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2014 DIGILAW 603 (MAD)

B. Shanthi v. Sudhakar Darla

2014-03-07

S.MANIKUMAR

body2014
Judgment : 1. Being not satisfied with the quantum of compensation of Rs.26,08,840/-with interest at the rate of 7.5% from the date of claim, awarded to the wife, three minor children and mother of the deceased, Civil Miscellaneous Appeal has been filed for enhancement of compensation. The appellants seemed to have filed an application for amendment of the claim amount to Rs.15 Lakhs to 30 Lakhs, after the award in M.C.O.P.No.208 of 2011 on the file of the Motor Accidents Claims Tribunal (II Small Causes Court), Chennai. 2. Perusal of the award shows that the age of the deceased has been mentioned as 35 years. He was stated to be a driver and earned Rs.10,000/- at the time of accident. The Date of Birth as per Ex.P7, driving licence has been mentioned as 30.07.1975. The accident has taken place on 18.12.2010. On the basis of the Date of Birth in the driving licence, the tribunal has fixed the age of the deceased as 35 years. As regards the income of the deceased the appellants/claimants have examined one Mr. G.Dhanasekaran, stated to be a Supervisor of Fuso Glass India Private Limited. He has deposed that a sum of Rs.12,010/- was paid as monthly salary. Though, he has also deposed that a sum of Rs.100/- would be paid per day, as batta and a further sum of Rs.750/-would be paid, for every trip to Bangalore, Hyderabad and Trivendram, trip batta receipts produced before the tribunal were only for three months i.e, September 2010, October 2010 and November 2010. Before, the claims tribunal, no document has been filed to prove that the deceased had taken trips, continuously every year and paid Rs.750/-. The supervisor has also not produced any ledger to prove that the deceased paid trip batta. However, based on Ex.P10, salary slip for the month of November 2010, the claims tribunal has fixed the income of the deceased at Rs.12,010/-, gross income. 3. It is well settled in catena of decisions, that for the purpose of computing loss of contribution to the family, the claims tribunal, has to take that portion of the income, to be paid to the employee after making the statutory deductions, if any, income tax, dues to the employer, etc., and these deductions are not to be taken, for the purpose of computing the loss of contribution to the family. Statutory deductions cannot form part of income. Statutory deductions cannot form part of income. Savings and other contributions of the employee, to be refunded at the time of retirement, as per the statutory provisions, governing such deposit, are to be treated as deferred payments. In the case on hand without recording any deductions, Rs.12,010/- the gross income of the deceased has been taken into consideration for the purpose of computing the loss of contribution to the family, and applying the decision in Santosh Devi Vs. National Insurance Company Ltd., reported in 2012 (2) TNMAC 1 (SC), the claims tribunal has added 30% of the salary, for the purpose of assessing loss of contribution to the family. Thus, the tribunal has fixed the income as Rs.15,613/- (Rs.12,010/- x 30% = Rs.3,603/-+ gross income Rs.12,010/-). The annual income works out to Rs.1,87,356/-Even the abovesaid amount is taxable. But, while determining the income for the purpose of computing the loss of contribution to the family, there is no tax deduction. The tribunal by applying 17' multiplier and after deducting 1/4 towards the personal and living expenses awarded a sum of Rs.23,88,840/-. In addition to the above, the tribunal has awarded Rs.1,00,000/- towards consortium, Rs.20,000/- for funeral expenses and Rs.25,000/- each for petitioners 2 to 5, towards love and affection. Altogether, the tribunal has awarded Rs.26,08,840/- as compensation, with interest at the rate of 7.5% per annum from the date of claim. 4. Though Mr. Varadha Kamaraj, learned counsel for the appellants, placing reliance on Rajesh and Others Vs. Rajbir Singh and Others, reported in 2013 ACJ 1403, submitted that the claims tribunal, ought to have taken 50% of the actual income, for future prospects and thereafter, computed the loss of contribution to the family, instead of adopting 30% hike, in the salary towards future prospects, this Court is not inclined to accept the said contentions, for the reason that in the above reported judgment, the deceased, was an employee in Government sector, aged about 33 years and while considering future prospects, the Apex Court held that 50% of the salary should be added as future prospects, but at the same time, observed that the income taken is subject to deductions of tax. 5. First of all, In the case on hand, Rs.12,010/-, gross income has been taken without any deductions. 5. First of all, In the case on hand, Rs.12,010/-, gross income has been taken without any deductions. At Column No.5 of the claim petition, "name and address of the employer, if any of the deceased", the claimants have stated as 'independent profession'. No details have been given as to who was the employer. It is not known as to how, evidence was allowed to be adduced, without any pleadings regarding employment with Fuso Glass India Private Limited, and compensation, be awarded. Going through the material on record, this Court is of the view that the award itself is excessive. It does not require any enhancement. Decision in Rajesh and Others Vs. Rajbir Singh and Others, reported in 2013 ACJ 1403 is inapposite to the facts of the case, for the reason that no deduction has been made from the gross salary, with the addition of 30% of salary. Hence, the Civil Miscellaneous Appeal is dismissed. No costs.