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2018 DIGILAW 3808 (MAD)

MANAGING DIRECTOR, STATE EXPRESS TRANSPORT CORPORATION (TAMIL NADU) LTD v. SARAVANA RUBAN

2018-10-12

C.T.SELVAM, M.V.MURALIDARAN

body2018
JUDGMENT C.T.Selvam, J. This appeal and cross objection arise against the judgment of Motor Accident Claims Tribunal, II Small Causes Court, Chennai, passed in M.C.O.P.No.2037 of 2009 on 30.04.2013. 2. Appellant is a transport corporation. Cross Objector is the claimant. Respondent/Cross Objector suffered an accident on 18.03.2009 at 11.30 hours. He was proceeding on a motor cycle from Pondicherry to Marakkanam. He was hit by a bus belonging to appellant transport corporation and suffered injuries resulting in hospitalization for a period of nine days. Alleging that the accident occurred owing to the rash and negligent driving of the bus, that he had lost total use of his right arm, that he was employed as Junior Resident B.D.S at JIPMER Hospital, Puducherry and earning a monthly salary of Rs. 35,047/- and that appellant transport corporation was liable to pay compensation in a sum of Rs. 1,00,00,000/-, respondent/cross-objector moved M.C.O.P.No.2037 of 2009 on the file of Motor Accident Claims Tribunal, II Small Causes Court, Chennai. 3. Before the Tribunal, respondent/cross-objector examined himself and a Doctor and marked eight exhibits. Appellant transport corporation examined the driver of the bus. 4. On appreciation of materials before it, Tribunal, under judgment dated 30.04.2013, found that the accident has occurred owing to the rash and negligent driving of the bus and awarded compensation as follows: (a) Loss of earning power (Rs.35,047 * 12 * 18 * 85%) Rs.64,34,700/- (b) Medical expenses Rs. 1,52,500/- (c) Loss of income for 3 months Rs. 1,05,150/- (d) Loss of amenities of life and mental agony to the Rs. 50,000/- (e) Pain and suffering Rs. 25,000/- (f) Transportation Rs. 10,000/- (g) Extra Nourishment Rs. 10,000/- (h) Attender charges Rs. 10,000/- (i) Damage to clothes Rs. 2,000/- Total Rs.67,99,350/- The said sum of Rs. 67,99,350/- was directed to be paid with interest at 7.5% p.a. from the date of petition till the date of deposit. There against, appellant transport corporation preferred the present appeal. Seeking enhancement of compensation, cross-objector/respondent has filed the cross-objection. 5. Heard Mr.K.Venkatramani, learned Additional Advocate General assisted by Mr.P.Paramasivadoss, learned counsel for appellant transport corporation and Mr.U.M.Ravichandran, learned counsel for respondent/cross-objector. 6. Learned Additional Advocate General for appellant transport corporation contended that the tribunal erred in passing its award as it had been admitted by respondent/cross-objector that if he had looked from side to side, he could have avoided the accident. 6. Learned Additional Advocate General for appellant transport corporation contended that the tribunal erred in passing its award as it had been admitted by respondent/cross-objector that if he had looked from side to side, he could have avoided the accident. Such admission of respondent/cross-objector informs the case of contributory negligence and respondent/cross-objector ought to have impleaded the insurer of his motor cycle as a party to the proceedings. There was no sufficient proof for the employment of respondent/cross-objector and further, Tribunal ought not to have adopted the multiplier method in fixing the quantum of compensation. In any event, determination of disability at 85% was misplaced. The Doctor had not treated the respondent/cross-objector. The Tribunal fell into error in accepting the total salary at Rs. 35,047/- without taking into consideration the income-tax liability of respondent/cross-objector. In any event, respondent/cross-objector presently is gainfully employed. Amidst, other decisions, learned Additional Advocate General placed reliance on the decisions of the Apex Court in National Insurance Co. Ltd. v. Indira Srivastava and Others, (2008) 2 SCC 763 and Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . 7. Learned counsel for respondent submitted that Tribunal was right in awarding compensation but had erred in not considering future earning prospects. Learned counsel referred to the decision of Apex Court in Dinesh Singh v. Bajaj Allianz General Insurance Co. Ltd, (2014) 1 TNMAC 641 (SC). 8. We have considered the rival submissions. 9. We are of the view that the Tribunal quite rightly has relied on Ex.P6 - Pay Certificate issued by Accounts Officer, JIPMER Hospital, Puducherry, towards satisfying itself of respondent/cross-objector being an employee of JIPMER Hospital, Puducherry and accepting the sum of Rs. 35,047/- informed as his monthly earning. Appellant, who has not produced any contra evidence, cannot now be permitted to challenge such finding. From the evidence of PW-2, Doctor, which finds support in Ex.P8 - Disability Certificate, it is clear that respondent/cross-objector had suffered total loss of his arm. Appellant transport corporation has not produced any proof of the present employment of respondent/cross-objector. We would find that as the respondent has been a regular employee of JIPMER Hospital, Puducherry, as exhibited in Ex.P6 and has suffered total loss of his right arm which disables him from carrying out his function as a Dentist. 10. Appellant transport corporation has not produced any proof of the present employment of respondent/cross-objector. We would find that as the respondent has been a regular employee of JIPMER Hospital, Puducherry, as exhibited in Ex.P6 and has suffered total loss of his right arm which disables him from carrying out his function as a Dentist. 10. In National Insurance Company Limited v. Pranay Sethi and Others, (2017) 16 SCC 680 , the Apex Court has informed that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased had a permanent job and below the age of 40 years should be made. The present is a case of permanent disability and taking into consideration the position that the claimant has not been rendered incapable of doing any work whatsoever, we consider it appropriate to fix the percentage towards future prospects at 40%. 11. Paragraph Nos.9 and 10 of the decision of the Apex Court in Dinesh Singh v. Bajaj Allianz General Insurance Co. Ltd, (2014) 1 TNMAC 641 (SC), informs that once the permanent disability is fixed, the compensation has to be awarded taking into consideration its impact on the employment/profession of the claimant. However, as held in Pranay Sethi's case, the Tribunal has erred in not taking the income tax payable by respondent/cross-objector. 12. The income tax payable by cross-objector/respondent would be: Monthly Salary Rs.35,047/ Add: 40% future prospects Rs.14,019/- (35,047 * 40%) Annual Salary Rs.5,88,792/- (49,066 * 12) Tax payable: Upto Rs. 1,50,000/- Nil Rs.1,50,000/- to Rs. 3,00,000/- Rs.30,000/- (3,00,000*10%) Rs.3,00,000/- to Rs. 5,00,000/- Rs.15,000/- + Rs. 27,758/- [Rs.15,000/- + 20% of the amount exceeding Rs. 3,00,000/-] Total tax payable Rs.72,758/ (Rs.30,000/- + Rs. 42,758/-) 13. Accordingly, the compensation payable under the head "Loss of earning power" would be Rs. 78,95,320/- [((Rs.5,88,792/- (-) Rs. 72,758/-) * 18 * 85%]. The amount awarded under the other heads is confirmed. The total compensation payable would be Rs. 82,59,970/-. Appellant transport corporation is directed to pay the enhanced amount of Rs. 82,59,970/- together with interest at 7.5% p.a. from the date of claim petition till the date of payment, less that already deposited, within a period of six weeks from the date of receipt of this judgment. In the result, (i) C.M.A.No.3419 of 2013 is dismissed. No costs. Connected miscellaneous petitions are closed. 82,59,970/- together with interest at 7.5% p.a. from the date of claim petition till the date of payment, less that already deposited, within a period of six weeks from the date of receipt of this judgment. In the result, (i) C.M.A.No.3419 of 2013 is dismissed. No costs. Connected miscellaneous petitions are closed. (ii) Cross Objection No.47 of 2014 is allowed to the extent indicated above.