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2020 DIGILAW 1748 (MAD)

M. Zahara Jabeen Ismail v. S. Sreenivasulu

2020-09-30

S.M.SUBRAMANIAM

body2020
JUDGMENT : (The Civil Miscellaneous Appeal is preferred under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 14.07.2015 passed in M.C.O.P. No.1761 of 2011 on the file of the learned Special District Judge, Special District Court-cum-Motor Accidents Claims Tribunal, Salem. 1. The judgment and decree dated 14.07.2015 passed in M.C.O.P. No.1761 of 2011 by the learned Special District Judge, Special District Court-cum-Motor Accidents Claims Tribunal, Salem, is under challenge in the present Civil Miscellaneous Appeal. 2. The claimants, who are the appellants herein, have filed the present Civil Miscellaneous Appeal, seeking enhancement of compensation. 3. The accident occurred on 17.09.2008 at about 11.30 Hours at Dharmapuri to Salem Main Road, near Dr.Subramanian Thottam. The Devattipatti Police Station registered a case in Crime No.438 of 2008 under Sections 279, 337 and 304 (A) of IPC. 4. The deceased, at the time of accident, was aged about 37 years and was working as Electronics Technician at H1-F1, Solutions No.267, Kilpauk Garden Road, Kilpauk, Chennai. The monthly income of the deceased was taken as Rs.25,000/- in the claim petition. Due to the accident, the deceased sustained serious multiple injuries and died. 5. The claim petition was filed by the appellants-claimants, who are the wife and minor son of the deceased, before the Tribunal. 6. The Tribunal adjudicated the issues with reference to the documents and evidences produced by the respective parties. 7. As far as the negligence aspect is concerned, the Tribunal relied on the First Information Report (FIR) as well as the oral evidence of PW-2 Mr.Rafi. The FIR as well as the deposition of PW-2 corroborates and the respondents had not rebutted or produced any contra evidence to disbelieve the contentions in the FIR as well as the evidence of PW-2. Thus, the Tribunal arrived a conclusion that the driver of the lorry bearing Registration No.AP-02-T-2439 is responsible for the cause of the accident and consequently, the second respondent-Insurance Company is liable to pay compensation to the appellants-claimants. 8. Regarding the quantum of compensation is concerned, the Tribunal awarded a sum of Rs.10,77,000/-. The Tribunal has fixed the monthly income of the deceased as Rs.9,000/-. 9. The learned counsel appearing on behalf of the appellants-claimants contended that the monthly income fixed by the Tribunal is erroneous and the deceased was working as an Electronics Technician and the claimants had filed the Income Tax particulars. The Tribunal has fixed the monthly income of the deceased as Rs.9,000/-. 9. The learned counsel appearing on behalf of the appellants-claimants contended that the monthly income fixed by the Tribunal is erroneous and the deceased was working as an Electronics Technician and the claimants had filed the Income Tax particulars. Though the Income Tax particulars were marked as documents before the Tribunal, the Tribunal without considering all those documents, arrived a unilateral conclusion that the monthly salary of the deceased is to be fixed as Rs.9,000/-. Thus, the claimants have chosen to file the present Civil Miscellaneous Appeal, seeking enhancement of compensation. 10. The learned counsel appearing on behalf of the second respondent-Insurance Company disputed the contentions raised on behalf of the appellants-claimants, by stating that the claimants had not produced any other Salary Certificate or details regarding the monthly salary. However, the Tribunal has fixed the notional income of Rs.9,000/- per month for the purpose of quantifying the compensation. This apart, the Tribunal has considered all these aspects and accordingly, granted a reasonable compensation and therefore, the Civil Miscellaneous Appeal is liable to be dismissed. 11. This Court is of the considered opinion that the appellants-claimants had established the factum regarding the accident. The Tribunal made a categorical finding that the driver of the lorry had driven the vehicle in a rash and negligent manner and caused the accident. Thus, the lorry driver has committed an act of negligence. 12. As far as the quantum of compensation is concerned, the wife and the minor son of the deceased have filed the claim petition before the Tribunal. The deceased was aged about 37 years at the time of accident. Though he had not produced the Salary Certificate issued by the employer, the claimants had submitted the Income Tax particulars, which is marked as Ex.P-9. When the Income Tax Payment Receipt has been produced as a document before the Tribunal, the Tribunal ought to have considered the same. The deceased was an Income Tax Assessee and he paid the Income Tax and produced document to that effect, which is not disputed by the respondents. Thus, the Tribunal ought to have fixed the income based on the Income Tax particulars. 13. As per the Income Tax Returns of the Financial Year 2007-2008, the annual income of the deceased was stated as Rs.1,58,850/-. Thus, the Tribunal ought to have fixed the income based on the Income Tax particulars. 13. As per the Income Tax Returns of the Financial Year 2007-2008, the annual income of the deceased was stated as Rs.1,58,850/-. Wherein the annual income of the deceased was Rs.1,58,850/-, as per the Income Tax Return, then the Tribunal ought to have taken the said income as an acceptable income of the deceased and accordingly, calculated the compensation to be paid to the appellants-claimants, but on the contrary, the Tribunal has fixed Rs.9,000/- without any basis. The notional monthly income shall be fixed only if there is no proof of income or any documents to that effect is available. If the claimants have not produced any document to establish the monthly income of the deceased, then the Tribunal can assess the prevailing salary for a particular job in a particular locality based on the minimum wages principles and accordingly, fixed the notional monthly income. 14. The monthly income of the deceased cannot be fixed based on presumptions or assumptions. There must be a logical reasoning for the purpose of arriving such a conclusion. While arriving a conclusion, various factors regarding the nature of job area in which the injured or deceased was working at the time of the accident as well as the prevailing wages for the particular job. All are to be considered as an important factor for the purpose of fixing the monthly income of the accident victims. Contrarily any guess work or presumptive fixation will lead to disastrous consequences. The said kind of fixation will create not only inconsistency but will lead to doubt in the minds of the public at large. The Courts are expected to be consistent in grant of compensation. Equalities cannot be treated unequivocally. 15. This being the constitutional principles, the grant of just compensation is to be decided based on the principles of reasonableness and the reasonings given must be logical and based on the established principles. It is not as if the Courts can just fix the compensation as the Courts think at the time of hearing of the petition. Broad principles are already laid down by the Apex Court as well as by the High Courts. The principles laid down are to be carefully adopted while quantifying the compensation in each and every cases. 16. It is not as if the Courts can just fix the compensation as the Courts think at the time of hearing of the petition. Broad principles are already laid down by the Apex Court as well as by the High Courts. The principles laid down are to be carefully adopted while quantifying the compensation in each and every cases. 16. This Court is witnessing large number of such cases where the Tribunals are awarding compensation by fixing the notional monthly income on the presumptive basis. Such fixation is not only impermissible and it will create doubts in the minds of the public at large and the said method of fixing the notional income must be avoided by the Tribunal at all circumstances. Uniformity and consistency among the similar victims equally are important constitutional principles as well as the rights of the citizens of this Great Nation. Thus, the Tribunals are bound to follow such principles, while fixing the monthly income of the accident victims and accordingly quantified the compensation in a consistent manner. 17. In the present case, the appellants-claimants had produced the Income Tax Returns, which was not disputed by the second respondent-Insurance Company. Thus, the Tribunals ought to have taken the Income Tax Returns particulars for the purpose of fixing the monthly income of the deceased person and accordingly, granted the compensation. But the Tribunal has fixed the monthly income of the deceased as Rs.9,000/- without any basis and therefore, this Court is not inclined to accept the fixation of the Tribunal and accordingly, inclined to enhance the compensation by fixing the monthly income of the deceased as Rs.13,237.50. 18. As per the Income Tax Returns of the year 2007-2008, the annual income of the deceased is stated as Rs.1,58,850/-. Thus, the monthly income of the deceased can be conveniently fixed as Rs.14,000/-. 40% future prospects are to be added as the deceased was aged about 37 years at the time of accident. One-third (1/3rd) deduction for the personal expenses is to be made and multiplier 15 is to be adopted. Thus, the compensation for dependency is calculated as Rs.23,52,060/-. Thus, the monthly income of the deceased can be conveniently fixed as Rs.14,000/-. 40% future prospects are to be added as the deceased was aged about 37 years at the time of accident. One-third (1/3rd) deduction for the personal expenses is to be made and multiplier 15 is to be adopted. Thus, the compensation for dependency is calculated as Rs.23,52,060/-. In view of the fact that the dependency compensation is enhanced, the compensation awarded by the Tribunal stands modified as detailed hereunder:- Loss of Dependency (Rs.13,067/-x12x15) Rs.23,52,060/- Loss of Consortium for wife 40,000/- Love and Affection for the minor son 40,000/- Funeral Expenses 15,000/- Loss of Estate 15,000/- Total Rs.24,62,060/- Thus, the appellants-claimants are entitled for a total compensation of Rs.24,,62,060/- with accrued interest at the rate of 7.5% per annum. 19. The second respondent-Insurance Company is directed to deposit the entire award amount with accrued interest, within a period of twelve weeks from the date of receipt of a copy of this judgment and on such deposit, being made, the appellants-claimants (as the second appellant now attains the age of majority) are permitted to withdraw their respective portion of the award amount as apportioned by the Tribunal in its award by filing an appropriate application before the Tribunal and payments are to be made through RTGS. The appellants-claimants are directed to pay the additional court fee, if any, within a period of two weeks from the date of receipt of a copy of this judgment. 20. Accordingly, the judgment and decree dated 14.07.2015 passed in M.C.O.P. No.1761 of 2011 by the learned Special District Judge, Special District Court-cum-Motor Accidents Claims Tribunal, Salem, stands modified and consequently, CMA No.4143 of 2019 is allowed in part. However, there shall be no order as to costs.