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2018 DIGILAW 1605 (MAD)

New India Assurance Co. Ltd. v. Banumathy Anand

2018-04-28

S.VIMALA, T.KRISHNAVALLI

body2018
JUDGMENT : S. VIMALA, J. 1. While the civil miscellaneous appeal has been preferred by the appellant/insurance company challenging the finding of negligence as well as the quantum of compensation, the cross objection has been filed by the claimants seeking for enhancement of compensation. 2. Shorn of unnecessary details, the facts leading to the filing of the appeal could be summarised as under :- On 24.5.2001, while the deceased along with the 1st respondent in the appeal were proceeding to Trichy in the car bearing Regn. No.TN-59-A-2354, while nearing TMT Company near Viralimalai, the lorry, bearing Regn. No.TN- 69-1177, belonging to the 4th respondent in the appeal, coming from the opposite direction, driven by its driver in a rash and negligent manner, collided with the car in which the deceased was travelling due to which the driver of the car as also the deceased and his wife sustained injuries. The occupants of the car, as detailed above, were rushed to the hospital at Trichy for treatment. However, inspite of treatment, the deceased succumbed to the injuries on 19.6.2001, i.e., after 25 days of the accident. The claimants, viz., respondents 1 to 3 in the appeal, filed claim petition, claiming compensation in a sum of Rs.40,0,000/=, on the ground that the accident was caused due to the rash and negligent driving by the driver of the lorry and, therefore, the 4th respondent in the appeal, as the owner of the lorry and the appellant in the appeal, as the insurer of the lorry are jointly and severally liable to pay the compensation. 3. According to the claimants, the deceased was aged 71 years and was a practicing doctor, both in allopathy and homeopathic medicine and that he was also a member of various Corporations and had also rendered service in the Army and was a Major in the Army and that he retired as a Surgeon from Government Service. The deceased was hale and healthy at the time of the accident and, but for the accident, the deceased would have lived for more than a decade. It was the further stand of the claimants that the deceased was earning a sum of Rs.60,000/= per month and that he was assessed to income tax. 4. To substantiate their claim, the claimants examined P.W.s 1 to 4 and marked Exs.P-1 to P-25. It was the further stand of the claimants that the deceased was earning a sum of Rs.60,000/= per month and that he was assessed to income tax. 4. To substantiate their claim, the claimants examined P.W.s 1 to 4 and marked Exs.P-1 to P-25. Though no witness was examined on the side of the owner and insurer of the offending vehicle, however, Ex.R-1 series was marked on the side of the respondents in the claim petition. The Tribunal, based on the oral and documentary evidence, while found that the accident had happened due to the rash and negligent driving by the driver of the lorry, fixed the liability to compensate the claimants on the owner of the lorry and as the lorry was insured with the appellant herein, the insurer of the lorry was directed to pay the compensation to the claimants. The Tribunal awarded compensation under the following heads :- Head By the Tribunal Loss of Income 13,74,895/= Funeral Expenses 2,000/= Loss of Consortium -- Loss of Love & Affection 20,000/= Loss of Estate -- Medical Bills (3,51,527 + 12,097) 3,63,624/= Total 5. Aggrieved by the finding of negligence and the quantum of compensation awarded as excessive, while the appellant/insurance company has preferred the appeal, the cross objectors/claimants before the Tribunal, challenging the award as inadequate and meagre, has filed the cross objection seeking for enhancement. 6. Learned counsel appearing for the appellant/insurance company submitted that the finding of the Tribunal that the accident had happened due to the rash and negligent driving by the driver of the lorry without proper reference to the rough sketch is not sustainable. It is further submitted that the reliance placed on the FIR and judgment of the criminal court without adverting to the rough sketch is per se impermissible and the finding deserves to be set aside. It is the further submission of the learned counsel that the fixation of monthly income is not correct as the documentary evidence do not substantiate the same. Further the adoption of multiplier of 5 when the deceased was said to be aged 71 years without properly appreciating the attendant facts and circumstances is liable to be interfered with. 7. Per contra, learned counsel appearing for the claimants/cross objectors submit that the income fixed by the Tribunal is erroneous and against the well accepted ratio laid down by the Supreme Court. 7. Per contra, learned counsel appearing for the claimants/cross objectors submit that the income fixed by the Tribunal is erroneous and against the well accepted ratio laid down by the Supreme Court. It is the submission of the learned counsel for the cross objectors that the Tribunal ought to have fixed the yearly income on the basis of last filed income tax return and should not have taken the average of the income as reflected in the income tax returns of the last three years. To substantiate the above contention, reliance was placed on the decision of the Apex Court in Shashikala & Ors. – Vs - Gangalakshmamma & Anr. (2015 (1) TN MAC 785 (SC)). It is the further submission of the learned counsel for the cross objectors that the multiplier fixed at 5 is on the lower side. It is the submission of the learned counsel that greater the experience, greater would be the intellectual skill, more so, considering the profession of the deceased being a doctor of long standing, the Tribunal ought to have adopted a higher multiplier. In this regard, reliance was placed on the decision of this Court in Gnanam Santhanam - Vs - M/s. Sathyalakshmi Enterprises & Ors. (2004) (2) TNMAC 110 (DB)). In fine, it is submitted that this Court has to fix the yearly income on the basis of the last filed income tax return and also adopt a higher multiplier keeping in mind the experience of the deceased and, accordingly, enhance the compensation to be paid to the claimants. 8. This Court gave its anxious consideration to the contentions advanced by the learned counsel appearing on either side and perused the materials available on record as also the findings rendered by the Tribunal and also took into consideration the decisions relied on by the learned counsel for the parties. 9. Though the learned counsel for the appellant/insurance company has contended that the finding of negligence deserves to be sustained as the Tribunal has not properly taken into consideration the rough sketch, but has got carried away by the FIR and the order passed by the criminal court, however, the said contention, even on the cursory glance at the finding of the Tribunal deserves to be rejected. The order of the Tribunal reveals that based on the evidence of P.W.1, the wife of the deceased, who was a passenger in the car that met with the accident, coupled with the documentary evidence, viz., Exs.P-1 to P-3, of which Ex.P-3 is the order of the criminal court, which reveals that the driver of the offending vehicle, viz., the lorry, has accepted his negligence and has paid the fine, has went on to hold that once the driver of the lorry has accepted his fault and submitted that the accident has happened due to his rash and negligent driving and has paid the penalty, the contention of the appellant/insurance company that no reliance has been placed on the rough sketch, cannot be sustained. The rough sketch of the scene of occurrence is prepared for the purpose of understanding the scene and the state in which the various vehicles were found at that particular point of time. The rough sketch, in itself, cannot be taken as the evidence to come to a conclusive finding one way or the other. All other documents have to be taken as a whole to come to a categorical finding relating to the way in which the accident had happened. Once the driver of the offending lorry has accepted that he has been responsible for the accident, which fact is equally reflected in the FIR as also the testimony of the eye witness and other documentary evidence, the contention of the appellant/insurance company to the contra does not merit acceptance, as admission is the best evidence. Accordingly, the finding of negligence, on the part of the driver of the lorry, rendered by the Tribunal deserves to be sustained and, accordingly, the same is confirmed. 10. The next issue that needs to be considered is the quantum of compensation. While it is the submission of the learned counsel for the insurance company that the compensation awarded is excessive, however, the same is countered by the learned counsel for the cross objectors contending that the course adopted by the Tribunal in fixing the income based on the average of three years income as reflected in the income tax returns is against the ratio laid down by the Apex Court and, therefore, the same needs to be interfered with. 11. 11. It is trite that the last drawn income of the individual is taken for the purpose of fixing the monthly/yearly income of the individual. It has been held time and time again that when documentary proof is filed to substantiate the income of the individual relating to the particular time period, it is the duty of the Court to rely on the same and fix the income rather than going on an expedition by trying to fix the income on the basis of extraneous materials. In this regard, reliance was placed on the decision of the Supreme Court in Shashikala's case (supra), wherein, the Supreme Court has categorically held that taking the average of income of two assessment years is not justified and the income as shown in the recent income tax return has to be taken for the purpose of fixing the yearly income. 12. In the present case, the accident has happened in the year 2001, more particularly on 24.5.2001. The income for the year 2000-2001 ends on March, 2001 and the returns are supposed to be filed on or before 31st July, 2001. The claimants have filed had income tax return for the year ending 31.3.2001, which is marked as Ex.P-10 and also filed the return for the deceased from 1.4.2001 to 19.6.2001, the date on which he died, which is marked as Ex.P-11. From 24.5.2001 to 19.6.2001, the deceased was hospitalized. Therefore, the income tax return for the year 2000 - 2001 would be the best proof to fix the income of the deceased. 13. As culled out by the Tribunal from the income tax return for the financial year 2000-2001, the income of the deceased is shown as Rs.4,72,352/=. Therefore, the yearly income of the deceased should be taken as Rs.4,72,352/= and not the average of the income of the last three years. Accordingly, this Court fixes the yearly income of the deceased at Rs.4,72,352/-. From the amount of Rs.4,72,352/-, 10% ought to be deducted towards income tax. Therefore, a sum of Rs.47,352/- requires to be deducted towards income tax and the net yearly income of the deceased is quantified at Rs.4,25,117/-. 14. The Tribunal has deducted 1/3rd of the income earned by the deceased towards personal expenses. From the amount of Rs.4,72,352/-, 10% ought to be deducted towards income tax. Therefore, a sum of Rs.47,352/- requires to be deducted towards income tax and the net yearly income of the deceased is quantified at Rs.4,25,117/-. 14. The Tribunal has deducted 1/3rd of the income earned by the deceased towards personal expenses. As per the ratio laid down in Sarla Verma's case ( 2009 (6) SCC 121 ), when the claimants are less than four in number, 1/3rd needs to be the deduction to be made towards personal expenses. However, in the case on hand, it is seen that the deceased is aged 71 years. In such a scenario, it is necessary for this Court to consider whether 1/3rd deduction towards personal expenses is justifiable. 15. The Supreme Court has categorically observed in Sarla Verma's case (supra) that for bachelor, the deduction to be made is 50%. However, in the same stretch, the Supreme Court has also observed that where the dependency on the bachelor is more, deduction of 1/3rd is also permissible. Taking a cue from the said decision, it is to be mentioned that the deceased is aged 71 years. A person in the above said age group, the expenses towards personal living will not be far too high, unlike the bachelors, who require much more expenses to maintain their standard of living. Aged persons would be more apt to save rather than spend so that they can leave a treasure trove for their children. 16. In the present case as well, the deceased was 71 years old on the date of accident. The expenses towards his personal living expenses could not be higher warranting deduction of 1/3rd. Though the claimants are three in number, however, deduction at 1/3rd is a bit higher. This Court is of the considered opinion that a deduction of 1/4th towards the personal expenses of the deceased would be a reasonable deduction, keeping in mind the age of the deceased as also the number of claimants. Accordingly, this Court fixes 1/4th as deduction towards personal expenses of the deceased. 17. This Court is of the considered opinion that a deduction of 1/4th towards the personal expenses of the deceased would be a reasonable deduction, keeping in mind the age of the deceased as also the number of claimants. Accordingly, this Court fixes 1/4th as deduction towards personal expenses of the deceased. 17. Learned counsel appearing for the cross objectors has contended that the multiplier adopted is on the lower side and an enhanced multiplier needs to be adopted keeping in mind the long and rich experience of the deceased in the field of Medicine, he having received many accolades and has greatly recognised in the social circles for his medical acumen. Reliance has been placed on the decision of this Court in Gnanam Santhanam's case (supra). In the said case, the deceased was a musician aged 67 years and a person of eminence. Another eminent musician, aged 88 years was examined, who deposed that in the field of music, eminent persons could hold the field effectively till the age of 85 to 90 years. It was the further deposition therein that the deceased, at the time of his death was hale and healthy and was in the peak of his career in the field. Therefore, relying on the said decision, it is sought to be contended that the deceased in the present case being a professional with long standing repute and rich experience, should be considered to be in his peak of his career and, accordingly, higher multiplier ought to have been adopted. Further, it is also contended that the annual income of the deceased is seen to be increasing as is evident from the income tax returns and, therefore, the ability of the deceased to earn much more in the coming days needs to be considered and appropriate multiplier should be adopted. 18. Though the records reveal that the deceased was a Major from the Army and retired from Government Service and is privately practicing. The income tax returns of the deceased reveal only a marginal increase in income. The marginal increase in income can be attributed to the rising cost of living and cannot be taken as an yardstick to determine the eminence of the person in the respective field. Further, the deceased, though said to be a Surgeon, who retired from Government Service, age would definitely be a bar in conducting surgeries when the person ages. The marginal increase in income can be attributed to the rising cost of living and cannot be taken as an yardstick to determine the eminence of the person in the respective field. Further, the deceased, though said to be a Surgeon, who retired from Government Service, age would definitely be a bar in conducting surgeries when the person ages. Though the Tribunal has not reasoned out clearly for fixing the multiplier at 5, however, this Court, for the reasons aforesaid, is of the considered view that the multiplier fixed at 5 can neither said to be excessive nor said to be meagre and is a just and reasonable multiplier considering the age and other contributing evidences available on record. Accordingly, the multiplier of 5 adopted by the Tribunal is confirmed. Further, for the reasons aforesaid, this Court is not inclined to consider any increase towards the future prospective increase in income of the deceased. 19. Accordingly, while fixing the yearly income at Rs.4,73,352/= as assessed by the Tribunal based on the income tax returns for the year 2000- 2001, deduction of 10% is made towards income tax and accordingly, the net income of the deceased is quantified at Rs.4,25,117/=. Deducting 1/4th towards the personal expenses of the deceased and adopting multiplier of 5, the loss of income to the family is quantified at Rs.15,94,190/= (Rs.4,25,117 X 5 X,). 20. Insofar as the compensation awarded towards non-pecuniary heads are concerned, a perusal of the award passed by the Tribunal reveals that a sum of Rs.20,000/- has been awarded towards love and affection and a sum of Rs.2,000/- has been awarded towards funeral expenses. Medical Expenses has been awarded at actuals on the basis of the documentary evidence submitted before the Tribunal. 21. It is the contention of the learned counsel for the cross objectors that the compensation awarded under funeral expenses is on the lower side and no amount has been awarded towards loss of consortium and loss of estate. In this regard, reliance was placed on the decision of the Constitution Bench in the case of National Insurance Co. Ltd. - Vs Pranay Sethi & Ors. (2017 (6) SCC 680). 22. The Constitution Bench, in Pranay Sethi's case (supra), has quantified the funeral expenses at Rs.15,000/=, loss of consortium at Rs.40,000/- and loss of estate at Rs.15,000/=. In this regard, reliance was placed on the decision of the Constitution Bench in the case of National Insurance Co. Ltd. - Vs Pranay Sethi & Ors. (2017 (6) SCC 680). 22. The Constitution Bench, in Pranay Sethi's case (supra), has quantified the funeral expenses at Rs.15,000/=, loss of consortium at Rs.40,000/- and loss of estate at Rs.15,000/=. Accordingly, while the compensation under the head funeral expenses is enhanced to Rs.15,000/= from Rs.2,000/=, compensation under the heads loss of consortium and loss of estate is awarded at Rs.40,000/- and Rs.15,000/- respectively. 23. Accordingly, the compensation awarded by the Tribunal is modified and the break up of the compensation under the various heads are tabulated hereunder :- Head By the Tribunal By this Court Loss of Income 13,74,895/= 15,94,190/= Funeral Expenses 2,000/= 15,000/= Loss of Consortium -- 40,000/= Loss of Love & Affection 20,000/= 20,000/= Loss of Estate -- 15,000/= Medical Bills (3,51,527 + 12,097) 3,63,624/= 3,63,624/= Pain & Suffering during treatment period + incidental expenses - 50,000/- Total Rs.17,60,520/= Rs.20,97,814/= (Rounded off toRs.20,98,000/=) 24. Accordingly, the compensation awarded by the Tribunal is enhanced to Rs.20,98,000/= from Rs.17,60,520/= with interest at 9% p.a. from the date of petition till date of deposit. 25. For the reasons aforesaid, the civil miscellaneous appeal is dismissed and the cross objection is allowed in part enhancing the compensation from Rs.17,60,520/= to Rs.20,98,000/= with interest at 9% p.a. from the date of petition till date of deposit. However, there shall be no order as to costs in this appeal/cross objection. Consequently, connected miscellaneous petition is closed. 26. The appellant/insurance company is directed to deposit the award amount along with interest as quantified by this Court above, less the amount, if any deposited, to the credit of the claim petition, within a period of four weeks. On such deposit being made, the Tribunal is directed to transfer the amount directly to the bank account of the respective claimants, as per the ratio of apportionment ordered by the Tribunal, through RTGS, within a period of two weeks thereafter.