deceased, the multiplier of 17 is fixed. 15. With regard to the compensation towards loss of consortium, the appellant No. 1 was only 28 at the time of accident. For the rest of her life, she has to live without the companionship of the deceased. Considering the same, the compensation for loss of consortium for the respondent No. 1 is increased by further Rs. 25,000. 16. With regard to loss of love and affection, as stated above the appellant No. 1 was only 28 at the time of accident. She will have to spend all her life just with the nostalgic moments she had spent with the deceased. With no other male member in the family, she would definitely miss the care, affection and guidance of the deceased. The appellant No. 2 was only one year old. Literally, the minor child cannot remember even the face of her father. She will have to spend all her life just with the nostalgic moments she had spent with the deceased. With no other male member in the family, she would definitely miss the care, affection and guidance of the deceased. The appellant No. 2 was only one year old. Literally, the minor child cannot remember even the face of her father. Her entire life would have to be spent without the guidance, care, love and affection of the deceased. The appellant No. 3 lost her one and only son, who was the breadwinner of the family. Considering all the above, the compensation towards loss of love and affection is fixed at Rs. 25,000 for each of the appellants. 17. The next point is funeral expenses. In the judgment relied upon by the counsel for the claimants reported in Rajesh and Others Vs. Rajbir Singh and Others, (2013) 9 SCC 54 , the Apex Court has held in para 21 as follows: "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'funeral expenses'. The 'price index', it is a fact, has gone up in that regard also. The head 'funeral expenses' does not mean the fee paid in crematorium or the fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'funeral expenses', in absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000." 18. Considering the culture and practices in the society and following the ratio laid down by the Apex Court in the above judgment, I find the claim reasonable and, therefore, enhance the compensation towards funeral expenses to Rs. 20,000. 19. This court finds no valid reasons to interfere with other portions of the award and the award is enhanced as follows: Respondent No.3 shall deposit the difference amount with the award amount with same interest at the rate of 7.5 per cent per annum within 8 weeks from the date of receipt of copy of this order. 20,000. 19. This court finds no valid reasons to interfere with other portions of the award and the award is enhanced as follows: Respondent No.3 shall deposit the difference amount with the award amount with same interest at the rate of 7.5 per cent per annum within 8 weeks from the date of receipt of copy of this order. The claimants shall remit the additional court-fee within 4 weeks failing which the enhanced amount shall not carry any interest. Out of the enhanced award amount, the claimant No.1 is entitled to Rs. 5,37,300, the claimant No.2 is entitled to Rs.2,50,000 and the claimant No.3 is entitled to Rs.1,50,000. On deposit by the insurance company, the claimants, except the minor claimant, are entitled to withdraw the same by filing appropriate application and in respect of the share of the minor, the direction of the Tribunal to deposit the same holds good. In the result, the appeal is allowed with costs.